Justice in the Risk Society: Challenging and Re-affirming 'Justice' in Late Modernity PDF
Preview Justice in the Risk Society: Challenging and Re-affirming 'Justice' in Late Modernity
B A R B A R A H U D S O N Justice in the Risk Society Justice in the Risk Society Justice in the Risk Society Challenging and Re-affirming Justice in Late Modernity Barbara Hudson SAGE Publications London • Thousand Oaks • New Delhi © Barbara Hudson 2003 First published 2003 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, transmitted or utilised in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without permission in writing from the Publishers. SAGE Publications Ltd 6 Bonhill Street London EC2A 4PU SAGE Publications Inc 2455 Teller Road Thousand Oaks, California 91320 SAGE Publications India Pvt Ltd B-42, Panchsheel Enclave Post Box 4109 New Delhi 100 017 British Library Cataloguing in Publication data A catalogue record for this book is available from the British Library ISBN 0-7619 6159 3 0-7619 6160 7 Library of Congress control number available Typeset by C&M Digitals (P) Ltd, Chennai, India Printed in Great Britain by Athenaeum Press, Gateshead In memory of my father, Frederick Groves Leigh, a good man who cared about justice v Contents Acknowledgements ix Introduction x Part I Challenging Liberal Justice 1 1 Justice in the Liberal Tradition 3 The emergence of the liberal agenda 6 The morality of reason 9 The greatest good 13 Fairness and impartiality 18 Liberalism and punishment 23 Consequentialist theories of punishment 24 Liberal retributivist approaches 27 Threats to security 32 Conclusion 36 2 Risk and the Politics of Safety: Justice Endangered 40 The ‘risk society’ thesis 43 Risk and criminal justice 45 Risk, blame and the end of solidarity 51 Risk, insurance and governmentality 53 Risk and sovereignty 57 Explaining the move from risk management to risk control 60 Risk and justice 67 Risk society and liberal security concerns 70 Conclusion 73 3 The Communitarian Challenge 78 The emergence of a politics of community 79 Community as moral resource 84 Community justice 85 Critical communitarianism 91 Communitarian constructivism 94 The value of community 96 Membership, power and rights 103 Conclusion 106 vii JUSTICE IN THE RISK SOCIETY 4 Identity and Difference: Feminist and Postmodernist Critiques of Liberalism 109 Liberal feminism 111 Rights, equality and identity 116 Discourse ethics: the encounter with the concrete other 123 The contingent subject; universalism without guarantees 129 Feminist legal theory and the problem of essentialism 138 Conclusion 141 Part II Reaffirming Justice 145 5 Reaffirming modernity: Habermas and discourse ethics 147 Background: Habermas and the Frankfurt School 148 The development of discourse ethics: (1) consensus and truth 151 The development of discourse ethics: (2) discourse and universality 154 Assessment and critique 157 Law and democracy: Habermas’s recent work 162 Does Between Facts and Norms meet earlier critiques of Habermas’s discourse theory? 165 Legitimacy and the risk society 169 Habermas’s argument with post-structuralism 170 Conclusion: Habermas and criminal justice 174 6 Giving Difference its Due: Discourse and Alterity 178 Liberalism and the expulsion of difference 180 Law’s violence 185 Justice and the ethics of alterity 191 Lyotard: justice and the multiplicity of discourses 197 Conclusion: postmodernism and the possibilities of justice 200 7 Doing Justice in the Risk Society 203 Justice and risk 203 Liberal justice and its critics 204 Discourse and community 207 The importance of human rights 213 Human rights: conditional or inalienable 213 Defending human rights: rights, discourse and community 220 References 227 Index 245 viii Acknowledgements This book has taken an inordinately long time to write, and I wish to thank Gillian Stern and her colleagues at Sage for their patience. There are always tales that could be told about why books take so long, but with this book there are two principal causes of delay. The first is that I didn’t want not to be writing it: so much of my work is about things I dislike – race discrimi- nation in punishment, for example – and it was good to be writing something positive and idealistic, what justice should and could be like. The second reason is that each chapter engaged with vast bodies of literature, and at times I felt both intimidated and overwhelmed. I am therefore extremely grateful to David Garland, for his wise words at an ‘author meets readers panel’ at the British Criminology Conference in July 2002: ‘A book should know its questions and try to answer them, not try to answer all possible questions.’ Thanks David, that got me out of the trees and into the wood! Lots of people have helped me develop the ideas in the book. Andrew Ashworth, Andrew von Hirsch and Antony Duff have been important throughout, and the arguments and debates we have had have helped sharpen my thinking at various points. My own ‘risk society’ was a group of crimi- nologists who write influentially and insightfully about risk: Kelly Hannah- Moffat, Pat O’Malley, Jonathan Simon, Kevin Stenson and Richard Sparks have provided good ideas and good company. Stan Cohen’s work is inspira- tional as always; Kathy Daly, Joe Sim and Phil Scraton have provided debate, encouragement and friendship whenever I’ve needed it. Colleagues and students at the University of Central Lancashire have questioned, argued and encour- aged: Gaynor Bramhall, Helen Codd, Michael Salter and David Scott have been the most supportive and understanding colleagues one could wish for. Heather Scott has been a far better friend than I deserve. Finally, my love and thanks to Harry, for your patience, sharing laughter, pouring gin and tonic when required, and all kinds of good things. ix
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