What is justice? What’s our current concept of “justice”? We’ve advocated towards the development of rules that all of us – in theory – should follow, and we’ve named it “justice system.” A Roman jurist named Ulpian defined it two millenniums ago as “the constant and perpetual desire to give to everyone that to which they are entitled.” This quote is still used today in law school, so I’ve decided to deconstruct it.
Let’s start with the last part: “To which they are entitled”
Here come the first questions: How do we define what we are entitled to? Who decides what we are entitled to? These are questions as old as human societies themselves that have created deities, systems, and ideologies.
Ulpian didn’t know that hundreds of years after his passing, something called WWII would happen and would force the world to agree on the way to prevent it from happening again. A group of countries got together and decided what we were entitled to. They called it the Universal Declaration of Human Rights and committed to fulfilling them.
The importance of willingness
Now, being entitled to it doesn’t mean it’s a sure thing. For that, Ulpian says, we also need the desire to give it to people, and saying is not doing. Willingness is another element we must add to the formula. It can be hard to find: Relying on someone’s will immediately builds a hierarchic power dynamic, imprisoning people in need in a perfect scenario for corruption or oversight and reinforcing inequality and oppression.
Consistency and persistence
For Ulpian, justice means a constant effort sustained over time, so one single action would not be enough. Under this triad, according to Ulpian, is where justice exists.
Based on this, we created the justice system. A system meant to protect us, to be fair, and mediate our conflicts. This system, that’s supposed to be unbiased, open, and welcoming throughout the centuries, has been steadily oppressive. We keep forgetting this system was created for and by a certain type of men who were considered to be the description of what “society” was, and, even when we’ve tried to open it up as our concept of society has become wider, its true beginnings linger. This is what happens with any human system: It’s going to be flawed.
And the problem is not in the flaws but in not recognizing them. What we have built to gain justice ends with no will to give people what they’re entitled to, or not continuously, or, worse and more frequently, with the will to give what they’re entitled to only to certain groups.
The problem of punishment
It is not a secret that the justice system is patriarchal. And it has failed us, over and over. But, knowing that, we still employ it when it comes to our practices of building and assuring justice.
Promoting punitivism, as better explained by the Injusta Justicia campaign, has become a common practice for the defense of those whose rights are being violated, creating laws around their bodies supposedly for protection but still inside patriarchal systems, which ends up institutionalizing oppressions that support and reinforce intersectional inequality structures based on race, ethnics, class, sexuality, age, health, religion, etc.
The justice system has not stopped or reduced the impunity surrounding these violations, and sometimes it even supports it. People have fought hard to implement laws that criminalize human rights violations. Still, when we do that, frequently, structural problems that allow those violations are set aside and, sometimes, are even defended as rights themselves. In these situations, the justice system is anything but fair.
Every time we focus on prosecution, we step away from reparation and prevention, and worse, our intervention might be coming in too late. Even when it works as it’s stated, incarcerating people will not fix the violence experienced: is it more or less fair to keep someone alive, or is it sending someone to jail for killing?
A different approach
Relying only on laws alone to avoid and restrain human rights violations is not only a paradox, but it’s also not working.
Here’s where we could ask ourselves: What are the limitations of the systems we already have? Is the justice system fair? Who establishes it? Where’s the separation between asking the State to not rule over our bodies but also seek protection from it? Why do we seek protection from institutions that have systematically hurt us?
And the most important question: Are there other ways to build justice that don’t involve these systems?
To answer that, we could start by listening more closely to the people whose rights are being violated and actually hearing what justice means to them and what their needs are, including approachable and friendly mechanisms that bring justice and repair on their own terms. We could be building more efficient ways to approach inequalities, discrimination, oppression, and other negative circumstances that create favorable conditions for those violations to occur. We could see what happens when we estrange from punishment and move towards empathy. We could trust their judgment, work amongst them, highlight their ideas and prioritize the participation of their communities to redefine their conditions.
Frequently, justice is far away from the laws. Many times, justice looks like mental health, safe spaces, attention, being heard, loving reinsertions to society, new opportunities, and other elements that the justice system can’t provide. And the most important characteristic is that justice is not a one-size-fits-all. Justice might look way different for you and me, and it should.
We could try to start reinterpreting what justice means, how the society we want to live in looks like, discuss these topics and build new justice systems and ways to get what we’re entitled to, continuously and perpetually.
How does justice look to you?