Justice in the Risk Society: Challenging and Re-affirming 'Justice' in Late Modernity

278 Pages·2003·0.88 MB·English

by  Professor Barbara Hudson

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,
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writing from the Publishers.
SAGE Publications Ltd
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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