The ever-changing notion of Justice

As Dr Silveira of the University of Cambridge has said in one of his papers, Justice is a moral concept that is very elusive and bears no universal definition, despite the agreed notion that everyone should be given what they deserved. The meaning of justice changes according to differing cultures, circumstances and values. So how has the idea of justice changed over time? Inspired by an online article about the topic, I provide a brief overview of some of the most famous conceptions of the notion of ‘justice’ below.

Classical justice as propounded by Plato, is a ‘human virtue’ which would entail that the individual has to balance numerous parts of his soul namely; reason, desire and spirit. Everyone would deal in a fair way in society and will fulfil their duty in   right way and place. This would eventually mean prioritising what society needed and not what the individual wanted- this concept of justice eventually carries notions of a totalitarian regime. While Aristotle would even claim, in Politics, that some people need to be treated in a different way by the law than others, for the greater good, as they are “natural slaves”.

Medieval justice was most famously advocated by St Thomas Aquinas (especially in Catholicism) whose theory is that justice is when one person gives the other only what the latter is due, despite this not being equal. Moral law plays a great part in his idea of justice. He was also a firm believer that there is a just price for everything.

Modern justice on the other hand, is rooted from the period of the Enlightenment, pushed under the spotlight by Kant. This idea of justice is based on how we are all equal before the law and this concept of egalitarianism is expanding more and more to all categories of human beings- from men, to women and children. Marx and Smith have also pushed forward a form of distributive justice that gives the general idea that goods should be distributed according to the moral, rights-based values or in the case of Smith, according to the market.

However, this is just a few examples of how the notion of justice has changed over time. There are plenty more theories and as aforementioned, the idea of justice still differs according to different cultures and circumstances.


Foucault’s Biopolitics and State Racism

The body… is caught up in a system of constraints and privations, obligations and prohibitions
– Michel Foucault, Discipline and punish

I have recently read an article online which connects Foucault’s concept of biopolitics to that of state racism- the piece was so fascinating that I have decided to explore the concept of biopower a little bit more in this brief article. Biopolitics can briefly be described as being the politics of governmentality of life, through the human body. The concept mainly encompasses all the strategies, mechanisms or ‘dispositifs’ as Foucault would say, that govern human life through the ‘technologies of control’, which are numerous forms of authority on knowledge and power. To quote what Foucault said in The Will to Knowledge: The History of Sexuality, these technologies of control exist “to ensure, sustain, and multiply life, to put this life in order”.

Biopolitics is hence, about the human body being subjugated to the technologies of control disseminated through the numerous branches of the social body such as healthcare or punishment (and many more) so that, at the end of the day, the body is functioning according to the norms. Hence, the body becomes ‘normal’. Foucault explains that the concept of biopower also means that the historical power that the sovereign had over society, has thus been split up and extended to these technologies of control. Insomuch that when, for example, an individual is imprisoned, it is no longer to protect the sovereign alone, the argument used to justify the imprisonment is that society as a whole needs to be protected against the offender.

As articulated by many scholars and critical thinkers in the articles regarding Foucault’s work, it is this shift in the dissemination of power, that is, the protection of society instead of the Sovereign alone, that has given rise to state racism. Foucault holds that the post powerful race is the one which is able to define the norm-what is good and what is bad. So that biopolitics entail that there is constant war between this powerful race and the individuals that go against its norms. In his lecture series titled Society Must be Defended, he says

“a racism that society will direct against itself, against its own elements and its own products […] the internal racism of permanent purification, and it will become one of the basic dimensions of social normalisation”

Can this be related to the numerous modern forms of institutional racism that many people face nowadays? Foucault was most certainly right with this theory of biopolitics and state racism, seeing how the income inequalities, the unfairness in the criminal justice systems of many countries (racism by police officers for example) and all the disparities in education, healthcare and fairness in general, rage on across the world.


What can the Humanities do for Law?

When I was talking with my fellow students about our choice of modules for the next term a few days ago, we also reviewed about the previous term and whether we liked our modules.

I was far and wide the only one who did not follow the trend of choosing “remunerative” subjects, such as Commercial Law or International Relations. When I told them that I had chosen Law and the Humanities in order to view Law from a very different angle, their reaction was quite sceptical: of what use are the Humanities? How should they help us in our future career as a lawyer? And what are they actually?

My colleagues might be right in the assumption Humanities being seen as a subject, which is constantly being smiled at when it comes to its practical benefit or discussions about whether to include it in legal education, at least in my home country. But in fact, the Humanities are able to help us as lawyers in our way of understanding our profession and the various factors shaping it. Law is subject to constant change and is deeply interconnected with history, philosophy, politics, and language, just to name a few other meaningful disciplines than “pure” law itself, which impact the nature of our daily work. This does not mean one has to know everything about the Corpus Juris Civilis in order to be a good lawyer. Nor does it mean one has to read Kant`s Metaphysics of morals as a necessary requirement in order to be considered as a well-read lawyer. But it can lead to worthwhile knowledge about the very nature of law, where it comes from and why it might be the way it is.

It is not about finding solutions to specific legal issues, but approaching law from a Humanities perspective broads one`s horizon and raises awareness of all the factors, which create our legal systems. This, in turn, enables us to increase our level of empathy and the ability to question legal systems and norms as well as to develop convincing arguments for or against particular legal issues. Law is about humans and it would be fatal, if lawyers only look at legal norms and how to enforce them like machines, without taking the “bigger picture” into account. Although lawyers need to make a decision at the end, it is also crucial to at least reflect about the law as a complex system, with its origins in history, philosophy, and religion in order to act in a considerate and deliberate way.

And this ability, in turn, is essential for being a good lawyer.


Revisiting Foucault`s discipline and punish: is the idea of rehabilitation doomed to failure?

After reading Foucault’s discipline and punish as part of the discussion about how law can be related to the human body, I got an insight in our modern penal system and the way we punish people, and why we do this the way we do, from a different perspective. Foucault’s main points, which have been argued throughout his book are well-known: from the 18th century on, one can notice a shift in the way of punishing wrongdoers. Cruel, public executions, celebrated as a public events, yielded to prisons, more precisely to the idea of locking perpetrators up in order to change their mind and cure their “soul”. The new aim was to reform them to law-abiding citizens and there was a growing interest in analysing their intellectual world, with the result of shifting the focus from the crime to the criminal. This is all well-known and Foucault embeds this development in a deep analysis of punishment being a complex social and political phenomenon, which is characterized by various dynamics, such as power, knowledge and discipline. But the longer I thought about his ideas and his emphasis on this new aim of punishment, namely to turn the offender into a “better” person, the more sceptical I became about it. This purpose, which is nowadays called rehabilitation or, in some jurisdictions, resocialization, turns out not to be realistic. I started to think about why it might not work in practice. There are many statistics about the number of inmates reoffending once they have served their sentence, which made me seeing prisons, as the common type of punishment, in an even more critical way: I am sure that the high number of recidivism (the statistics reveal numbers from 40 to 60 percent) has many different reasons, which depend on the particular perpetrator, offence and jurisdiction.

But in my opinion rehabilitation itself is doomed to failure, or to put it in other words cannot work, due to the following reasons: the way our modern penal system operates, and Foucault describes this quite to the point when he illustrates the daily routine in a French prison at the beginning of his first chapter, is everything but self-determined. Not only does rehabilitation mean to “reform” the offender, it also aims at preparing him for a life in freedom, a life without criminal offences and criminal environment. But how should inmates ever be self-determined again, if they are deprived of their freedom in nearly every aspect of their life? They have strict timetables about when to eat, when to sleep, sometimes even when to shower. They are permanently being controlled and treated as objects of huge governmental powers. Prisons as an institution to segregate and “hide” offenders from the society create a parallel society which has nothing in common with the “real world”. The second aspect is the wording of rehabilitation in itself: in order to rehabilitate a person, one necessarily has to label it as being “different” in comparison with the social standard. Instead of reintegrating these “criminals” in the society one intentionally stigmatizes them as “not being in line with the required standard”. And as it is with stigmas, one can never get rid of them again.

Due to these reasons, prisons on the one side, and the idea of rehabilitation on the other side, end up in being contradictory. Unfortunately there is no convincing alterative to prisons at the moment, but one has to wait what the future holds in times of on-going debates about alternatives to incarceration, such as restorative justice.



About the “evil monster”

“Why did I have to kill them? I had to kill…my conscience told me they had to be killed.” – that is just one of the many quotes from Anwar Congo, a main character in Joshua Oppenheimer´s unique movie “The Act of Killing”. During that shocking, unsettling and surreal movie, we are listening to a funny, singing and dancing old man, who nearly hides the fact that he killed around 1000 people in a brutal way.

At first glance, Anwar Congo seems to be one of the so-called “evil monsters”“relentless killers”, who enjoy killing and torturing people as sort of “incarnation of the devil”. But as the movie goes on, that view begins to totter: one can see signs of regret, self-reflection and human characteristics.

That is what makes Oppenheimer`s way of approaching the displeasing subject of genocide interesting and different from other movies: I started to compare it with the portrayal of Amon Göth, a German SS Officer, played by Ralph Fiennes in a both impressive and deeply horrifying way, in Steven Spielberg`s Holocaust movie “Schindler´s List”. The officer is shown as a rootedly evil person without any sign of humanity or empathy, so that one can definitely believe in the existence of bad humans, personifying cruelty and sadism – figures of speech often used in public discussions about perpetrators.

Oppenheimer however raises further questions: What is going on in a killers mind? Might we all have the potential to kill people?

In addition to those already profound questions, the movie made me think of another issue: How do we define who is evil and who defines that? And are there really people, who don’t feel any empathy for anyone? And moreover: When was the historical starting point for showing deeper interest in the mind of offenders, rather than just imprison or, in the last resort, executing them?

According to Michel Foucault, as he points out in his paper “Discipline and Punishment”, the latter turned out to get more rational during the 18th century. The function of punishment shifted from corporal punishment to the attempt of changing and controlling the offender´s mind. His implementations increased my interest in examining the reasons for that shift, and how the new type of knowledge, provided by experts, changed the law and our conception of punishment. Might an interdisciplinary approach help finding the answer to the question, whether one is right in calling serious offenders “evil monsters”?


Foucault’s ‘Discipline and Punish’- A Tale Of Norms.

In Foucault’s Discipline and Punish, he tries to illustrate and analyse the historical development in the punishment system and style over the years. From the cynically crude scenes of the public execution where each body part is being ripped apart to the contrasting routine of the modern penal system of incarceration-it is all about the body. Foucault is very much interested in examining the relationship between power and the infliction of bodily pain but also by going beyond the physical realm of what the body represents. The power that is exercised when punishing is different from the violence that affects the body physically in the modern era, its main aim is to change people mentally as well and to make them more ‘normal’.

The prison’s ‘rehabilitative’ or ‘reformative’ function of removing the ‘subnormal’ or ‘abnormal’ individual from society for a period of time and making him ‘normal’ again by imprisoning him speaks volumes. It essentially means that there are certain norms or standards that people need to conform to in order to be considered as normal. If one follows and adheres to the ideologies of the society he/she is living in, then he/she is a normal, law-abiding, citizen. However, if he/she defies those ideologies, then a temporary removal from society is needed to enable ‘re-normalisation’. So, the penal system is primarily a system of exclusion. Is Foucault suggesting that norms are present only to constantly measure, control and evaluate our behaviour? He most probably is. Is he saying that punishment in the form of the prison is less concerned with justice but more so with the “manipulation of the body and soul” (Discipline and Punish)? He most definitely is- it is more about obedience than justice.