Justice refers to the constant and perpetual disposition of legal matters or disputes to render every person his or her due. The concept of justice traces its origin to the Greek language. The Greek work “dike” corresponds to the idea of staying in one’s assigned place or role. The Greek philosophers Plato and Aristotle developed definitions of justice. Plato believed that justice means maintaining society’s order with each person performing his natural role. Aristotle described justice in terms of proportion and equality. Aristotle believed that justice means treating individuals with fairness, and it is a matter of distributing goods in their right proportion.
Although law and justice are related concepts, they have distinct definitions. Law, in its generic sense, is a body of rules or action or conduct prescribed by a controlling authority and having binding legal force. Justice, on the other hand, emphasizes fairness and rights. It implies the moral and impartial treatment of all persons, especially by the legal system of a society. However, conceptions of justice may come into conflict with the legal system of a society. For example, legal scholars as well as social scientists now consider laws that supported slavery as unjust laws. Anthropologists and legal scholars also debate justice from the points of view of moral relativism and moral objectivism. Moral relativists argue that justice has different meanings in different societies and that what one society considers unjust may not have that meaning in another society. Therefore, the anthropologist must seek to understand the meaning of justice in a particular society. Moral objectivists argue that there are standards of justice that can be used to judge the treatment of persons in every society. While the traditional training of anthropologists criticized value-based anthropological research, more recently the field of anthropology encompasses many anthropologists who espouse a moral objectivist position and who criticize the treatment of persons in the society they are studying from a perspective of social justice.
Scholars also distinguish three major types of justice: distributive, commutative, and corrective. Distributive justice is concerned with analysis of the distribution of the benefits and burdens of society. Most discussions of distributive justice concern the measurements that societies use to allocate society’s resources, such as need, rank, agreements, or merit. Commutative justice deals with how to achieve a fair resolution between individuals when people believe they have been wronged. The purpose of commutative justice is to render to a person what belongs to that person in such a way that no one gains by another’s losses. Corrective justice is concerned with how people should be punished for wrongdoing. It seeks to define what is considered fair punishment and what is considered a fair process for determining guilt before imposing punishment.
Anthropologists typically examine justice from one of three paradigms: functionalism, conflict, or pluralism. The functionalist paradigm characterizes society as a community consisting of like-minded individuals. Functionalists view law as a unifying force in society because it is a tool for resolving disputes and achieving justice. The conflict perspective relies on a Marxist conception of power, characterizing law as a tool of the powerful in society who want to maintain the status quo. Conflict theorists argue that the powerful write laws for their own benefit, resulting in the existing system of social inequality containing many laws that are unjust because they oppress the poor and other marginalized groups. The pluralistic paradigm seeks to provide a more complex understanding of justice issues in a society. Pluralists emphasize that justice is defined by interest groups in society, but these interest groups can change over time. This perspective also argues that interest groups may hold diverse ideas of justice that may be contradictory to one another.
Early anthropological studies of justice were largely conducted in non-Western societies and emphasized discovering the rules used to solve disputes. For example, Bronislaw Malinowski (1884-1942), studied the Trobriand Islands of Melanesia where he applied and discovered the importance of reciprocity, an exchange system based on mutual services between individuals and groups, as the basis for law, and consequently for social order. Malinowski posited that the obligations associated with reciprocity have the social function of safe-guarding the continuity and adequacy of mutual services. He concluded that the obligations associated with reciprocity are the primary social bonds in Trobriand society.
In the 1970s, in addition to examining the rules used to resolve disputes, anthropologists also studied the processes by which disputes are resolved within the sociocultural context of a community. Through such observations, anthropologists learned that people often managed their legal disputes and arrived at a just outcome through a system of informal, negotiated settlements among parties rather than court-centered approaches. For example, Laura Nader used the concept “harmony ideology” to interpret her work on dispute resolution in a Mexican-Zapote mountain village. Nader argued that the reason people presented themselves as resolving all disputes harmoniously was part of a political strategy to keep colonial authorities from meddling in village affairs.
In the 1980s, anthropologists continued to study justice from the perspective of dispute resolution; however, this research began to emphasize a concern with issues of stratification and power. Anthropologists also expanded their scope of inquiry to include such concerns as the field of human rights, prisoners, migrants, refugees, and other issues. As they expanded their scope of inquiry, anthropologists examined how law as a system of meaning presents a social construction of the world as just; that is, law, as an ideology, is embedded in the cultural meanings of a society. More recently, this approach frequently examines justice issues within the context of globalization. For example, some anthropologists report persecutions and other atrocities of peoples. This includes analyzing the tension between local formulation of human rights and its global counterpart; i.e. the ideology of international human rights. In addition, some anthropologists will endorse a particular definition of human rights and they may identify the kind of political systems that can provide these rights. These anthropologists hope to contribute to the social construction of a just world.
- Bohannan, P. (1957). Justice and law among the Tiv. London: Oxford University Press.
- Conley, J. M., & O’Barr, W. M. (1998). Just words: Law language and power. Chicago: University of Chicago Press.
- Likosky, M. (Ed.). (2002). Transnational legal processes: Globalization and power disparities. New York: Butterworth.
- Malinowski, B. (1976). Crime and custom in savage society. Totowa, NJ: Littlefield, Adams & Co.
- Moore, S. F. (1978). Law as process: An anthropological approach. London: Routledge & Kegan Paul.
- Nader, L. (1990). Harmony ideology: Justice and control in a Zapotec mountain village. Stanford, CA: Stanford University Press.
- Rosen, L. (1989). The anthropology of justice: Law as culture in Islamic society. Cambridge, MA: Cambridge University Press.
- Sack, P., & Aleck, J. (Eds.). (1992). Law and anthropology. New York: New York University Press.
- Starr, J., & Collier, J. F. (Eds.). (1989). History and power in the study of law: New directions in legal anthropology. Ithaca, NY: Cornell University Press.