Human Rights Justice and Injustice: Stories About Society

8/10/2019 Human Rights Justice and Injustice: Stories About Society

1/16

STI E I S l

ETY

elinda Carpenter

Matthew all

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Carpenter, Belinda J

Justice in society/ Belinda Carpenter; Matthew Ball.

Includes index.

978 186287 895 2 pbk)

Justice, Administration

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JUSTICE ND INJUSTICE

STORIES BOUT SOCIETY

1

Introduction

As we noted in the introduction two stories about justice dominate in

any discussion about Australian society. The first emphasises the ideas o

freedom and equality

as

crucial to a just society. In this story Australia

is

characterised

as

a classless society where those who succeed do so on the

basis

o

their own merits. Supported by legislation that advocates equal

opportunity and punishes discrimination this story suggests that members

o Australian society are free to choose the lifestyle they desire and are

only hampered by a lack o natural abilities and a poor work ethic. The

second story offers a contrasting perspective. t highlights the continuing

oppression and inequality that characterises Australia and undercuts access

to justice for many emphasises the constraints placed on members o our

society that prevent them from achieving their desired lifestyle and points

to the patterns o success and failure in areas

as

diverse

as

political participa-

tion criminal victimisation and educational achievement.

While these stories appear diametrically opposed they do

in

fact share

three assumptions: that justice and injustice are easily identifiable; that all

people simply by virtue o being human have an inherent moral worth that

must be respected; and that treating all people equally is the basis for a just

society. In this book we want to explore the similarities and differences

between these two dominant stories o ustice.

t

seems to us that there are

elements in both o them that are useful for helping us understand this very

complex issue but we would also like to suggest some ways

o

thinking

outs i e

o

hese stories as well. In order to do so we will be utilising the

work o a range o prominent thinkers across the disciplines o political

philosophy sociology histmy anthropology and psychology to challenge


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2

JUSTI E IN SO IETY

some taken-for-granted ideas about justice and injustice in society, and to

offer some new directions for thought and debate.

2.

ustice and injustice are easily identifiable

The first narrative we want to explore in these two stories about justice is

the idea that justice and injustice are easily identifiable, and that we have

a shared agreement about what justice actually entails. Any dictionary will

tell you that justice means faitness , and includes ideas about deserved

treatment, reasonable conduct and impartial authority. Justice as fairness

encompasses a number of assumptions that are shared by both stories. First,

fairness requires rules that are open and honest; second, fairness requires all

people to be treated equally; and, finally, fairness requires that unreasonable

behaviour will be punished.

t

is expected that

if

followed without prejudice

or bias, a fair process such

as

this will lead to just behaviour, just institutions

and a

just

society.

So, for example, in the criminal justice system, it is argued that the

courts allocate penalties to those found guilty of crimes in an appropriate

and consistent manner such that the punishment should fit the crime. There

is a strong expectation that punishment will be impartial, which means that

personal characteristics such as wealth or status should have no bearing

on the finding or on the penalty imposed. Do the crime, do the time is

the mantra

of

a fair criminal justice system, and variations in sentencing

between people charged with the same offence raise suspicions of injustice.

For the most part, then, the criminal justice system appears, at least at

first glance, to be operating within fair and consistent principles and lends

suppmt to the first story that justice is about freedom and equality. If you

choose not to follow the rules you will be punished, but you will only be

punished in the same way as everyone else who breaks that tule.

However, there is another way of thinking about the criminal justice

system that challenges the ideals of fair processes and principles. This

is

a narrative about the over-representation

of

certain groups in the criminal

justice system and the unjust impact ofcriminal justice processes on certain

groups. In all modern Western societies, including Australia, the prison

population most often comprises the poorest, most disadvantaged and

oppressed members

of

that society. In Australia, this means that Indigenous

Australians are 3 times more likely to end up in prison than non-Indigenous

Australians (HREOC 2008). Moreover, in such a system, there are large

differences between crimes that are serious in tem s of the harm they cause

society and crimes that are taken seriously by the criminal justice system.

Consider tax evasion and welfare fraud, for example. Both

of

these activities

can be defined as theft from the state, and yet the laws regulating them are

enforced in different ways, and carry differing penalties. These differences


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JUSTICE AND

INJUSTICE

STORIES ABOUT

SOCIETY

3

illustrate the inconsistent ways that the criminal justice system responds

to identical crimes committed by differently advantaged groups. As such,

this narrative on the criminal justice system appears to support the second

story

of justice

that it is unachieved, and that oppression and inequality

persists - at least for certain groups in the community.

Additionally, when we consider the justice ofour society, the emphasis

is

on fair rules, equal treatment and impartial authority. For example, equal

opportunity legislation is now in place in all Western liberal democracies to

guard against discriminatory employment practices.

We

no longer advertise

certain positions for men or women, and we cannot require a person

of

a

certain age, ethnicity or religion to perform a particular job. This does not

mean,

of

course, that we will all earn the same amount

of

money. A just

society will still contain rich and poor. Rather, what is important is that those

who do earn more have gained that high status position

in

a fair race . We

hold firm to this idea ofa fair race and argue vehemently that those who are

the most successful deserve the highest rewards because they have earned

it through fair processes and hard work. Once again, this narrative supports

the first story that freedom of choice to work hard and use one s natural

abilities will result in high status positions - a just reward for sacrifice and

delayed gratification.

Yet, much like there is an alternative narrative about the criminal

justice system, there is another way of looking at justice in our society.

This is premised on the idea that there are enduring constraints

on

people s

freedom to act, even though people may not be aware of them. What this

means is that while we all experience our lives as individuals and feel that

what happens to us is the result

of

our abilities, choices and good or bad luck,

a great deal

of

our life is shaped by social patterns

of

behaviour that operate

at a collective rather than individual level. People may seek the same goals,

but not all reach them because the amount of available prizes is limited. In

this case we compete with each other and the outcome may be only

p rti lly

dependent on our individual efforts.

We

might seek a position in a large

company only to find that there are 50 applicants, all

of

whom have the

required qualifications. Whether we are successful in gaining that position

then becomes dependent upon the judgment

of

others. This means that every

individual is born into a society of institutional practices that structure their

potential for action. Depending on the family into which you are born, for

example, you will learn a range ofpractices and skills that give you (more or

less) capacity to influence the actions of others and achieve your own ends.

So, this story argues that some people in society are more likely to achieve

success than others based on the family they are born into and, if that is the

case, then we do not, at present, live in a just society.

The last area that needs some attention in our quest to identify what

constitutes justice and injustice in Australian society relates to the role and

purpose ofwelfare in a just society. t has been argued that one of the marks


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4 JUSTI E IN

SO IETY

of a just society is how it treats its most disadvantaged. In Australia, this

was recognised through the establishment

of

the welfare arm

of

the govern

ment after the Second World War t is also the basis for differing levels

of taxation and means-tested support for goods and services as diverse as

pharmaceuticals, child care and public transport. Since this seems to be

suggesting that a just society needs to treat some people differently to others

in order to be fair, it is important for us to consider how the two stories of

justice engage with this idea.

With an emphasis on freedom and equality, the first story does not

accept that offering state-supported assistance is a necessary prerequisite

to achieve a just society. In a just society, it is appropriate that only a few

receive welfare support, and this generally includes the disabled and the

elderly. The justification for the former is that they may not be able to

compete in the fair race for positions, while the elderly might have a claim

based on their contributions to society through taxation during their working

life. However, while these few groups 1night be justified in receiving extra

support, ot others, especially those on unemployment benefits or single

parent pensions, the judgment is harsh and uncompromising. Welfare

cheats and dole bludgers figure prominently in talk-back radio and current

affairs television, since they challenge the premise

of

a fair society in this

stmy of equality and freedom. For, if such people have been offered the

same opportunities as everyone else, they only have themselves to blame

for their failure and should not be able to claim public money to support

themselves.

In contrast, and ifwe continue with the idea that not everyone has the

same opportunities to achieve, we could argue that welfare assistance is

crucial for the most disadvantaged in our society. In this second story, our

life chances - our capacity to access the good things in life and avoid the

bad are, to a large extent, beyond our control. Moreover, this inequality is

patterned over time such that our economic situation is unlikely to change

between generations. The lack of social mobility in Australia means that the

probability

of

success and failure in life

is

the result

of

historical and social

relations as much as (or even

mor

than) individual actions. For example,

your economic position influences the amount of education your children

are likely to receive. t also shapes the standards

of

medical care enjoyed by

yourself and your family, and therefore your life expectancy - life chances

in the literal sense of the term. The higher classes

in

our society are better

fed, better housed, better educated and live longer than their less fortunate

fellow citizens. In this way ofthinking about justice inAustralia, taxation is

important in redistributing wealth, and welfare support is crucial for those

who lack the life chances to change their station in life.

So we seem to have two different and yet similar stories about justice.

In emphasising equality and freedom as the prerequisite for a just society,

the first story appears to have ignored the social, economic and cultural


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JUSTICE

AND

INJUSTICE: STORIES ABOUT

SOCIETY

5

constraints on people's freedom. How useful is it to have the freedom to go

to university

if

your family cannot afford to send you there? Similarly, by

emphasising the constraints on freedom to change your station in life, the

second story has overlooked, for example, the greater diversity

of

people

currently accessing tertiary education.

However, these two stories do have some ideas in common. They

tend to adopt shared understandings of justice and assume that there is a

universally-applicable understanding ofwhat is just and unjust that we can

use to inform the boundaries of our social interactions. Justice is assumed

to have a concrete definition, and it is to be found somewhere between

total freedom and total constraint. But the disciplines from which we have

accessed this information are primarily political philosophy and sociology.

These disciplines are historically and culturally partial, since both are prod

ucts

of

European Enlightenment thought that came into existence from the

18th century. This means that there is nothing inherent in these two stories

of ustice that makes one necessarily better than the other.

Furthermore, many different political systems justify their govern

ment ofa nation through claims to justice. If the notion

of

ustice can be used

to

support

as well as

oppose

different kinds of social arrangements, then

justice itself has no inherent qualities. t becomes, rather, a tool deployed

as

part of the knowledge and power relations that shape social interactions

and institutions. This does not mean that justice is a meaningless concept.

t would be a rather pointless book if this were the case Rather we would

contend that if a claim to justice can be mobilised to support divergent

political arrangements (as it

is

currently able to in Australia, England, the

United States and any other country you can think of), the inherent truth

of justice that sees our modern, liberal, democratic conception

as

better,

more insightful, more informed and more just is open to, if not outright

challenge, then certainly some further exploration. One important aspect

of

these shared understandings

of

justice

is

the idea of the inherent moral

worth of each member of society. This concept is both the impetus for a

just society, and its organising feature.

t is

to this idea that we now turn.

3

All people by virtue

of

being human have

an

inherent moral worth

The importance of a just society, where all members are treated with dignity

and respect, is based on the idea that all human beings have value and

importance and are therefore worthy of our concern. In these ideas about

justice and injustice, it is the concept of human rights that comes to the

fore, since it is based on the assumption that all humans, simply by virtue

of their being human, have an inherent value and worth. The preamble to

the

Universal Declaration o Human Rights

which was adopted by the


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JUSTI E

IN

SO IETY

United Nations General Assembly on

1

December 1948, begins with the

following: Whereas recognition

of

he inherent dignity and of the equal and

inalienable rights

of

all members of the human family is the foundation

of

freedom, justice and peace in the world ... . Such a shared understanding

of

the moral worth of all human beings places limits on what it

is

to treat

someone as a human being. Such limits might include protection against

blatant violence and a commitment to satisfying a person s most basic needs.

In our first story of justice, the inherent moral worth of a person is

based on two related

narratives

that humans are both rational and moral in

their nature. The idea of rationality is based on a metaphysical view about

the nature of humanity, which suggests that what distinguishes hwnans

from other beings in the universe is their

autonomy

that is, their capacity

to make decisions and change things in the world in accordance with their

will. What this means is that the most fundamental feature of all human

beings is that they possess the ability to choose between one course

of

action

and another, and this stems from the fact that human beings have free will.

The second idea, that we are moral

in

nature, takes the idea of free will one

step further and maintains that the most fundamental feature

of

all human

beings is that they possess the ability to choose between good and evil, a

genuine ability to choose to do what is right. We owe many of these ideas

to Immanuel Kant ( 1724-1804) and they are inherent in the workings of

our criminal justice system. Generally speaking, we understand criminal

behaviour to be the result

of

a rational decision to break the law.

We

also

assume (rightly) that the vast majority

of

us will choose to act within the

moral guidelines of our society by following its rules. Thus, those who

are found guilty of a criminal act deserve to be punished. Our criminal

justice system assumes that human beings have free will and that they have

chosen, in spite

of

their inherent moral nature, to break the law. Moreover,

as rational and moral people themselves, while they may not act within the

law, they should nonetheless still be respected as persons through a fair trial,

appropriate legal representation and detenninate sentencing.

The second story, however, argues that we learn the moral guidelines

of

our society through our interactionwit society. This is called the process

of socialisation. When individuals, through socialisation, accept the rules

and expectations of their society, we say they have internalised the social

order of

that society. Returning to the idea

of

criminal behaviour, we can

argue, following this second story

of

the creation of an individual through

their interactions with society, that the choice to commit a criminal act may

not be as simple as a fiee and rational choice. For example, if, in our society,

we teach young men that the mark of a man is to demonstrate physical

prowess through fighting, and, following this, a young man accidentally

kills his opponent during a fight, is that a criminal act? Outside a nightclub

it most likely is, but in a boxing ring, it most likely is not. So the response

to an act is tempered by society depending on the context in which it occurs.


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JUSTICE AND INJUSTICE STORIES ABOUT SOCIETY

17

Moreover, we also know that risk taking

is

a large part of the socialisation

attached to masculinity, but risk taking is also a large part of criminal behav

iour t certainly is one explanation for the over-representation ofyoung men

in the criminal justice system, as compared to young women. Thus, in this

story, our inherent moral worth may be the basis for our humanity, but it

is

not the only reason that we act the way we do.

In society more generally, how do these contrasting ideas about free

will and social order help us think about justice and injustice? The ideal

of

democracy gives us some insight. Democracy literally means rule by the

people and while it has its origins in ancient Greece, the modern form of

democracy, popularised from the 18th century and the basis ofAustralian

and most other forms

of

democratic government,

is

liberal democracy.

Underpinned by the two narratives discussed above that humans are moral

and rational beings but also that humans have an inherent desire for social

order

liberal

democracies are said to be founded on the idea of the social

contract , where human freedom

is

traded for social security. Democracy is

thus a compromise between these two organising features of freedom and

constraint, free will and social order.

In the first story, the rights associated with your inherent moral worth

are most clearly realised through your freedom to pursue those goals.

Democracy

is

thus first and foremost about freedom, because to let others

determine goals for you without your participation

is

tantamount to becom

ing a slave. In this instance, freedom is bargained for the benefits of social

order, but there are strict limits placed on the role of the state in the affairs

of

he individual. This approach in political philosophy

is

termed liberalism.

For John Stuart Mill (1806-1873), a prominent liberal philosopher, the only

valid interference into the personal liberty

of

he individual by the state

is

to

ensure that each person contributes a share to the running of society through

taxation. This was exemplified in the mantra of the American Revolution

(1775-1783)- no taxation without representation - and can also be clearly

seen in the preamble to the

merican Declaration o ndependence

in 1776:

We hold these truths to

be

self-evident, that all men are created equal, that

they are endowed by their Creator with certain unalienable Rights, that

among these are Life, Liberty and the pursuit

of

Happiness . In modem

democratic nations like the United States and Australia, a pre-eminent status

is

placed on freedom, based on the belief that

an

individual will make use

of the democratic process to access their inalienable right to pursue their

goals of happiness and wellbeing.

However, in the second story, there is an emphasis on the other

element

of

the social contract in a democratic society

protection

and

security. In contrast to the first story, where equality is gained through

freedom, here it is argued that freedom can only be gained through equal

ity. Such debates certainly have currency in Australian society. Take the

example of freedom to engage in the political process, for example. This


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8 JUSTICE

IN

SOCIETY

is an important political right in modern democracies but such political

participation is dominated by men. Do we assume as a consequence that

only male members of society choose to pursue such a goal or are there

barriers to political participation for women? In this story freedom o choice

does not guarantee freedom

t

ct

on those choices. Most commonly we

think

of

being limited by the amount

of

money at our disposal but there are

also symbolic resources. We may be refused entry to a club or etnployment

because of the manner in which our qualities are judged for example on

the grounds of race sex ethnicity or age. Of course this occurs

in

more

covert ways than overt discrimination which is illegal. For example if

part

of the selection criteria for a position is the ability to carry a heavy weight a

long distance this might mean that older candidates or many women are

excluded as a consequence.

If

a certain club has a dress standard

of

formal

wear that may mean that people

of

a certain class who cannot afford the

appropriate attire will not be allowed entry. Alternatively access to a club

may depend on past achievements - acquired skills qualifications length

of service or the manner in which we have been brought up to speak. In this

way our freedom to act in the present irrespective of the legislation and

policies in place to protect our equal opportunity is informed by our past

circumstances and accumulated experiences.

Like the discussion

of

justice above these two stories seem to be

offering diametrically opposed understandings

of

human actors. In the first

story the inherent moral worth ofhmnans supports a political process that

prioritises freedom while in the second story hill ans need equal access

to all rights in order to pursue happiness. Thus the themes of freedom and

constraint so crucial to organising the parameters of justice in Australian

society

as

we saw above also feature in the ways in which we understand

the relation between elements

of

ourselves that are purported to be inherent

and their role in the creation of a just society.

Nevertheless and despite what appear to be diametrically opposed

ideas about the relations between the individual and society freedom and

constraint free will and social order both stories agree that the protection

of human rights is paramount to a just society. They are able to agree on

this because both stories share an assumption about human

nature-

that it is

inherently good and expresses an inherent moral worth. Such an approach

is evinced when we assume that those who commit terrible crimes are some

how abnormal.

t

is also in this understanding of the self that suggestions

for producing a just society are based. Designs for arranging social relations

and shaping societies in a just way invariably utilise an understanding

of

the inherent worth of human beings and rely on the assUlllption that they

are inherently good.

However this very idea- that we

have

a

self

which forms the

reference point for our experiences - is historical and cultural rather than

inevitable despite what these stories might suggest. t is based on a specific


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JUSTICE AND

INJUSTICE: STORIES ABOUT

SOCIETY

9

way of understanding that suggests a human essence - an apparently

unchanging and natural or inevitable self that

is

inherent within us. t also

encourages us to believe that we have a deep or true self that can emerge.

Think about practices such as keeping a journal, dieting, maintaining physi

cal health, abstinence or self-reflection - each of these are practices that

assume an inner self that is to be drawn out, denied, liberated, cared for or

expressed. This assumption about the

self

is dominant in our society and

fuels a market in self-help books, is the basis for scientific understandings

of the self

in

psychology, and

is

the focus point of liberation politics and,

indeed, liberal philosophy. Importantly, as we will explore in the next two

chapters, this understanding that there is a natural self that is inherent within

us is a particularly Western construction and has not existed even within

Western cultures throughout all periods of

history.

This understanding

of

an inherent self

is

also the basis upon which

many approaches to justice are grounded. And what could possibly be

wrong with using a universal understanding of humanity to support calls

for justice? t turns out quite a lot, in fact. Take the exatnple

of

human

rights

again, the clearest expression of these ideals. The idea ofuniversal

human rights has been under siege since the incorporation

of

such rights into

international human rights documents and institutions, so much

so

that it

took

28

years to ratify the initial declaration of hese rights with two binding

human rights conventions. These conventions have also been criticised for

the priority they give civil and political rights over economic, social and

cultural rights. Many developing nations are annually criticised for their

citizens lack

of

political participation. However, these same nations counter

by arguing that a desire for political participation assumes full bellies, and

access to medical

care

that basic social and economic rights need to be

realised prior to citizens gaining an interest in the parliamentary process.

That said, revolutions have been fought and won by arguing that all human

beings have equal value and impmiance and are therefore equally wmihy

of concern and

respect

recall the cry of the French Revolution: liberty,

equality, and fraternity .

t

is with the idea

of

equality that we must now

engage.

4

reating people with equality

is

the basis

for

a

just society

Inherent in discussions of ustice is the idea

of

equality. Generally, as noted

in the previous discussion on the inherent moral worth ofhumans, we start

from the assumption that all people are equal. But what does it mean to

state that all people are equal?

t

certainly does not mean that we are all

identical. Men and women are not identical but it does not then follow that

one is superior to the other. So we generally assume that equality occurs


12/16

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JUSTI E IN SO IETY

despite our differences. People are equal even if not identical. Following

on from this, we then assume that the measure of a just society is to treat

everyone equally and we make the initial assumption that this means treat

ing everyone the same. The criminal justice system is one example

of

his in

action, as we have seen. However, as our discussion

of

welfare support and

grades

of

taxation showed, a just society can also treat people differently.

So,

is

justice about treating people the same or treating them differently?

With regard to the first story, which emphasises freedom and rights,

the answer would be that all people have equal moral worth and should be

treated the same, unless there are relevant reasons not to do so. Relevant

reasons might include taking a disability into account

in

the time required to

complete an exam, or taking away your right to vote if you are imprisoned

for a serious crime. In both

of

these cases, there is a relevant reason not to

treat people the same, when they might otherwise expect to be treated as

such. In this first story, equality is based on the principle

of

consistency.

The desire is to achieve a fair starting point for people - a level playing

field so that some people are not disadvantaged in terms

of

employment,

access to housing, or educational achievement. n this story, inequality and

injustice only occur through discrimination at an individual or group level.

By making laws and policies which make such discrimination illegal -

through equal opportunity legislation for example it is argued that equality

should prevail and that your social position will be gained by individual

achievement rather than by birth. t is accepted that individual positions are

unequally rewarded, and what is crucial is fair access and opportunity. This

is because, although Australia does not claim to be equal it does claim to

offer equal opportunity to all in the competition for unequal positions. In

this story, society is unequal, but inequality is fair because the processes

that have produced it have been just.

The second story, which emphasises the constraints on free will

through social order, is critical of the continued existence of inequality

in Australian society and argues that this demonstrates that Australia is a

fundamentally unjust society. This

is

not, however, to argue that inequality

p r

se is the issue. In a fair competition there will always be winners and

losers. Rather, this second story is concerned with the patterned nature

of

social inequality, and argues that such patterns point to the fact that the race

is not fair that there is not a level playing field in society. By identifying

the tangible differences in life chances between different groups of people,

this story argues that only certain people benefit from the social, political

and economic resources available within nations and communities.

We

have

already noted this in relation to political participation, which is patterned

in terms

of

gender, and over-representation in the criminal justice system,

which is patterned in tenns of race. Rather than placing their faith in equal

opportunity legislation to address these inequalities, for example, adherents

of his second story emphasise the importance of he redistribution

of

valued


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JUSTICE AND INJUSTICE STORIES

ABOUT

SOCIETY

2

social goods in order to remove inequality and create a fair society. This

does not mean that all have identical amounts

of

money and property, but

rather that economic inequality should be kept within reasonable limits

_ that the gap between the richest and the poorest should not be too great.

Moreover, economic equality

is

not

an

end in itself; rather, it is a means to

other valued goals like protecting the dignity

of

people. This is based on the

recognition that economic inequality can lead to the humiliation, exploita

tion and oppression of those at and near the bottom. t is also the case that

economic resources are not infinite.

If

those at the top accumulate too many

such resources, there

is

the real possibility that there is not enough left for

those at the bottom. So, this story argues that treating people differently is

crucial for a just society.

In real terms, how is this equality to be achieved in society, and how

is

it to be protected? Most often this is the responsibility

of

nation-states.

The legal rights given to you

as

a citizen enact your human rights, which,

as

we have discussed, are based on the idea that all humans are equal and

should be treated

as

such (discussed in Chapter 12). This occurs, for exam

ple, through a Bill

of

Rights in the United States and France, or through

common law and legislative acts in Australia. Legal rights are specific to

each country and,

as

a consequence, are historically, socially and culturally

specific. This means that individuals in one society might have rights that

people in other societies do not have.

In the first story, the implementation of universal citizenship for all

those born in a country gives access to the plethora of rights available, and

therefore to justice. In Australia, the formal rights of citizenship, protected

by the constitution and the law, are civil and political rights. Civil rights

are those

of

individual freedom and the liberty

of

the person, and include:

freedom of speech, thought and faith; the right to justice; the right to

own property; and the right to choose one s work through entering valid

contracts. Political rights involve the right to participate in the exercise of

political power as an elector, parliamentary member or local councillor.

In

the first story, citizenship guarantees these formal rights and presumes

equality in these areas as a consequence because, while historically the

legal rights associated with citizenship have been restricted to advantaged

white men, these have been gradually expanded over the 20th century to

provide women, people of colour and the poor with full access to those

rights. However, in the evolution

of

citizenship, it has always been argued

that equality of citizenship rights does not extend to the economic sphere.

Indeed, in the first story, a precious liberty

is

the right to become economi

cally unequal, to accumulate property. Thus, citizenship, in the first story, is

the right to be both equal and

unequal

a political equivalence

in

citizenship

and an economic difference in property acquisition.

In the second story, the assumption that the formal rights

of

citizen

ship ensure equality for all is questioned. What is argued instead is that


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JUSTI E IN

SO IETY

citizenship rights simply provide people with capacities or opportunities

for action. Civil rights may provide a capacity for you to acquire property,

but not the right to possess it. Moreover, simply having equal opportunities

to acquire property has little impact on its distribution, as research on the

growing inequality in Australia is able to demonstrate, and which we will

discuss in more detail in Chapter 4 In the second story, social, economic

and cultural rights are considered far more important to equality and justice

than civil and political rights. The establishment

of

the welfare arm

of

the

Australian government after the Second World War did give a modicum of

support to this idea that social rights are an important element

of

citizenship,

and that they are crucial to any society that is attempting to be socially just.

Health, education and social security payments are included in the third

and most recent element of citizenship, but they are not included as formal

rights. They also come with negative value judgments about those who

need to access them, and they are constantly victim to economic cutbacks in

both people and material resources. The power

of

the first

story

that social

rights are more about individual freedom to pursue one's goals seems to

overwhelm the claims of the second story - that social rights are crucial to

a just society - and this may be why social rights are understood more in

terms

of

charity than justice.

So in these two stories of equality and justice, we find, once again,

what appear to be diametrically opposing views on the role of equality in

society, what it means, and how it is to be protected. While the first story

articulates an idea

of

justice that incorporates the protection of rights and

opportunities to pursue the unequal acquisition of economic (and other)

goods, the second story argues that rights associated with freedom and

opportunity are not enough

of

a foundation to ensure equality for all citizens.

The first story maintains that treating people the same is the fairest way to an

equal society, while the second offers the patterns of inequality in Australia

as an indicator of a lack of fair process in the race to attain valued goods

and services. As a consequence, the second story advocates distribution of

wealth via social rights as the only way to achieve a just society.

However, what is not questioned here is the ultimate go l that is to be

achieved, which is a

just

society that gives expression to the idea that each

and every human being is of equal and inherent moral worth. What these

two stories are debating is simply the method by which equality can best be

achieved, and, more specifically, the extent to which people can be treated

differently in pursuit of equality (without unde1mining that very goal ).

These stories are both so heavily invested in the notion of equality that it

has become taken for granted as a point of reference for any discussion of

justice. For example,

if

you were to ask anyone what justice meant to them,

in some form or another they would mention equality. If you were to ask

them to elaborate by explaining exactly what equality means and how it

can be achieved, though, you would get a range of responses - some would


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JUSTICE AND INJUSTICE: STORIES ABOUT SOCIETY

3

say it means treating people the same, while others would say that unequals

must be treated unequally.

The irony is that regardless

of

whichever method

is

used to achieve

equality, and regardless of which story is followed here, in both cases we

will still produce a fair society (remember our earlier point about justice

having no inherent qualities).

Of

course, this does not mean that following

one story over another will avoid producing winners and losers. The very

existence of the 'other story' suggests that discussions about how best to

achieve equality will continue. But

an

ongoing debate about equality does

not mean that

o

progress is made to achieve justice. What this highlights

for our purposes are a few final points that we would like to make about

justice

that justice

is

always incomplete, and attempts to alleviate injustice

will always produce new claims for justice.

Equality can never

be

fully realised for either story, since arrange

ments ofpeople, social relations, other actors and material resources act as

barriers and networks of resistance to its complete achievement. Any claim

of

inequality - and ultimately injustice - from each story merely points to

the limitations and failures

of

other stories that have played a dominant role

in ordering our society

in specific ways. At the same time, these limitations

provide the impetus for new possibilities of social ordering - that is, new

attempts to achieve justice. The answer that is suggested to these limitations

or failures, ironically enough, always appears to

be

more equality, only

approached in a different way. These ongoing antagonisms and debates

cannot be avoided.

5

onclusion

In the 21st century, it is common sense to note that liberal democracies like

Australia prioritise the idea

of

ustice in their goals for society, and that the

importance of a fair society, where all are treated equally, is the cornerstone

of

govenunent policies. Internationally, the United Nations also prioritises

justice in human rights conventions, which articulate ideas about the inher

ent moral worth

of

each person, and historically, revolutions in America and

France have been waged over justice through calls for equality and liberty.

At the same time, injustice is still a feature ofmodern society, and there is

a strong argument from some corners that inequality may be appropriate

when the processes that have achieved it are fair.

What these stories express is an assumption that the path to a fair and

just society constitutes what might be a linear progression from injustice

to justice, uncivilised practices to civilisation, and unenlightened ways of

treating others to enlightened ones. When we think

of

he great histories that

have been written about our society, they most often highlight momentous

changes, and are written as a movement toward a perfectible future . The


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4

JUSTI E IN SO IETY

history

o

Western civilisation focuses on the triumph

o

science over nature,

and the role

o

humans

in

achieving just political and social institutions- the

revolutions in France and America already discussed are perfect examples.

They also suggest that inherent aspects o human beings drive them inexo

rably towards justice. t is within this idea that we are moving towards a

perfectible future that we couch our ideas

o

ustice, and it is always towards

the more civilised , enlightened and just end o he scale that we position

ourselves.

As this chapter has suggested, though, despite the hold o these ideas

about justice and what constitutes a just society on our imaginations, there

is

a variety

o

complex questions and assumptions that must be more fully

comprehended i we are to consider justice in any meaningful way. This

chapter has unpacked three o these assumptions: that justice and injustice

are easily identifiable; that all people, simply by virtue

o

being human,

have an inherent moral worth that must be respected; and that treating all

people equally is the basis for a just society. We have suggested that while

justice may be seen as an important goal, we cannot pin down what it means

because the term can be, and has been, used to refer to diverse political and

social ambitions. We have argued that, despite the idea that just societies

must reflect an inherent human nature and allow this to flourish (think

o

political campaigns for justice centred on expressing and liberating one s

sexuality in this vein), what this inherent human nature consists o is

historically and culturally constructed, and thus is an unstable concept

on

which to base calls for justice. Finally, we have pointed out that no matter

the method utilised to achieve equality and give expression to what is

understood to be a just society, these attempts are always incomplete, and

in fact become the impetus for ongoing claims for justice.

Justice, it can then be argued, is an incomplete and continually failing

enterprise that cannot be grounded in a notion o a human essence. This

does not mean, however, that we should ignore justice or fail to use it

as a motivation for our actions. Following Jacques Denida (1930-2004),

we position justice as an ideal, an inspiration that is supremely important

and worth striving for constantly and tirelessly, but which will never be

finally achieved (Denida 1990). As you will no doubt notice, this is quite a

different story about justice than those assumed within the two stories that

are dominant in discussions about justice in Australia. These two stories

act with great certainty about what justice

is

and great determination about

how to achieve it.

n

the next chapter, we will explore more fully why we

would argue that the assumptions underpinning these dominant stories about

justice are troubling, and continue to paint the alten1ative picture o ustice

begun here.

Documents

Human Rights Justice and Injustice: Stories About Society