The Legal Perspective of Social Justice

Justice is a famously hard thing to define. It is beyond fairness, it is more than equality. It is a jumble of values, perspectives and outside factors which evolve over time.

‘The Law’ is used interchangeably with ‘justice’. But it is wrong to say that when something has a legal outcome, it is a ‘just’ outcome, particularly a socially just outcome. Unfortunately, social justice appears to be a ‘happy accident’, rather than the central goal of the Law.

The type of Law most people are most familiar with is the court room because that’s the kind of stuff we see on TV with a lawyer theatrically putting arguments to a judge or jury. But this is the Law being enacted for a specific person, addressing a problem that they have personally experienced. In fact, most legal disputes require “standing”, which basically means that only someone who is affected by an issue can even bring a case to court. As such, this type of Law is focused on an individual getting some form of specific personal justice, rather than a larger social outcome.

Then again, if you repeat a single, individually just decision over and over throughout a society, does it lead to social justice? The legal system thinks so.

One of the major tenants of the legal system is precedent. Meaning that if a decision was made in one specific way once, it should be followed in similar situations in the future. This not only makes it easier for judges, but this predictability makes it much easier for individuals. People know what courts have thought in the past, they know what judges will probably say in the future, and they know the standard that they need to observe to not get punished. This means they can behave accordingly. If these precedents follow socially accepted norms of ‘justice’, individuals will know to act within these guidelines or be fined, or even put in prison.

Often people will call the Law a skeleton, or a scaffolding, but this is not quite right. That would make Law the core, and society has grown around it, or that laws come before social values. I heartily disagree. Laws lag behind a society. They cannot really lead a culture, especially in a democracy. Otherwise imposed rules will be rejected at an election, or simply ignored.

As society is always evolving, the social view of justice will always be changing. But the Law is pretty static. Precedent and predictability means it can only inch forward, bit by bit, trying to catch up.

As such, unfortunately the Law can lead to social disadvantage being entrenched. Even reasonable and compassionate judges can be forced to follow laws they personally disagree with, and may not further social justice, because they are bound to follow legal rules which have failed to keep pace with society.

“Real change, enduring change, happens one step at a time.”

Justice Ruth Bader Ginsburg (Notorious RBG: The Life and Times of Ruth Bader Ginsburg)

A Champion of Social Justice in the Law:

In an ideal world, all lawyers would be champions for social justice. But, we all know that too many fall short of this goal.

One of the most famous legal champions and an advocate for social justice is the late Justice Ruth Bader Ginsburg. Justice Ginsburg is known for her time on the US Supreme Court where she cast many important opinions which were often significant steps forward for many social causes.

However, throughout her time before being appointed to the Bench, Justice Ginsburg is remembered for her significant advocacy and skill in arguing a number of cases, particularly on the topic of gender discrimination. Although the issue of gender discrimination is hardly at an end, significant legal changes and the advancement of women’s rights throughout US Law were in no small part due to the skillful and ‘unbelievably cogent’ arguments of Ruth Bader Ginsburg.[1] 

Although it is hard to define what justice is, let alone social justice, it is fairly clear that the work of champions like Justice Ruth Bader Ginsburg can use the Law to achieve a more just society, and demonstrate how arguing the cause of an individual can advance justice for a society as a whole.

So how do we, as individuals and members of society, work for a socially just system of laws in Australia? Well, it is always possible to take the Ginsburg route, getting a law degree, and working tirelessly to undo injustices you see, but that’s a lot of work!

On the other hand, the biggest way in which all of us interact with the Law is actually taking part in democracy. Courts are slow, expensive and, at best, can only inch forward legal change. Whereas Parliament is much more dynamic. They can rewrite laws, totally change legal systems and revolutionise structures. And better yet, voting, writing to your local member and taking part in the political discourse is free.

That’s why it is important that all of us not just cast a ballot, but engage in politics and advocate for social justice. We are all part of our society, and need to work to ensure that political policy, legislative direction, legal rules, and ultimately society, work toward social justice, and that justice is not something available only to those who can afford to pay, and wait for incremental legal change.

Joshua Gani is a Policy and Advocacy Advisor for The Salvation Army Australia

*The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of The Salvation Army


[1] https://www.aclu.org/other/tribute-legacy-ruth-bader-ginsburg-and-wrp-staff

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