What can victims tell us about justice? Thoughts from Judith Shklar

Victims are frequently brought into public debates about criminal justice policies. This occurs in domestic systems (such as recent changes to Canada’s prostitution laws) and in international criminal justice (such as ongoing debates about the role of victims in trials at the International Criminal Court). Victims are sometimes treated as having moral authority to demand particular policies. However, many experts and policymakers believe that victims’ perspectives should be heavily discounted. They often assume that victims lack generalizable knowledge, and that their desire for vengeance or compensation will lead to unfair judgments or bad policies. Victims therefore tend to be treated in one of two ways – either as privileged spokespersons for justice, or as people who deserve our sympathy but whose views on justice policies should be largely ignored.

I’m currently writing a paper on how researchers and policymakers should listen to and engage victims. Some of the most helpful thoughts that I’ve encountered on the topic come from Judith Shklar’s 1990 book The Faces of Injustice (originally a Storrs Lecture at Yale Law School). I’ll return to those shortly. But first, a word on “victims.”

Kelly Porth, Board Chair at Pivot Legal Society and former sex worker, arguing against the Canadian government’s proposed bill criminalizing prostitution. Image from Pivot editorial.

The term, “victims,” is a loaded one. For some, it is associated with powerlessness or pity and should never be used. While I agree that those negative connotations often exist, I think “victim” is an important social role, and one that should be made empowering rather than stigmatized. After all, most of us will be victims of injustice at some point. To be considered a victim can mean that certain people, or society at large, owe a debt to us for egregious actions against us. Many of the participants in my focus group research in Kenya and Uganda, who had all suffered great violence or injustice, considered themselves “victims,” and saw it as an accurate and somewhat desirable label because of the social obligations it acknowledges. (For some of my reflections on victim participation and the International Criminal Court, see here and here.) Like them, I think it’s important to acknowledge the possibility that victim status is morally signifiant and politically actionable, while at the same time not suggesting that it is the entirety of people’s identity.

In her book, Shklar argues that citizens and political theorists ought to pay serious attention to victims’ perspectives on injustice. She claims that victims’ “sense of injustice” can provide a necessary corrective to existing theories, laws and institutions of justice. She clarifies that our conventional understanding of justice, or “normal justice,” is a “body of rules and basic principles governing the distribution of benefits and burdens within a community, and it demands the establishment of effective and impartial institutions to guarantee the enforcement of these basic rules and principles” (p. 17). This rule-bound, generalized approach is necessary for justice to be institutionalized as laws and organizational practices. But as a result, normal justice frequently has blind spots, gaps and unintended consequences.

Victims’ experiences and perceptions of injustice can reveal these deficits. The shortcomings of normal justice will be glaring to victims, but often not to other members of society. In particular, Shklar argues, those people who are powerful are most likely to fail to recognize deficits in justice, because existing rules are amenable to the powerful and may often benefit them.

To illustrate the gap between victims’ senses of injustice and the existing rules of justice, Shklar points to injustices that had long been dismissed as mere “misfortunes”. These include the treatment of slaves, indigenous people and women. Policymakers and other public figures frequently attributed their abuse, suffering and marginalization to natural laws or unavoidable circumstances—such as the superiority of certain races or the frailty of women’s bodies. For instance, she quotes US Senator Thomas Hunt Benton, who in 1846 excused the genocide of indigenous people by claiming, “I cannot murmur at what seems to be the effect of divine law…Civilization, or extinction, has been the fate of all people who have found themselves in the track of the advancing Whites.” Arguments such as this one deny oppressed groups the opportunity to claim that existing rules of justice have been violated, but people’s experiences of injustice inspire resistance and reform against those rules.

As Shklar points out, the line between injustice and misfortune can often be blurry. Earthquakes and epidemics are “natural” events that can be called misfortunes. But once we recognize that buildings can be constructed to protect their occupants, and that diseases can be prevented or cured, then our suffering from earthquakes and epidemics can be seen as injustices. Similarly, if we come to recognize that certain cultural or gender identities are not the result of lack of development or sickness, then we can see their suppression as an injustice. The line between injustice and misfortune therefore changes as technologies, cultures and political relations change.

Building on Shklar’s analysis, I would suggest there are three key contributions that victims’ voices can make to debates about justice.

The first contribution is epistemic. The social positions and experiences of those who face injustice provide them with empirical and normative insights that other people may lack, particularly those people who are powerful or comfortable. The epistemic virtues of marginalized groups has been recognized by many thinkers, including feminists (e.g. Donna Haraway, Iris Marion Young), pragmatists (e.g. John Dewey, Hilary Putnam) and science and technology scholars (e.g. Sandra Harding, Trevor Pinch and Harry Collins).

The second contribution that victims can make, which Shklar does not clearly articulate but which clearly inhabits her text, is one of psychological motivation. Those who do not face an injustice may be unaware of it, may not recognize its seriousness, or may not treat it with sufficient urgency. Classic examples are the long acceptance of sexual harassment, bullying, and other forms of abuse that were dismissed as mere bad behavior rather than acts to be addressed by laws and institutions. Victims’ voices can prompt people to pay attention to issues that they would otherwise ignore, and victims of these experiences are often at the forefront of activism.

Third, victims’ perspectives can shed light on the political construction of justice. Their expressions of injustice can thus help push dominant understandings, rules and institutions of justice into the domain of political contestation. Doing so can strip rules of justice of their aura of inevitability or givenness. Similarly, Foucault argued that we can analyze power relations by taking “the forms of resistance against different forms of power as a starting point” and using “this resistance as a chemical catalyst so as to bring to light power relations, locate their position, find out their point of application and the methods used” (p. 329 in “The Subject and Power,” Essential Works of Foucault: Power).

Protesters before Canada’s Supreme Court in June 2013, demanding greater criminalization of buying and selling sex. Image from CBC.

Interestingly, Shklar argues that paying attention to victims’ sense of injustice is a necessary part of democratic politics. Democracy is grounded in moral equality, so the lives of all citizens matter and citizens should be able to convert injustice into political agency. She thus writes that “democracy does not silence the voice of the aggrieved and accepts expressions of felt injustice as a mandate for change, while most other regimes resort to repression” (p. 85).

Shklar concludes that “[t]he voices of victims must always be heard first, not only to find out whether officially recognized social expectations have been denied, but also to attend to their interpretations of the situation” (p. 81). But this does not mean that victims have the final word on issues of justice. Victims, like other citizens, have limitations in their knowledge and experiences. Furthermore, Shklar notes that victims can have powerful motivations toward personal revenge, causing them to ignore both the wider ramifications of vengeance and the problem of generalizing acts of revenge into a policy. The insights and the social status of victims can therefore be used in harmful ways – to oneself and to others – as well as beneficial ones.

Shklar touches on but does not extend the institutional implications of her argument. How can we build the voices of victims into public debates, so they can contribute to the right decision-making processes at the right time? How do we institutionalize exchanges that promote what James Tully calls “reciprocal elucidation,” making it possible for scholars and policy-makers to engage victims and other citizens in ways that enhance the understanding of all parties? These are questions I’m currently puzzling over.