In criminal justice studies multiple definitions of social justice are drawn from a range of philosophies and theories across the social sciences and humanities. The term social justice itself is used in wider society usually to connote both social-solidarity-oriented policies and socially just outcomes for individuals and particular social groups and social classes. The term social justice usually refers to the fair distribution of resources in society and communities steered by state initiatives and governed by the interaction of market, state, and civil society relations. Market-driven policies such as privatization and user-pay principles not only indicate existing injustice and inequality in a capitalist economy but also, without government or community intervention, perpetuate such injustice.
Given the unequal material relations of advanced societies, such fairness in the distribution of goods and assets to all citizens may involve government public policy and strategies of redistribution beginning with initiatives to bring the worst off up to a decent standard of living. This encapsulates the key liberal strategy of social justice, whereas socialist and leftist social democratic ideas of social justice are linked to equalizing society and redistribution policies that can bring the rich and poor closer together across income and wealth disparities.
Conceptions of social justice depend on both the comparative context for each nation-state and the time period in which the term may be used as a political stratagem or policy driver. There are varying conceptions of the term along the political spectrum—liberalism, pluralism, Marxism, feminism, and libertarian (associated with neoconservatism). The concept can become more radical when based on strategies of redistribution of resources and even the overthrow of governmental power. The acceptance of such strategies commonly depends on extant social, economic, and political forces such as state regime types and the intensity of market forces regulated by state activity.
Social Contexts, Values, and Comparative Social Justice
Social justice has been explicitly linked to criminal justice, notably among critical and feminist criminologists. These writers are usually concerned with how the criminal justice system promotes or hinders principles, processes, and outcomes of social justice based on intersections of class, race, gender, and other sociostructural forces in different social contexts and settings. Most focus their analysis within arguments on the socioeconomic logic of capitalism and market economies in general. Thus, the research program for such an agenda is to show how existing social policy and criminal justice arrangements do not meet normative views of social justice that primarily require principles of fairness, equity, and/or redistribution.
These principles or values are required to set socioeconomic and political agendas that can counter the inequalities created by market economies. The social values of equality in the distribution of resources, equity as an outcome for social groups based on equality of opportunity, and adequacy in coverage of benefits are all important dimensions of social welfare policy that can unevenly drive specific areas of policy from health and housing through to transportation, taxation, and social security measures. Public poverty and homelessness-relief programs as a part of poverty alleviation programs, for example, can provide adequacy for the poorest but these programs do not directly promote equality in outcomes or equality of opportunity.
A brief review of some of the general comparative social and economic data gives some measure of social justice across developed affluent countries. There are comparative measures and indexes of social justice that provide empirical evidence for the varying degrees by which countries in the Organization of Economic Cooperation and Development (OECD) are able to promote social justice. A 2011 social justice index that compares OECD countries, for example, uses weighted combinations of six combined factors: poverty prevention, access to education, labor market inclusion, social cohesion and nondiscrimination, health, and intergenerational justice. This shows Anglo democracies such as the United States (ranked 27th), the United Kingdom (15th), and Australia (21st) are performing poorly in terms of the ranking of social justice policy, legislation, and practice in relation to, for example, Iceland, Norway, and Sweden (ranked first, second and fourth).
In social science and criminal justice cross-national research has also examined the correlates between certain crimes and social inequality. Homicide and other violent crimes are usually higher in more unequal societies such as the United States and Australia. It is a small proportion of younger men of poor and working-class backgrounds who predominantly commit violent crimes as a result, it is claimed, of humiliation or shame about their status achievement in society. Female violent offending is relatively minimal by comparison and again this depends on the level of inequality in a society. Further, imprisonment rates are also correlated with cross-country inequality—the greater the inequality the higher the imprisonment rates. Perhaps most startling is the strong correlation of homicide rates and inequality. These positive statistical associations between cross-national measures of inequality, violence, and crime all indicate that the United States is the leading example of the lack of just institutional structures to combat high crime, poverty, and inequality rates. Broad-based welfare state strategies and policies formulated in national policy agendas are designed to address factors such as poverty prevention, access to education, and adequate direct and indirect taxation levels, among a raft of possible initiatives.
Key Theorists in Political Philosophy
Four general political theorists play a large role in any discussion of social justice: John Rawls (1921–2002), Karl Marx (1818–83), Friederich Hayek (1899–1992), and Robert Nozik (1938–2002). Rawls in particular may be compared with Marxist and conservative ideas on justice. These four theorists each provide some central ideas for understanding concepts of social justice, though each represents different political positions.
Programs and policies usually canvas social justice objectives as a challenge to criminalization, over sentencing, and harsh penal processes, and social justice is a global concern in crime-related issues such as terrorism, including suicide bombings, domestic violence, child violence and abuse, drug trafficking, and human trafficking. How concepts of social justice affect the criminal justice process and system in any one country will depend on justice cultures that can harness human capital (the skills, knowledge, and capacities) of police, courts, prosecutors, and correctional systems to govern and regulate their cultural and institutional crime practices and bring about fair and socially just outcomes.
Liberal democratic societies have embraced and perpetuated the practices of individualism and property rights as central to the stability and sustainability of their social systems. This is particularly the case in that sociologically both the police-criminal justice system and the market economy are central to social control and the maintenance of social order and inequality. Questions remain as to what views of social justice in criminal justice regimes across countries support and legitimize or unsettle and challenge such individualism and the centrality of property rights and to what degree.
Rights-Based Justice
Central to John Rawls’s Theory of Justice (1972) is a contractual and liberal democratic idea of social justice. He argues that actors who are economically self-interested and rational will agree to a social contract on social justice. This agreement occurs behind a “veil of ignorance” or the original position if they adhere to two central principles. These principles are (1) the right to equality principle, whereby free speech, assembly, private property, and freedom from arbitrary arrest or seizure are established; and (2) the difference principle, which while allowing for an unequal system must be equally accessible for all (equality of opportunity). Another way of understanding this view is that it supports both equality in principle and equality in process but not equality in social and economic outcomes. More radical versions of liberalism and socialism argue for varying degrees of equality in outcomes.
Rawls’s later work on political liberalism reinforces the view that resource or material distribution can only occur if all strata of society benefit. Thus, the difference principle if applied to the better off means they may be harmed if their wealth is decreased by, for example, stringent adherence to progressive taxation of income and wealth. Critical theorists in the Marxist tradition and critical criminologists might argue that this view perpetuates a conservative ideology of social justice already enshrined in the conventional wisdom of free market capitalism in that it reinforces class inequality and other inequalities dressed up as justice principles. Nonetheless, political liberals insist that criteria and guidelines for social justice are important in setting policy agendas as consistent philosophical argument and in measuring social outcomes from welfare state interventions. The rights-based perspective has significantly influenced both welfare and criminal justice ideology and practice.
Those most closely aligned with this tradition of social justice support the promotion of human, social, and economic rights of citizenship and fair and equitable programs and policies for all citizens. Diverse writers, such as Michael Walzer, Martha Nussbaum, and Amartya Sen, also developed theories of social justice with different and amended varieties of political liberalism to that of Rawls. Walzer’s view is based in a pluralist understanding; Nussbaum’s in the development of human capacities for cultural and social groups, particularly women, against institutional sexism, racism, and inequality; and Sen’s (with some similarity to Nussbaum’s) in building human capacities and human rights to challenge unjust institutions and structures in society. In the liberal tradition those most closely aligned to this view of social justice support the promotion of human, social, and economic rights of citizenship in rejecting Marxist notions of a “false bourgeois ideology” of social justice. They are also closely aligned with what are more recently known as postcolonial and indigenous views of social justice. These views consider the interrelated nature of class, race, and gender in making “White man and his mimics” colonial and postcolonial realities across many societies.
Needs-Based Justice
Underlying the more critical philosophies of social justice is the idea of needs as a priority in social struggle and as political and economic strategies to overcome inequality. As the key philosopher of working-class revolution during the last 100 years Karl Marx surprisingly did not have a systematic or necessarily explicit view of social justice. His theories did, however, directly challenge the social inequality created by capitalism. For Marx it was necessary to understand the political economy of capitalism before the dynamics of justice could be fully worked out. Marxist and radical writers in criminology assert critical positions similar to Marx. In particular, as opposed to liberal ideas of rational actors behind a veil of ignorance, Marx himself would have called this the illusion of liberal justice ideology.
Marxists usually invoke an economic base and superstructure to capitalist societies that is preordered by the dominant or bourgeois ideology of the dominant class or classes. Marx was concerned to critique the later-19th-century conservative and liberal backlash in western Europe against any socialist critique of organized capitalism as on the trajectory to impending and inevitable economic crises and revolution. Marx’s theory was dangerous to the status quo as was later proved in underpinning both nationalist and working-class revolutions of the 20th century. Marx and his coauthor Friedrich Engels (1820–95), argued that bourgeois or ruling-class and middle-class ideologies mask the unequal social reality of capitalism and class struggle as class-based illusion. Conceptions of liberal philosophy are ideological in that they provide an illusionary understanding of the social justice process as nonrevolutionary. Such liberal and conservative views counter the crisis logic of capitalism and are therefore primarily oriented toward reform or toward keeping the status quo of free market capitalism.
Scholars in this tradition use Marxian concepts such as alienation, exploitation, and marginalization as framed by Marx to comprehend class inequality and the capitalist system as political economy. Marx famously said “from each accordingly to his ability, to each according to his need,” and this statement inspired generations of liberal and leftist thinkers to encourage social and economic policies and political agendas based on social need rather than the limitations of rights or deserts discourse.
Deserts-Based Justice
Libertarian ideas usually underpin the more central philosophy to law, order, and criminal justice in the concept of deserts. Conservatives have supported the ideology of small government as a key platform for policy making. This perspective invokes the classical and neoclassical economic principle that the market will provide for all in the modern capitalist economy and only a minimal level of state intervention is required for the most vulnerable and poorest members of society. They also underpin more deserts-oriented rightwing and neoconservative agendas for criminal justice reform. Robert Nozik is one of the main contemporary theorists known for this position.
Following 17th-century political philosopher John Locke (1632–1704), these approaches focus on justice as “deserts,” that is, that those who have provided the effort and output deserve to be rewarded for their toil. Nineteenth-century liberal philosopher John Stuart Mill (1806–73) understood deserts as one dimension of his views on social utilitarianism. Importantly, Mill did not leave the allocation of deserts or need to market mechanisms and only supported property rights if they served justice; clearly, practices of the time such as slavery did not fit such principles. Nozik, on the other hand, and F. A. Hayek before him, embraced a much fuller defense of individual rights based on property rights and the free market to allocate merits and deserts.
According to Hayek and Nozik, there is no social structure that enables collective rights. The mirage of social justice has resulted in the postwar welfare states of Anglo democracies and in western Europe. These states have been constructed on falsehoods about the ability of governments to cater to collective need. If left to the market economy, rather than state intervention, appropriate and fair allocation would occur on the basis of desert and merit. This rejection of state-based centralized control implies a need to return to an individual agenda for needs, wants, and rights as the basis for good small government and less bureaucratic intervention. According to this perspective, social justice is not the only basis for notions of a “good society,” as demonstrated
by affluent democracies that encourage property rights and individual freedoms as central values.
Other Critical Views on Social Justice
Other contemporary theorists, namely the liberal-pluralist and contemporary feminist theories of social justice, round out the range of critical perspectives. Non-Marxists on the liberal-left commonly argue for a more social democratic view of social justice that accepts the shell of capitalism but requires a large public welfare state to challenge or combat inequalities created by the market economy.
Walzer takes this further with a pluralist and cosmopolitan view of social justice by arguing for spheres or multiple dimensions to social justice in different areas of the economy and civil life. There is a plurality of ways goods in the sphere are distributed. Walzer argues for a specific distributive rule for each sphere, for example, “need” for health and welfare, “deserts” for punishment, and “interest and capacity” for specialized education. Other writers have used this analysis to argue for the need to extend democratic values, including social justice, to countries beyond the liberal democracies. For example, cosmopolitan democracy moves beyond global responsibility to democratic objectives such as the control of the use of force, respect for human rights, and self-determination to increase the reach of democratic control into more authoritarian and single-party regimes.
Anglo-American feminist theorists and criminologists have further argued that gender injustice and gender-related crime are ignored or bypassed in Marxist and liberal social justice traditions. Rather than disown such traditions, some feminists challenge and extend these theories of social justice with their own views. Nancy Fraser, for example, provides a three-dimensional view of social justice that includes the need for asset redistribution; the social and public recognition of the marginalized, excluded, and oppressed who are predominantly represented by women and children; and the acknowledgement of justice as a fundamentally political and contested concept in the public sphere. In her last work before her death, I. M. Young takes the politics of recognition and responsibility for justice further, relating this to a sense of shared responsibility for collective action and across borders against racist and sexist structures of privilege and reward.
Some of the main criticism of conventional views also comes from feminist criminologists. Feminist criminology is concerned primarily with how gender and patriarchy interact with crime and the law to produce unequal outcomes and unfairness in the criminal justice system and wider society. These topics particularly relate to gender and the law, gender-related violence, and victimization, including issues and topics such as the media, immigration and human trafficking, pornography, sexual abuse, and assault. The example of domestic or intimate partner violence as both a crime and welfare concern illustrates how feminism has reconceived, publicly highlighted, and changed practices and policies in the area. Such analysis of the need for gendered justice and child justice is also a key feature of child abuse and assault literature. A program example is the Gender Justice agenda of the International Criminal Court (ICC) that since 2010, though producing few prosecutions to date, has focused on rape/sexual assault crimes and war crimes against women and children. According to these feminist views, social justice is conceived as strategies of antiviolence, protection, safety, care of the gendered victim as women and children, and prosecution of the predominantly male offenders.
Finally, it is useful to consider the three sometimes competing viewpoints of the criminal justice system—distributive, retributive, and restorative—that affect those engaged in everyday criminal justice policy and practice. These three conceptions involve different intervention formulations, processes, and outcomes for both offenders and victims of crime and also for citizens in general.
Distributive justice usually refers to the allocation of assets, rewards, and benefits in a society. There are a large variety of approaches to social justice as distributive justice. Retributive justice conceives a just outcome as retribution rather than as fairness or an equalizing strategy in society. Retributive justice involves appropriate responses to harm, notably to victims of crime, including notions of deterrence, retribution, social defense, and rehabilitation approaches to justice. Restorative justice is a later development in criminal justice, which involves the concept of restoration for past crime or misdeeds in the community by perpetrators of crime. Many indigenous communities around the world have some traditional connection to this form of justice. The restorative justice approach has been used as an effective measure in youth justice programs that include juvenile justice conferencing involving mediation between victims and young offenders.
Issues for Criminal Justice Ethics
It is difficult to quantify how much or in what ways principles of social justice influence the everyday behaviors, aspirations, and actions of those who work in the criminal justice system. Commitment to social or distributive justice in crime control areas can increase tolerance and social understanding of those who commit crime or are criminalized. Some general questions about social justice help to frame ethical views about the social outcomes for those people who will be most affected by criminal justice systems, notably victims, offenders, families, and communities.
- What can be distributed, where, and when to create more socially just relations and just institutions in a society?
- Is a national and global distributive justice viable given the entrenched inequalities created by promarket Western economies and economic globalization?
- What conceptions and strategies of social justice challenge or expand on the notions of social justice in the criminal justice system?
- Do partial or whole conceptions of justice provide frames for assessing the criminal justice system, locating it in a social context and, in particular, providing an ethical basis for such systems in society?
The modern world requires strong philosophical notions of social justice to challenge and counteract the forces of economic globalization and state-backed promarket or neoliberal reforms in society. These reforms, such as privatization strategies, have been detrimental to social justice outcomes across the globe, particularly in terms of poverty and inequality. Social justice philosophies consider the need for global distributive justice that promotes equality, increases fairness across and between different socioeconomic and culturally diverse groups, and reduces violence and harm to the most vulnerable and oppressed populations. Women and children in particular are affected by the inequalities that are intensified by economic globalization and neoliberal reforms.
There are fundamentally different approaches to criminal justice policies and programs inferred by the competing ideas of social justice in modern Western societies. These conceptions cut at the heart of political ideology and practice.
Bibliography:
- Altman, A. and C. H. Wellman. A Liberal Theory of International Justice. Oxford: Oxford University Press, 2009.
- Armstrong, C. Global Distributive Justice. Cambridge: Cambridge University Press, 2012.
- Arrigo, B., ed. Social Justice/Criminal Justice. Belmont, CA: Wadsworth, 1999.
- Barry, B. Why Social Justice Matters. Malden, MA: Polity, 2005.
- Capeheart, L. and D. Milovanovic. Social Justice. New Brunswick, NJ: Rutgers University Press, 2007.
- Fraser, Nancy. Scales of Justice: Reimagining Political Space in a Globalizing World. New York: Columbia University Press, 2008.
- Garcia, V. and P. McManimon. Gendered Justice. Lanham, MD: Rowman & Littlefield, 2011.
- Gilbert, N. and P. Terrell. Dimensions of Social Welfare Policy. Boston: Allyn & Bacon, 2002.
- Lynch, M. J. and P. Stretesky. “Marxism and Social Justice.” In Social Justice/Criminal Justice, B. Arrigo, ed. Belmont, CA: Wadsworth, 1999.
- Miller, D. Principles of Social Justice. Oxford: Oxford University Press, 2001.
- Morash, M. Understanding Gender, Crime and Justice. Thousand Oaks, CA: Sage, 2006. Young, I. M. Responsibility for Justice. Oxford: Oxford University Press, 2011.
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