Colin James’s paper to the Leading Justice Symposium, 29 April 2014 —
At 17 I learned from Plato that justice is not a simple concept. At 38, while learning law piecemeal, I encountered John Rawls’ justice as fairness theory, encapsulated in the difference principle. Law studies taught me the law and justice are not the same: the law must be certain if the law is to rule. But, as Plato argued, justice is essential to a well functioning society and left liberals appropriated that precept with their talk of social justice. Left-liberals now habitually talk of social contract (more in the Rawlsian than Hobbesian or Lockean sense), thereby adding a legal overtone. Ultra-liberals and conservatives talked up law and order, almost equating justice with retribution — the narrow sense of utu — but today’s conservative cabinet talks up rehabilitation and education, which serves fiscal imperatives and fits the investment approach they have imported into social policy.
The thread is social cohesion. A just society — one which the great majority think is just, even if not everything goes their way — is likely to be cohesive and resilient, capable of encompassing diversity, sustaining energy and enterprise and managing shocks. That is, a just society is a rich society in all meanings of that word. Justice is infrastructure, analogous to roads and water, and sensible people invest in and maintain infrastructure in good repair.
Easy said. But not easy done in a new and intense stage of globalisation — hyperglobalisation — of greater interdependency and interconnectedness, including higher levels of people movement which is remixing national populations, including ours, and requiring us to think about justice across as well as within nations. Rapid, deep and disruptive technological change is compounding already deep, socially-constructed inequalities by changing the nature and location of “work”. Germans call this technological step-change the fourth industrial revolution: crowd and cloud design and funding, multi-tasking robots, computer-controlled “factories”, additive manufacturing, crowd and cloud identification of and sales to customers. A made thing is now packed with services. This is not a simple evolutionary extension of 1980s-2000s trends. The 2010s are different in the way electrification and mass production made the 1920s different.
Nobody knows where that will take us by 2025. What we can say is that it will drive big and potentially disruptive political change.
The risk to the just society is that large numbers get left or locked out and choose “occupations” which upset social order. Unmet need is the enemy of justice.
So what is justice? In modern Aotearoa it is rooted in citizenship. Once we were subjects, obedient (or not) to the Queen. Now we are citizens. And to be full citizens we must have the capacity to take a full part in society — as enunciated by the 1972 Royal Commission on Social Policy and reaffirmed in last November’s exceptional Hutchison report, focused on ensuring a good nutritional, emotional and cognitive start for every child to equip it for education and a full life.
The first years of life are the “justice pipeline’s” actual inlet. Justice for a new child is opportunity, in the rich sense of being able to as full a participant in society and its subset, the economy, as genes and disposition will allow. So, in addition to the “justice sector” agencies (justice itself, Crown Law, police, courts, prisons, serious fraud and social development) public servants (and ministers) responsible for health, education, housing and environment — and the budget — have responsibilities.
This is by far the biggest challenge to governments of the next two generations. By comparison, balancing the budget and the current account are a doddle.
The same goes for the outlet end of the pipeline: making what can be made of bad starts and wrecked lives. With some exceptions, criminals are victims. Undoing that can be expensive, slow, fraught, frustrating and complicated: to climb out of some pasts requires huge, persistent willpower and patient, persistent assistance. But if we skimp we condemn ourselves along with the criminals.
The title of this symposium is “leading justice”. New Zealand/Aotearoa is small enough, flexible enough, inventive enough to “lead justice” in a way Plato or Rawls might have understood. We did it in social security and in biculturalism so perhaps we can do it in justice — though it is a big, very big, task and we are small, very small.
While we comfort ourselves we are too small to try that, we could do some practical things: abolish juries; cut the time between charge and trial to where it was in the 1950s; move far more civil disputes from the courts to mediation and arbitration; arrest and reverse the drift from the rule of law to the rule of lawyers. There is a long list to be getting on with while we avert our gaze from justice as citizenship.
Addendum: Justice as citizenship is a conservative issue as much as a liberal-left one. If there is not justice in the broad sense, market capitalism and the liberal order will be at risk. In the twentieth century that risk was averted in our sorts of societies by a left initiative embedded by conservative buy-in. Conservatives recognised, particularly from the 1930s on, that to conserve their society change was necessary.