‘In This Interregnum’

Popular Justice

In introducing the journal’s first special issue, Boaventura de Sousa Santos (1992) suggested that for a concept to be a core subject of debate, it must be sufficiently broad and plastic to include new dimensions as the debate develops. As importantly, it must have vague boundaries so that what is in and outside the debate is never very clear. In such a debate, a discipline tests its edges and ultimately maintains its identity. Popular justice was precisely such an issue. De Sousa Santos referred to community justice and legal pluralism in his introductory essay, not popular justice. Others spoke of the contrast between legal formalism and informalism, but 6 of the 10 papers in this issue included the idea of ‘popular justice’ in their title.

The range of papers in this collection was impressive, with theoretical contributions balanced against case studies of popular or community justice in different parts of the world: Brazil, Chile, Mozambique, Nicaragua, India and the United States. The idea of popular justice was located historically in settings such as the Soviet Union, China, Cuba and Sri Lanka (Merry, 1992) and was then observed in contemporary settings, in a variety of roles. In Mozambique, for example, Gundersen (1992) depicted popular courts as sitting between the state and the community and reflecting both progressive and regressive social norms around issues of gender. McDonald and Zatz (1992), in their essay on revolutionary Nicaragua, were alert to the ways in which the model of a mixed economy restricted popular involvement in agrarian decision-making. In Brazil (Paoli, 1992) and Chile (Parraguez, 1992), the focus was on the ways in which increased political involvement by the poor and repressed was opening up democratic spaces within the law as dictatorship gave way to democracy. In India and the United States, in contrast, the emphasis was on the popular dissatisfaction that existed with the Indian postcolonial state (Sethi, 1992) and the ways in which earlier more radical forms of popular engagement in the United States were giving way to conservative forms of ‘neo-populism’ (Harrington, 1992) – not an unfamiliar theme today of course.

Popular justice was thus a moving concept. Harrington (1992) wrote of the experience in the United States of Community Boards which were shifting from what she called ‘authentic’ or ‘genuine’ populism, by which she meant forms of popular justice that justifiably could underpin governance strategies and direct action. The resulting liberal and radical visions of ‘community’ and ‘law’ were placed under attack by these conservative moves. The example is local in comparison with the deeper historical roots of popular justice, which lay in the 20th century’s experience of socialism and communism, in the struggles against fascist dictatorships of the 1970s and 1980s and in the liberation struggles being promoted in Africa and Central America. Yet, Harrington’s point about a radical understanding of community that could provide the basis for popular forms of agency, resist state authoritarianism and radically shape social demands and forms of government is to the point. That said, popular justice was an often inchoate idea that flourished in the 1980s on the back of the struggles of third world countries for liberation and emancipation. It then hit the pages of Social and Legal Studies just at the point in global politics when the world was turning again, and when, with the collapse of the Soviet bloc and a new unipolar world order, the social conditions for articulating popular justice were in retreat. In their place would emerge a world where the popular could be equated with authoritarianism and consumer choice. In such a world, emancipation would come to be regarded in both realpolitik and social theory as just the way and the language in which neo-liberal governance would occur.

Governmentality was Foucault’s word for anticipating and understanding this new world order, and it was to become an idea whose time had come. Ironically, there is an early interview between Foucault and some supporters of Chinese communism from 1972 in which he could be said to ‘out-Mao the Maoists’ in terms of popular justice. Where his interviewers suggest that a state apparatus and controls are necessary to promote third world communist revolution, Foucault responded that in the case of popular justice, ‘you do not have three elements, you have the masses and their enemies’ and the former ‘rely only on their own experience [and] purely and simply carry [their decisions] out’ (Foucault, 1980: 8–9). Such an argument might be seen as an early, radical account of the relationship between power and law, wherein social power overcomes law in a rather different, indeed inverted, way to that depicted in his Discipline and Punish (Foucault, 1979). In terms of popular justice, though, what it indicates is something of the roots of the conceptual dilemmas that made the topic vague and contestable in the manner described by de Sousa Santos. What did popular justice really mean?

Fitzpatrick (1992) neatly pinned down the underlying problematic thought, that popular or community justice was essentially informal in comparison to state law’s formalism, when he prefaced his contribution to the Special Issue with a line from William Blake: ‘Unorganised innocence: an impossibility’. Norrie (1996), in his later essay in the journal, followed this line of thought to argue that the suggestion that popular justice involved a ‘dialectics of formal and informal control’ itself involved a strong and misleading dose of Weberian antinomialism (the abstraction and opposition of form to substance, of the formal to the informal) alongside the more obvious links to Marxian and Hegelian dialectics. His argument, that a structural conception of ‘legal architectonics’ combining form and substance differentially in different contexts, including those in the so-called popular justice settings, reflected the experience of writers in the field such as Gundersen and McDonald and Zatz, who found the rhetoric of popular justice to be at odds with the realities of progressive or regressive state governance and economic strategies in countries where a genuine commitment to emancipation struggled to win out.

A coda to this debate appears in a later essay by Hund (2008) in which he criticizes Rick Abel’s influential account of South African popular justice. Abel is well known for his two-volume edited work on the politics of informal justice (Abel, 1982), and he later wrote an extended study on law and justice in the struggle against Apartheid in South Africa (Abel, 2002). Hund’s complaint is against Abel’s understanding of the Alexandra Treason Trial in which five defendants were charged with offences implying that grass-roots community governance was in effect an attempt to overthrow the state. In reality, it was an effort to give form to township justice in a situation where the state could no longer govern. Hund writes that the lesson of the Treason Trial for students of popular justice is that ‘“self-help” popular justice can create social capital which teaches people habits of cooperation’ and he adds that witnessing ‘non-state sources of social ordering, justice and living law is not a minor insight’ (2008: 488). Whether extra-state law and popular justice ‘can create and sustain social life in a fair and decentralized way must be one of the most interesting and pertinent sociological questions legal scholars can ask’ (Hund 2008: 488), but he suggests that a method of understanding popular justice that fails to give credence to its particular formal qualities will end up misrepresenting and discounting its true historical and emancipatory significance. While popular justice may represent a debate that has been eclipsed for a significant period of our recent history, it points to issues of self-governance and emancipation that may find themselves back on the agenda in the years to come. If scholars find the ground shifting in new directions, they would do well to heed Hund’s recommendation that such justice is differently formed rather than unformed.

Social Control and Governmentality

In the very first issue of Social amd Legal Studies, an article by Hatty and Burke (1992: 88) discussed the extent to which the stigma associated with the medicalization of diseases such as AIDS/HIV and its link to ‘discourses on pollution’ contributed to ‘the construction of dangerousness’ in the context of crime and punishment. This article effectively inaugurates what became perhaps one of the longest, richest and most pervasive traditions of scholarship within the journal: the critical analysis of criminal justice as a means of social control and an instrument of governmentality. Papers within this broadly conceived theme have largely explored the extent to and ways in which diverse aspects of criminal law and justice are intrinsically connected to a particular form of social, or civil (Farmer, 2016), order. And, just as in Hatty and Burke’s article, these papers have shown an active concern with exposing the extent to which the construction of values, ideas and institutions within criminal justice has served a specific social, political and economic agenda. This will often, if not always, produce, promote or at least manage conditions of exclusion and domination.

There are at least two important insights that can be gained from looking at issues of crime and punishment from the perspective of governmentality, which have been helpfully explored by one of Hudson’s (1998) contributions to the journal. One such insight is the intuition that power is shaped and exercised in different ways, which effect different forms of control – and that law plays an important and complex role in these mechanics. Hudson has highlighted how scholarship on governmentality has turned our attention to the idea of ‘the juridical’ as a specific form of power directed at controlling acts, which can ground an expanded understanding of the political role of the legal system. Another important notion within this framework is that of normalization as a ‘project of governance’ (Hudson, 1998: 555) which is intimately related to the nature of social control in and since modernity. In broad strokes, then, the theme of governmentality in criminal justice can be said to be primarily represented by efforts to understand criminal justice as a form of juridical power, which is exercised through and in order to produce images of normality and deviance which are then, respectively, promoted and repressed in social reality and experience.

One of the main ways in which these insights are explored within this theme is through analyses of the interrelation between knowledge and power, as exemplified by Melossi’s (1993: 259) discussion of how ‘conditions of punishment are dependent on the social structure’, and how they are conditioned by the social perceptions of power elites. Similarly, the ideological dimension of criminal justice policy and practice, as well as the extent to which these are enabled and legitimated through specific discourses and symbolic apparatuses, constitutes a common and invaluable line of enquiry. Many of the notable interventions in this area make use of historical critique in order to uncover the implication of criminal justice in the project of social control. For instance, Pratt’s (1996) article on the social construction of dangerousness examines how the notion of the dangerous offender shifted significantly in the end of the 20th century, from an inherently welfarist conception to an approach based on actuarial risk, which was more attuned to the needs of neo-liberal society. This way, the framework of dangerousness laws legitimated a new form of governance which was devoid of the original aspirational aims once attributed to that form of regulation. Farmer’s (1996) paper, in turn, highlights how the doctrinal definition of crime contained within legal knowledge, while circular and therefore seemingly imprecise, in reality serves a very specific purpose in the constitution of the modern criminal law, which is central to its role as an instrument of social order.

Looking at criminal justice through the lens of social control and governmentality almost inevitably means highlighting its violent, oppressive side. Indeed, in its relation to power, criminal justice defines and reinforces an image of order and community primarily by excluding, both physically and symbolically, certain individuals and groups from full participation or membership in society. It does so, for instance, by reproducing a problematic link between race and drugs in the criminalization and enforcement of drug crimes, as suggested by Manderson (1997). Likewise, Vaughan (2000) has also investigated how the law can construct young people as a social category in need of enhanced regulation, deploying the notion of active citizenship as a device targeted at controlling and repressing disorder. Throughout its history, scholarship in Social and Legal Studies has covered a wide variety of instances in which criminal justice contributes to the oppression of specific groups and populations, from youth, the insane and the intoxicated, to colonial, racialized and indigenous populations, including problems such as drug laws, poverty laws, anti-social behaviour, human trafficking, hate crime laws and the criminalization of migration.

Generally, attention to the relationship between criminal justice and control emphasizes the ‘positive’ and ‘productive’ nature of legal power. However, in doing so, this perspective highlights how the social role of criminal justice institutions appears mostly negative, in the sense that it maintains, and even actively produces, problems of structural inequality and sociopolitical violence. Nonetheless, arguably the main picture that emerges from such a study is actually one which reveals and magnifies the tensions contained within criminal justice, particularly as a liberal project. For example, Brown’s (2004) paper examining the criminalization of certain tribes in 19th-century India exposes the complexity of such historical settings, where a predominantly repressive and authoritarian discourse around the criminal tribes legislation and its implementation by administrators is contrasted with a much more ambivalent historical record in relation to the government of tribes such as the Minas, evidenced by underexamined military records which displayed a more classic liberal approach that privileged recruitment and assimilation over repression. Likewise, there is an intrinsic paradox contained within the idea of criminal justice, one which uneasily conjoins violence with emancipation. The instrumentality of criminal justice as an apparatus of governmentality and social control is an important aspect of this paradox, but it is not the whole story. Interventions such as Brown’s have recognized and explored this complexity, applying a post or decolonial perspective which contextualizes criminal justice within a contradictory imperial project and process, which conditions and underpins its structural and ideological violence.

Furthermore, although looking at criminal justice from the perspective of social control undoubtedly implies to look at it in a negative and critical vein, some contributions have sought to use these critical analyses as pathways towards thinking of forms of improvement, resistance and perhaps change. In a rich exchange, Hutton (1999) and Hudson (1999) have debated, in their respective articles, the possibility of advancing Hudson’s idea of a ‘social theory of culpability’ in criminal justice, and thus allowing the notion of criminal responsibility to address, or at least accommodate for, social problems such as poverty. More recently, Allo (2017) examined the possibility of using the criminal trial as a space of resistance, by tapping into the political essence of the criminal trial through re-signification, from the perspective of the trial of Marwan Barghouti in Tel-Aviv. Therefore, although looking at criminal justice as a means of social control primarily evokes the limits of pursuing justice through the legal disposition of crime and punishment, this approach also inevitably explores the promise of emancipation embedded within this pursuit, echoing Foucault’s intuition that the productive character of power includes the production of the very means of resistance against it (Foucault, 1980). Ultimately, however, the extent to which the project of criminal justice reveals itself as perpetuating many forms of injustice and aimed at producing power, exclusion and control evidences how any promise of emancipation contained within it is, at the very least, hard to articulate and yet to be actualized.

Gender and Sexuality

Though in many ways related to the main critical concerns discussed in relation to the previous theme, looking at these concerns from the perspective of gender and sexuality renders particular insights, and such is the breadth and depth of Social and Legal Studies’ scholarship on such matters in criminal justice, that this area deserves to be acknowledged in its own right. In the journal’s history so far, something between one-third and one-half of all the papers published discussing criminal justice have issues of gender and sexuality as one of their main foci. This is not only a clear acknowledgement of the general relevance of gender and sexuality to social and legal studies in general but also a specific reflection of the journal’s commitment ‘to feminist […] perspectives to the study of law’, as expressed in its mission statement. Furthermore, although – as suggested by contributions such as Pitch (1992) – feminist scholarship is particularly apt to shed light on issues of social control and oppression, the way in which it does so is by seeking a deeper, more substantial understanding of the subjectivities of the oppressed, thus maintaining a much closer dialectical connection between oppression and emancipation.

It should be said that, although – as just mentioned – the body of work involved in this theme owes a significant debt to feminist scholarship, the purpose of this section is not to delve in detail into the nature and quality of feminist contributions to the journal in the 25 years since its inception (such is the specific aim of another contribution to this issue). Instead, the focus here is on how discussions of gender and sexuality have informed an understanding of problems and debates in criminal justice. However, it should also be mentioned that the articles in Social and Legal Studies which have dealt with gender and sexuality in criminal justice have displayed an exceptionally inquisitive and creative approach to the theme, constantly dealing with matters that go beyond what could be considered more well-established discussions in the area – although the journal figures many important contributions to those discussions as well. For instance, one of the earliest papers published in the journal was Moran’s (1995) discussion of ‘the juridification of the male body and its desires’ in relation to the case of sadomasochism. In the following year, Payne’s (1996) article looked at changes in the history of psychiatric admissions and its link to criminalization and incarceration, to analyse the notion of masculinity in relation to the increasing ‘redundancy’ of the domestic role of young males. Then, later in that same year, Bell and Fox (1996) provided a fresh perspective to the study of the criminalization of women who kill, by moving beyond the traditional scenario of women who kill their partners in response to domestic abuse. Throughout its history, scholarship in the journal has discussed issues as diverse as homophobic violence and the criminalization of homosexuality, sexual violence against children and the criminalization of paedophilia, sexual and gender violence in an international and global perspective, human trafficking for sexual purposes, the criminalization of abortion and of pregnant women who take drugs, the problem of forced marriages, prostitution, incest, sexually transmissible diseases, among others.

In terms of the particular insights which this theme brings to criminal justice studies, as mentioned above, it exposes the gendered character of legal domination and of the civil order engendered through it, as well as the intimate and affective dimensions of its many forms of subjectification and social control. Within the scholarship in the journal, these issues have been explored through a variety of different methods and perspectives. Some contributions have directly offered rewarding reflections on the choice and the limits of methods, such as Smart’s (1999: 392) notes about the value of historical work to our understanding of sexuality, highlighting how such work ‘challenges our modern complacencies and arrogance, and brings us back in touch with the prolonged difficulties of bringing about social and legal change’, thus also ‘locat[ing] us…in an important tradition of endeavour and struggle’. There have also been examples of work that have explicitly enquired on the need for intersectional analyses of issues of gender and sexuality in criminal justice; for instance, Cossins’ (2003) paper on the cultural legal construction of different female subjectivities deployed the notion of ‘convergence’ to approach the interrelation between sex and race with regard to the vulnerabilities of certain populations. Some papers were based on literary and cultural analysis, like Millbank’s (2004) exploration of the representation of lesbians in a prison setting. Others employed creative empirical methodologies to circumvent the limitations of access to aspects of the criminal justice system, such as Ellison and Munro’s (2009, 2014) papers, which were based on the use of mock jury trials to understand the many factors affecting jury deliberation in rape trials.

Another aspect that should be highlighted about this area of criminal justice scholarship, that further differentiates it from the other themes, is the higher degree of ‘positive engagement’ with criminal justice practices and institutions – that is, a more consistent and active attempt to use the law, and the criminal justice system more broadly, as a space for struggle, instead of a solely problematic aspect of society to be abandoned or transcended. Many papers in the journal examine how to pursue a more substantial kind of justice through law, either through redeployment or through reform, echoing Smart’s (1999: 392) suggestion that ‘law, understood in its widest meaning, is still one of the most important sites of engagement and counter-discourse’.

Perhaps this is a reflection of the ‘utopianism’ (Lacey, 1998) inherent in aspects of gender critique, the belief that things can and should be different which can stem from the keen awareness that the values and normative categories upheld by the law lie in sharp contrast with concrete lived experiences. ‘Another law and justice’ should be pursued. As Lacey (1998) has suggested, critique, reformism and utopianism are often interrelated projects, so that attempts to reform and strategically deploy the law are not necessarily in tension with the recognition that the criminal justice system is predominantly an instrument of domination and oppression. The scholarly engagement with issues of gender and sexuality in the pages of the journal has therefore acutely expressed the complex and ambivalent dynamics of criminal justice and shown how the deeper and nuanced understanding of subjectivity and relationality promoted by such engagement has the potential to ground resistance.

Transitional Justice

Like ‘popular justice’, the idea of transitional justice probably thrives because its meaning is vague and plastic. It is associated with the transition from violent authoritarian regimes to more liberal (and neo-liberal) regimes that are judged politically and legally more progressive. Empirically, transitional justice studies analyse the legal forms that accompany such transitions and which seek to judge and resolve past violations in order to establish a better present and future. As Bell et al. (2004: 305) put it, ‘Transitional justice analyses provide important tools in understanding how societies emerge from violent conflict. As generally understood, “transitional justice” encompasses the legal, moral and political dilemmas that arise in holding human rights abusers accountable at the end of conflict’. This is a descriptive and thin, though still important, account of transitional justice, trimming the concept to political objects. If a stronger understanding were sought, it might be helpful to distinguish the justice that accompanies social and political transitions from ‘transitional justice’ in a deeper sense, meaning a justice that is specific to, or immanent within, a dynamic social setting where there is a desire to question the past and find different and new ways of proceeding. It would emphasize the different trajectories and promises immanent within transitions. Comparison might be drawn with the socially liberative qualities of transition envisioned in psychodynamic theory and therapy by writers such as Lear (1998) and Benjamin (2018). Writing in the same issue of Social and Legal Studies, for example, Campbell (2004: 346) proposes with regard to humanitarian law that

we should…begin with…the institution of justice [which] requires a radical rethinking of the existing positive legal order of international humanitarian law [and] the development of a new positive legal order, from a new symbolization of the wrong – such as a new category of humanitarian crime of sexual violence – to a new symbolization of justice – such as a new conception of legal remedies.

Since the turn of the century, Social and Legal Studies has published about 30 essays on transitional justice. The scholarship is rich and diverse, so general conclusions are hard to achieve. Geographically, it has discussed the phenomenon in a variety of settings: Northern Ireland, South Africa, the former Yugoslavia, Sierra Leone, New Zealand, Rwanda, Argentina, Japan and Sri Lanka. Papers have discussed the Holocaust and the overall effect of Empire and the need for restitution. Within these different settings, authors have focused on a variety of issues including reconciliation; the role of the trial; and the relationship between the trial and other goals of transition such as truth, fact finding and healing, the creation of new representative institutions, the treatment of girl soldiers, of gender more generally, reconciliation with regard to historical wrongs, former combatants, the place of social and economic rights in settlement, legacies of prejudice, alternative tribunals, apology, the role of forensic science, the court as archive and gendered crime. A general focus has been on victims, the translation and subsumption of violation and trauma into a political setting, the resulting hierarchy between ‘good’, ‘less good’ and ‘bad’ victims, the ability of victims to reject transitional processes conducted in their name, the sometimes progressive recognition of gender in victimhood and then the unforeseen political effects of so doing.

Theoretically, a range of approaches has been used to highlight the connection between a process of supposed transition and the underlying social, political, ethical and emotional relations that are partially or otherwise engaged or denied by, or that are deflected, changed and controlled in, the process. To achieve these rich and subtle understandings of the relationship between forms of power and how they address deep-seated kinds of trauma and violation, a variety of theories are deployed including feminism, psychoanalysis, critical discourse analysis, Derrida’s theory of ‘spectrality’ and Agamben’s of ‘bare life’. In all cases, the question might be: as liberal legal power reaches out in a variety of purportedly enlightened, humanitarian ways to resolve historically severe violation and to allow communities to move on, what is nonetheless missed or repressed, what returns and repeats and what bites back at the proposed resolution?

In their survey of the travails of transitional justice in Northern Ireland, Bell et al. (2004) examine the salience of the concept of the rule of law in a violent and conflicted setting. They consider the need to reshape legal institutions to face new realities, the need to deal with the past, the accommodation of minorities and the establishment of minority rights and unmet transitional needs such as those existing around the treatment of gender. The claim for a new understanding of gender relations emerges as a need for a future that would not be the exact same as the past, in which work needed to be done to remodel and live social relations differently. Such a claim for a different future taking off from the present is generally immanent to transitional justice. As Bell explains in the same issue of the journal, the new institutional idea of a Civic Forum in Northern Ireland cannot be seen as simply a technology for peace but must rather be understood as a way of thinking about the future differently from the present or past. Peace requires, she says, ‘a call to the future, a call for a new spirit. This new spirit is one that cannot be conjured, marketed and distributed like an easy sentimentality’. Rather, ‘the pursuit of Peace has to be sought in the messiness of the present, and…the heterogeneity of the past’. The ghosts of the past cannot be simply banished but must rather be acknowledged leading to ‘a conjoining of…divergent paths as a condition of that future’s very possibility’ (Bell, 2004: 423).

Bell’s comments, aligned with Campbell’s demand for a new humanitarian law, Lemaitre’s account of women in a Colombian war zone, and juxtaposed with Bell et al.’s sober evaluation of the problems of actually existing transition, highlight the nature of transitional justice. On the one hand, it is a discourse rooted in an historical period and directed at an existing empirical phenomenon, one that has developed far beyond its early roots in the trials of the post-Second World War period. It is the form of justice that in different ways has accompanied the advent of a unipolar world order, where some (but by no means all) regional disruptions could be smoothed over in more confident times through legal and quasi-legal means. It deals in the currency of that order – the rule of law, the transition to democracy, individual human and minority rights, the neo-liberal economy. From that standpoint, it engages with the difficulties of getting the social world to behave according to the liberal imaginary’s prescribed legal standards. (What happens when the violence doesn’t stop?) But transitional justice is then a process with clear limits, for the currency in which it deals is itself able to provide the basis for only a limited transition. Private property rights but not social and economic obligations or the upholding of peasant land rights. Formal democratic rights but no substantive equalization of access to wealth. Gender recognition in terms of violations but no change in terms of roles. On the other hand, the term ‘transitional’ signifies something more than a legally and politically trimmed and tailed change that leaves the broader issues undisturbed. Here, the concept aligns with the real experience of those who have undergone violation and trauma and who do not want themselves or their families to repeat it. ‘Never again!’ is the oft-repeated claim, and it has to be repeated precisely to the extent that the underlying situation remains unchanged, to the extent that the looking to the future does not entail an ambitious rethinking of and engagement with the past. In this deeper sense, transitional justice adds moral and political heft to the idea of transition and draws on emancipatory demands immanent but not actualised in the social world.