The Dark Side of Justice
In Trinidad and Tobago, improving procedural fairness may hide injustices rather than resolve them
by Dylan Kerrigan on
Elizabeth Anscombe, the author of Moral Philosophy (1958) said, and I paraphrase, I have no idea how to define justice, but for injustice, its "defect," I can provide a long list of examples.
No doubt many of us can agree with her. For example, it's difficult to say for certain when justice has been achieved or even what is justice: after all, does a jail sentence make up for a murder? Compensation erase a life changing injury? Or reparations make the legacies of slavery and colonialism more palatable?
On the other side however, it's easy enough to point to examples of injustice. Being robbed of an opportunity, deprived of your human rights, or discriminated against, are all cases of injustice everyone is familiar with.
For anthropologists the question of "what is justice?" is frequently at the heart of much of the research we do. Most often our idea of justice refers to social and economic injustice. But it also of course covers the cultural relativity and contextual nature of justice because what justice means, varies from culture to culture, and place to place.
The anthropological study of justice also throws up what Fassin (2014) describes as a "moral dilemma." Is our job as social scientists to better understand social life or should we also be improving it for other people? And who decides what is or is not improvement?
Over the last two years I've had the exciting research experience of working with the Judicial Education Institute of Trinidad and Tobago (JEITT). Together we have been working on collecting data to better understand three issues that are currently important in Trinidad and Tobago (T&T).
One of them is the implicit bias of local Judges and Magistrates, which is important to understand because judges' personal biases influence how justice is carried out. The second is the extent to which the public trust the judiciary. And the third is the culturally relative localisation of the tenants of Procedural Fairness, a North American concept, designed to ensure a person's experience of the court process from beginning to end is a fair one.
The data we have collected is large. It includes Rapid Assessment Ethnography by three different teams of researchers (who I got to train), of 54 court users across 12 different magistrates courts and 24 users of the High Court in the capital Port of Spain, visits and observation at 20 magistrates courts in Trinidad and Tobago (T&T), thick descriptions of seven magistrates courts, multiple observational visits to the Court of Appeal, 'continuing education workshops' (CES) with Judges and Magistrates themselves in 2016, and 2017, photography of courts up and down the country, follow up phone interviews with court users, thematic analysis, and on-going survey research.
There are lots of outputs and publications to come, but one thing the data demonstrates is that for many users of the lower Court system today, justice is often experienced as a form of injustice, expulsion, and exclusion.
In fact, little has changed in recent times. The entrenchment of injustice in T&T has long been commented on by a parade of local historians and calypso musicians, who use texts and songs to document examples of injustice and critique the system.
Now, in the spirit of Fassin's moral dilemma, the data we collected has already been used to educate Judges and Magistrates about their potential biases. Our hope is that actions taken on individual, group, and institutional levels can help to try and minimise biases and reduce cases of injustice.
Four elements of procedural fairness
We also undertook a thematic analysis of 78 qualitative interviews plus other data points to understand the process of what social psychologist Tom Tyler calls "procedural fairness." Based on over twenty years research on North American courts and the Police, Tyler argued that procedural justice is:
"the most powerful explanatory concept for why people obey rules that restrict their behavior in ways they would otherwise find unacceptable" (Tomkins 2008, 1).
Tyler explains that court users only view court procedures to be fair and legitimate if they encompass four factors.
The first is voice. People attending court expect to be able to express their viewpoint.
The second is neutrality. Court proceedings are only fair if they include consistently applied legal principles, unbiased decision markers, and "transparency" about how decisions are made.
The third is respectful treatment. Individual court users expect to be treated with dignity and have their rights clearly protected.
And the fourth is trustworthy authorities. That means authorities that are benevolent, caring, and sincerely trying to help the litigants. This trust is garnered by listening to individuals and by explaining or justifying decisions that address the litigants' needs.
One problem with Tyler's definition of procedural fairness is that it's based on research conducted in the U.S. But our research was in T&T, a vastly different country, culture, and context. Does procedural fairness mean the same to Trinbagonians as it does to U.S. court users?
Procedural fairness in T&T
Our data suggest that Tyler's four expectations of Procedural Fairness in the US case also hold (with small amendments) in Trinbagonian society. However, these were not the sole expectations we found.
Trinbagonian court users had an additional five expectations for procedural fairness: understanding, accountability, availability of amenities, access to information, and inclusivity. These were linked to local socio-cultural realities and historical legacies, such as a long-standing and structural mistrust of authorities.
Overall, then, the knowledge produced from our long-term research project identified 9 primary elements that impact and localised Procedural Fairness to T&T. This suggests that in T&T, to improve the perception court users have of being treated fairly by the court system and process, we need to improve their experiences of these 9 elements:
- Respectful Treatment
- Trustworthy Authorities
- Availability of Amenities
- Access to Information
Now, this production of knowledge sounds on the surface positive and progressive. But if court users' perceptions of procedural fairness improve, they may well become more compliant in their interactions with powerful court agents, such as judges or administrators.
This sounds great, but is it progress and justice, or will it create new kinds of injustice?
The dark side of justice
In their write-up of ethnographic observations at Red Hook community court in Brooklyn, Bornstein et al. (2016) note:
"procedural justice scholars, mostly from law and psychology, have emphasized the positive benefits of fair treatment as a way of promoting harmony in contexts of different interests and scarcity, but they have been reluctant to explore 'the darker side of the fair process phenomenon.'"
Fair process might sound beneficial to all, but it can indeed have a dark side. Critics point out that procedural justice is at heart a form of false consciousness and cultural hegemony designed to make the less powerful consent and comply with the vision of the world of the powerful. This can cause people to overlook long-standing issues of injustice, inequality, and substantial unfair or biased treatment.
Fair procedure, in other words, might make people feel better dealing with authorities, but it does little to structurally transform uneven social relations in society.
Is this justice or simply business as usual? As Bornstein and colleagues lament, this is a "legitimacy trap" that holds that "social order and rule of law should be maintained and that compliance should be improved even if that may not be best for everyone."
In other words, improving procedural fairness might improve compliance with the legal system, but it might do little to improve overall justice.
Historians of 19th century Trinidad remind us that the police were a military force, magistrates were biased and incompetent, and judges worked for elite interests. Such colonial situations forced civilians to adapt to and live with injustices.
Even today, people learn to live with injustices via socialisation, the structure of the society they live in, the social relations they adapt to, and the political economy and social organisation that produces injustice. Calypsonians of the 20th century, and more recently our two-year project in the 21st century, also suggest that Justice in T&T has been, and still is today, experienced by many as a process of alienation from Justice.
Thus what we have found is not new, but rather a body of evidence to support the arguments of those who came before us, and support ideas around the coloniality of power thesis.
Today, rather than simply structural racism and colour prejudice, patterns of injustice have shifted to include other forms of prejudice, bias, and difference.
In ex-colonies, the context of the initial inequality of the society is often removed, but the problem remains. This is why, when adopting and importing Euro-American ideas of court reform, we need to understand the local context and adapt our justice system to take account of local characteristics.
At the same time, it is important that we recognise the potential pitfalls of complicity with the powerful and continue to work, in my opinion, to address Fassin's two-prong moral dilemma. Recognition, understanding, and the improvement of complex and frustrating court process are of course important, but it's not enough to stop there. Structural change is also needed.
Improving procedural fairness might improve compliance with the legal system, but it might do little to improve overall justice.