There are two important types of justice. Procedural justice, a primary goal of Western law, focuses upon using and implementing decisions according to fair processes. Substantive justice, on the other hand, reflects the content of the result of procedural justice and often is concerned with deeper issues of equity. Procedural justice can be viewed in terms of whether the process of punishment appears objectively fair to outside observers, while substantive justice can be interpreted in terms of whether a punishment subjectively is perceived as fair by the participants inside the process. Theories on justice and equity, and the implementation of these ideals, are usually found in philosophical literature. Justice as a concept typically is presented as universal and transcendent rather than as grounded in a social reality that has a particular historical and comparative context. Most of the dominant theories focus on the normative goal of what justice should be rather than studying how justice is defined by societies in specific places and at particular times. These concepts increasingly are used and imposed via hegemony (Gramsci 1971); that is, they are often exported through processes of cultural imperialism (Fanon 1967).
ENTITLEMENT AND UTILITARIAN VIEWS OF JUSTICE
The entitlement or libertarian view of the American philosopher Robert Nozick (1938-2002), the utilitarianism of John Stuart Mill (1806-1873), John Locke’s (1632-1704) concept of consensual constitutional government, and the social contract of Immanuel Kant (1724-1804) via the American philosopher John Rawls (1921-2002) represent some of the more popular Western theories of justice. Justice from these perspectives often serves as a source of legitimation for the development and use of law. Justice from an entitlement perspective emphasizes the importance of private property and individual freedom in juxtaposition to the increasingly controlling role of the state. Entitlement stresses the importance of liberty and efficient economic relations—whereby liberty is posited as more crucial than equality. As a transfer of property, however, such a system of social relations has not been realized in practice. Specifically, its assumptions about fairness in acquisition and transfer not only have proved unworkable, they are a central part of the allegiance to entitlement for the privileged and typically reproduce or increase inequity in class and community relations. When put into action, entitlement theory has placed efficiency before equity, and greater inequality has ensued.
Justice from a utilitarian point of view following Mills’s demands that society provide the greatest utility or happiness to the greatest number, the majority. A dominant part of this theory requires that people treat each other equally, yet equity can be sacrificed for the greatest utility or happiness. However, as Rawls argues, natural endowments should not determine material outcomes, although this theory of merit, too, can be revised in light of what most benefits the common good. More problematic is how the majority often has been defined—for example, Aristotle’s (384-322 BCE) exclusion of slaves in ancient Greece, and the exclusion of indigenous peoples in many modern nation-states. In the Western tradition, the "majority" typically is defined as those who support, implicitly or explicitly, the Western liberal project and the narrow meaning of rational "man" and are uncritical of technological development. Following the current standards of most international organizations, however, the majority of the population in the world consists of "minorities."
Rawls’s social-contract metaphor presents the idea of a veil of ignorance to correct such inequities. Behind this veil, individuals make decisions about fair and equitable resource allocations. The role of conventional policymaking in implementing the contract reveals, however, consistent allegiances to uncritical plans of development promoting, once again, efficiency over equality. Policymakers and planners often do not serve the interests of justice because they or their political authorities serve their own interests at the expense of others. Rawls’s justice principle—that development for some is justified only if it benefits all—becomes circumvented.
The problems mentioned above can be addressed by deriving principles of justice from a particular historical and comparative context. Justice can be examined within social relations and material conditions that are specific and concrete. In this context, justice can become an important tool for analyzing change, "development," and the use of law. Legal equality, for example, is an abstract ideal that often has been employed as a metaphor for justice. From the Western perspective on liberalism, in the United States in the eighteenth century, for example, the individual was defined as autonomous, the fundamental unit of society. Rather than viewed as subjects, individuals were defined as citizens who were born equal and free. This definition excluded the majority. Under the declaration that all "men" are created equal, women, poor men, and slaves were ignored. Legal equality for women, poor men, and slaves did not become a fact until the twentieth century. Legal equality, therefore, far from being a reality, can be viewed as a metaphor that emerges from specific, historical conditions.
As the twentieth century progressed, the modern nation-state legitimated its control and expanded its jurisdiction by deconstructing indigenous solidarity, experiential education, and family and community welfare as it constructed national citizenship, formal education, and limited forms of government welfare for individuals. Concepts of nation-state and citizen were presented as major sources of solidarity and identity, emphasizing an abstract concept of nationalism. Formal education was proclaimed as superior to experiential learning. The nation-state centralized welfare amid claims of its progressive care, yet modern forms of state welfare usually have created varying levels of stigma for recipients.
THE NEED FOR COMPARATIVE AND HISTORICAL ANALYSIS OF JUSTICE
Justice, then, is a useful concept when one examines how it is constructed in different social and political settings and explores how it is used as a source of legitimation for the development and use of rules such as law (Lauderdale 1997). The study of justice should include an analysis of the fair distribution of benefits and burdens, including rights, obligations, deserts, and needs. This manner of studying justice also differentiates between short- and long-term impacts of change, and may identify well-intentioned suggestions for change that may result in unfortunate consequences. The comparative and historical analysis of theories and practices of justice is a relevant alternative to most perspectives on what justice should be. A commitment to addressing the injustices committed in the past by making the lives of people who have suffered those injustices more secure, peaceful, and prosperous may benefit those people who have (directly or indirectly) benefited from historical injustices (Thompson 2002).
A comparative and historical analysis of justice also considers the crucial role of noneconomic factors, such as religious beliefs and ideology, which people sometimes privilege over the goals of Western development. Liberation theology, for example, appeared as a religious social movement in reaction to the binding ties between the elites and the Catholic Church, which exacerbated obvious inequities, especially those of land use and ownership (Gutierrez 1988). The theology began not with theory but with the realities of injustice experienced by the peasants and indigenous people of Latin America. It calls for individuals, communities, and corporate entities to be involved in extricating themselves from serving the interests of the elites of society and instead to work on behalf of the marginal with the goal of establishing solidarity and equity. Working with the oppressed is presented as a pragmatic prescription to fight poverty and oppression and to liberate people here and now. From such a perspective, justice is revealed as a structural phenomenon, and the dynamics of the world market system, promoted in tandem with liberal democratic principles, are shown to be unjust.
Such approaches to justice stress the development of peoples and not economies, emphasizing the conditions under which economic and political dependency works against community determination and autonomy. The perspective, then, is about whether certain kinds of growth can really solve the problems at hand. The dominance of capital or economic interests as the developing principle is seen as contradicting the ethical principle that workers and labor must be given priority in development of an economy based upon justice. Here, there is a principle that there must be an ethics of means as well as ends. The scholasticism found in many ethnocentric theories of justice based on Western philosophy can benefit from analyses of where perceptions of justice emerge.
Theories of justice based solely on abstract and universalistic criteria have been unable to respond to people throughout the world who are experiencing the presence of injustice in the form of poverty, landlessness, dispossession, political and religious oppression, and genocide. Philosophical formulas of justice are inadequate without systematic explications of the sources of injustice, including, at least: (1) an analysis of how participants are excluded from the creation of justice-related agendas, as well as decision making regarding policy agendas; (2) the continued exposure of exploitation in labor relations; (3) an examination of the factors leading to the erosion of communities, collective identity, and the right to sovereignty; and (4) the long-term cost to nature (including humans) when justice is defined as separate and subservient to humans.
Diversity cannot be denounced as deviance. Society cannot fail to acknowledge the dialectical nature of the conflict between totalization and particularism, corporate monoculture and bioregional diversity, and abstract uni-versalism and collective indigenous identity. Time (historical setting) and place (comparative setting) have proven that traditional assumptions about the implementation of fairness and equality are inadequate, especially for those individuals who exist at the margins of globalization. A workable theory of justice not only must acknowledge and extend foundational theories, but also must critically evaluate those theories so as not to neglect the fundamental connection.
