A Discussion of Justice in Relation to Crime and the Rehabilitation of Offenders Act
“Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.
For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many. Therefore in a just society the liberties of equal citizenship are taken as settled”
A Theory of Justice – John Rawls
This is how John Rawls opens his discussion of justice and what constitutes a just society. He places justice at the very heart of social institutions suggesting that if an arrangement is not fair and equitable for all then it cannot be considered social.
He then goes on to equate truth as the fundamental foundation of thought. If we are not interested in reaching the truth then the thought lacks the integrity necessary to relate beyond of it’s own self reference. The thought lacks a system which relates it to the world beyond our own fictions.
In his work Rawls discusses how he builds his theory of justice on the traditional theory of the social contract; in particular as represented by John Locke, Jean-Jacques Rousseau, and Immanuel Kant.
The idea of the social contract revolves around discussing where legitimacy of authority resides and the relations between the group and the individual. The social contract expresses an agreement to a shared set of norms which in turn ensure the collective protection of certain rights for the individuals.
Rawls interprets and reworks four key activities which Kant laid out as vital to constructing an ethical position based on reason: the identification of the problem, the engagement with common sense, the construction of principles, and the authentication of principle. Nicholas Tampio argues that Rawls places a critical intellectual sensibility as most important to interpret Kant.
(Nicholas Tampio. (2007). Rawls and the Kantian Ethos. Polity, 39(1), 79-102)
Kant formulated that the moral concepts which we discover in practical reason should apply equally to our public and nonpublic lives. He thought ethics should be self evident and self organising having an internal logic (constitutive autonomy).
In these terms he argues that there is an objective logical order of values and that this order can only be constituted by the application of human reason.
He builds an idea of rational morality which transcends the individual and is famous for his ‘categorical imperative’. A true moral proposition cannot be tied to particular conditions such as the identity and wishes of the person asserting the proposition.
It should have the quality of universality about it being applicable to everyone. In his formulating of the categorical imperative he wrote:
Act only according to that maxim whereby you can at the same time will that it should become a universal law.
Act as if the maxims of your action were to become through your will a universal law of nature.
Act in such a way that you treat humanity, whether in your own person or in the person of any other, never merely as a means to an end, but always at the same time as an end.
Thus the third practical principle follows as the ultimate condition of their harmony with practical reason: the idea of the will of every rational being as a universally legislating will.
Act according to maxims of a universally legislating member of a merely possible kingdom of ends.
With this influence John Rawls wrote his work examining a distributive vision of justice in which inequalities in outcome do not arise. It is a vision which represents everyone equally. He writes about an ‘inviolability’ of each and every individual which is founded on justice.
This is not something which can be traded off even when the majority wishes of a population will it – what is injust is injust in nature and does not change under utilitarian bargaining. To harm a single individual for the welfare of a whole society is still a clear wrong.
This we can relate to the founding principles of human rights. In 1948 the Universal Declaration of Human Rights was drawn up creating a foundation for international human rights law.
The Universal Declaration of Human Rights expresses a statement of the human rights which are universal and inalienable; indivisible; interdependent and interrelated. Since its creation it has prompted the development of a number of legally binding international human rights treaties.
In a society which has the pretentions of human rights, law and egality, practices of human rights necessarily apply to everyone. Distributive justice is constitutive of a good society; without it there can be no peace. This means that it extends to everyone in ‘equal citizenship’. It is bound up with the rights which belong to people.
When someone breaks the social contract they are then punished. This is enacted through a series of checks and balances codified into the institutions of the police force, the judiciary and the prison system.
If someone has done harm or engaged in wrongdoing, there is due process for these people to be brought before the law being overseen by elect officials. The harms are weighed and proportional punishment issued.
It is never in any doubt that the victims of crime are to be represented by the law. The questions need to be asked about what law leads to a better, more just society…
If a custodial sentence is issued by the courts then the person still has human rights. These have been detailed by the United Nations Human Rights Office of the High Commissioner and include:
All prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality.
Conditions shall be created enabling prisoners to undertake meaningful remunerated employment which will facilitate their reintegration into the country’s labour market and permit them to contribute to their own financial support and to that of their families.
The notion that people should be denied their human rights is injust and inhumane. To act in such a way is to create the problems which the criminal justice system purports to be solving.
Some people argue that people who have been sent to prison have relinquished their human rights, however, this is their opinion. In law prisoners are entitled to being treated in such a way which is not purely punitive but also in what is referred to as rehabilitative.
Once released from prison and when they have served their sentence, the Rehabilitation of Offenders Act 1974 governs how long a person can be identified with their breaking of the law and punished for it.
At some point society has to allow the individual to get on and live a normal life. This is when a conviction is regarded as spent, although some offences stay on record. At any given point people should be allowed to take part in education, cultural activity and to undertake meaningful remunerated employment.
Over the years that Ragged University has been organising open educational activities there have been a number of people who have come out of the criminal justice system who have taken part.
As an organisation the view is taken that everyone is allowed to take part in cultural and educational activities as a part of their fundamental human rights. So long as people are acting within the bounds of the Universal Declaration of Human Rights and trying to add to public value, all are welcome.
To autonomously take on the role of arbitor of justice beyond the decisions of a court ruling and actively ostricise someone from being involved in educational and cultural activities is ill concieved. It ultimately creates problems.
So too is the idea that each person is to have their history autocratically searched and put against their name. This is to stigmatise and punish people beyond the scope of the law. Lord Dyson in the Court of Appeal concluded that blanket criminal records checks are not “compatible” with a key part of the Human Rights Act. Neither is active stigmatisation of individuals.
It is a dark society we create if we are to indefinitely punish people for the mistakes they have made after they have served their penal sentence. Trial by social media is problematic as there is no due process based on legitimated principles of establishing balanced knowledge.
Those who want to indefinitely punish and hobble people who have transgressed are creating a Hobbesian society which progressively gets worse for everyone by compelling the creation of underclasses.
The cries ‘not to rehabilitate’ people who are in, or have been in, the criminal justice system are reactionary and narrow. They neglect to look at the big and interlocking pictures which must be a part of the just society – the good society; a work always in progress.
I will finish with an excerpt from John Stuart Mill (pp 346):
“The whole intellectual and moral achievement of mankind depends on the power of rectification of errors. At the moment of their first belief, humanity became the prey of a Pandora’s boxfull of error and false belief, but they can be saved by their only source of intellectual hope: corrigibility.”