Justice, or How Many Angels Can Dance on the Head of a Pin?

By: Kathryn E Thomson, PhD Candidate (UVic Law)

When I first began to study access to justice, I embarked upon an exercise to deconstruct the phrase and break it into the components of “access” and “justice”.   I focused, first, on “justice” based on the notion that I needed to understand justice before examining what “access” to it should or could look like.  Those who have studied philosophy and legal theory may chuckle at the naivety of hoping to find a definition of justice as that question is only marginally easier to answer than how many angels can dance on the head of a pin.  Although this became clear to me quite quickly, I still find myself going back to my initial question from time-to-time.  What do we mean by justice?

It is important to examine the question of justice as it is central to creating the path to a functioning justice system.  Further, it is hard to articulate clearly the principles of access in the absence of some understanding of justice.   This, at least in part, is one reason that there is no common agreement on what is meant by “access to justice”. 

In an attempt to shed light on the meaning of justice, I asked friends their thoughts on it.  The responses were interesting as many could identify what justice was “not” but paused when trying to define what it “was”.   It seems we can recognize the absence of justice, particularly when the absence has a personal impact on us, but we struggle with defining its parameters and scope. 

Many have written at length about justice and a blog is not the forum to discuss those thoughts.  Most of this writing is academic and, to some, a dense read.  However, debate around the meaning of justice is not limited to the academy.  The recent Jian Ghomeshi trial resulted in a very public examination of justice.   Animated discussions could be heard everywhere and many of us expressed an opinion.   Those opinions often centred on the locus of justice.  For whom was justice to serve in this case? 

I will not attempt to comment on whether the acquittal was right or wrong in my view.   Instead, I will focus on the disparate opinions on justice that were expressed.   Those that took the view that justice was served by the acquittal of Ghomeshi pointed to the strict, letter of the law and the failure of the prosecutors to demonstrate guilt beyond a reasonable doubt.  On the side of those who felt that justice was served, the following comment was made: 

"I think the criminal justice system worked perfectly,' said Russell Silverstein, a Toronto-based criminal defence lawyer. "The trial judge did a masterful job of analyzing the evidence, identifying the weaknesses in the prosecution's case and coming to the right decision."[1]

Others took the view that justice was not served by the acquittal.  They argued that the true experience of victims of sexual assault was not properly considered; the women were not supported and should have been believed.  On the side of those who felt the system let down the complainants and justice was denied, CBC reported:

“Outraged shouts of ‘I believe survivors’ reverberated off the courthouse steps and in more than 10,000 posts online.”[2]

Some critics of the Ghomeshi case felt that “the trial, shines a spotlight on everything that’s wrong with a system designed to find justice in such cases.”[3]

“The associate dean of the faculty of law at the University of Calgary, Alice Woolley, says while the decision in the Ghomeshi trial was not surprising …“Saying it’s not surprising is not necessarily the same as saying that it was fair or just,” Woolley said.” [4]

If you work in the justice system, you will not be surprised by the notion that justice and fairness can, at times, lead to different results.  This, however, was not the expectation of many observers of the trial.  And these expressions of public sentiment of justice are interesting in the context of access to justice as they demonstrate two things:

  1. many expect the justice system to judge moral guilt or innocence (and we, of course, can dance on a pin defining “moral”);
  2.  the existence or otherwise of justice in any situation depends on your lens or position in relation to the issue.

This last point is important to keep in mind.  Your justice may not be my justice.  Perhaps, in fact, they never may be the same thing.   Thus, attempting to find a common definition or understanding of justice may be a mug’s game. 

So, where does this leave us if there is no objective meaning of justice?  While reading on existentialism, I came upon a comment that suggested to me a different approach to my search for a meaning: “disregard intellectual clutter, pay attention to things and let them reveal themselves to you.”[5]

For me, this comment offers freedom from the struggle to define the undefinable and to dance on a pin searching for an answer.  It allows me to accept justice as part of a process and justice as a subjective experience – an experience that may depend on your lens or position in relation to the issue.   Paying attention to public discourse on justice reveals things about justice. 

Further, this comment also allows me to step away from bifurcating “access to justice” and to conceive of it as a whole term.   The focus then returns, as it should, to the individual.  If justice is part of a process and a subjective experience, access to justice should create opportunity and capability for individuals to seek justice.  This requires understanding the opportunities individuals need to participate and working to create those opportunities.  In other words, access to justice is real opportunity to achieve justice on an individual’s own terms.   

This doesn’t answer the question of “what is justice”.  It should, however, give a little more scope to what “access to justice” can mean as a whole concept. 

 

[1] http://www.cbc.ca/news/canada/toronto/jian-ghomeshi-lawyers-judge-decision-1.3506613 (Ghomeshi trial judge praised by lawyers for “right decision”) posted March 25, 2016.

[2] http://www.cbc.ca/news/canada/toronto/jian-ghomeshi-judge-ruling-1.3504250 (Jian Ghomeshi trial’s not guilty decision triggers outrage, march to police headquarter”) posted March 24, 2016.

[3] http://www.cbc.ca/news/canada/toronto/jian-ghomeshi-judge-ruling-1.3504250 (Jian Ghomeshi trial’s not guilty decision triggers outrage, march to police headquarter”) posted March 24, 2016.

[4] http://www.cbc.ca/news/canada/toronto/ghomeshi-decision-legal-debate-1.3513011 posted March 30, 2016.

[5] Sarah Bakewell, At the Existentialist Café: Freedom, Being and Apricot Cocktails (Canada: Knopf, 2016) at 3.