Justice as caring

Demotherapeia, on whatever level it is implemented, does not come with a process for creating binding, universally applicable outcomes. That is, there is no process whereby, at the end of a meeting, the participants are all bound to a particular course of action or a commitment to a particular set of principles or behaviour. This has a signficant impact on the concept of justice, which usually requires these sorts of rules. The alternative is the particularisation of justice, which leads to something I call "justice as caring", and which I'll attempt to describe here.

No procedural justice or uniform law

There are many theories of justice, and it is probably beyond me to examine them all thoroughly here. But I'll try to give a brief description of how I see most modern theories of justice apply. I'll also note that I'm here interested in justice as a democratic justice system might be interested in applying it, rather than some of the broader theories of justice such as economic or social justice.

I think modern systems of justice have three basic parts: there is a "right" way to behave, it is justifiable to apply consequences in certain cases when people don't behave the "right" way, and the consequences must be applied impartially.

How do we know what the right ways to behave are? Democratic models generally have two approaches: whatever the people collectively decide through the appropriate processes (such as elections), and whatever is consistent with the principles of democracy (such as restrictions on government power over citizens). That is, we agree that the law is the law when lawmakers follow democratic principles in making it. The same applies for the choice of consequences for "wrong" behaviour.

There's some clear benefits to this system. The first is that the law is (to a greater or lesser extent), written down and accessible. People can ensure they act the "right" way and avoid bad consequences because they can know what the law is. There are certainly times and contexts where the law is too obscure or complex for this to be an easy task, but the principle is straightforward, even if the application varies.

People who transgress the law can have consequences applied, and there can be some general agreement that the consequences are justified because they, too, were made in the appropriate democratic manner. (And if there is disagreement, the appropriate democratic procedure is the way to correct them.)

The law is fair - that is, just - because it equally applies to everyone, and there is no picking and choosing to whom the law applies.

For example, people could reliably know that murder is a "wrong" behaviour, justify that it is okay to lock up murderers for the safety of society, and apply these consequences to everyone who murders, regardless of whether or not they are a politician or a pauper. Similarly, a private leisure centre could have a rule that there is no running by the pool, which allows everyone to know how to behave safely by a pool, have a justifiable consequence that people caught running will be ejected from the centre, and apply the rule regardless of whether the person is the owner's son or not.

Demotherapeia doesn't have binding collective decisions. There is, therefore, no set of well-recognised rules that define "right" behaviour and allow people to predictably act in the "right" manner. There are also no defined consequences for "wrong" behaviour. Without either of these, it is not clear that impartiality can even apply. The result is that demotherapeia does not have the prerequisites to establish a traditional theory of justice.

Particularisation of justice

Of course, part of the point of demotherapeia is the deconstruction of discourses, and a scepticism of univerally applicable standards or rules. Discourse deconstruction generally requires people to be moving towards particularisation, where universally applicable rules are broken down and instead each context is examined. Demotherapeian practice would, in general, aim to critique the type of justice that I have just described above.

The alternative is the particularisation of justice, where, instead of universally applicable rules, there is a case by case examination of things. The big question is then, In what manner might this be considered justice? I've given a relatively clear description of a democratic theory of justice above, and if demotherapeia has an alternative type of justice, how can it be described?

There are two places to look. The first is the existing justice system. In this system there are already areas of discretion and areas of contextual application. For example, if a person has committed a crime, there may be a look for mitigating circumstances, the context of the crime, the person's character, and their personal context - both in terms of the causes, and in terms of the support that they could receive from their community or family afterwards. Some of these are explicitly written down in law, and others are part of the discretionary ability of judges in determining sentencing (though usually not in considering whether the law was actually broken). There is some recognition already, then, that justice often requires particularisation.

The second is moral particuarism, a moral philosophy that, roughly, states that there are no moral rules that are universally applicable. There are many different versions. For example, it might be that no rule can be sufficiently descriptive and complete to apply to every particular circumstance, and so an examination of the circumstances is always going to be relevant to moral considerations. Another is that humans will always have a limit to their ability to understand and apply rules and engage with the particulars of some circumstance. Imagine, for example, that there is a moral rule that is written down exhaustively, but it takes four quadrillion pages to completely write it down. Imagine, too, that there is a description of the circumstance we want to apply the rule to, but that this description also takes four quadrillion pages to completely describe. No one will be able to completely apply the rule to the circumstance. Whatever rule we think we are applying, it is going to be some simplification. Thus, we need to be wary and flexible about applying rules to circumstances, and cannot completely trust the rule.

One way of thinking about this is to commpare two different approaches. Let's say we're given a moral rule, and we come across a circumstance where we may want to apply it. Someone who is committed to the rule will apply the rule, and simply assume that it works for the given circumstance. A moral particularist, however, will assess how the rule applies and then consider whether the rule needs some added detail to account for the particulars of the circumstance. That is, moral particularists, even when they have a set of moral rules they adhere to, are ready to assess and update those rules as they come across different circumstances rather than assume they are infallible, and that readiness and assessment are requirements of applying the rule at all.

Now, someone who adheres strictly to rules might ask, "How do you assess and update the rule if you don't already have some meta-rule to assess it against?" This is a good question. But the particularist answer is likely to be that everyone is doing this all the time - consciously or not - whenever they interpret and apply a rule, or decide to adopt a rule that they are going to adhere to. It is just that the moral particularist is very aware of this and puts it front and centre.

This is a pretty normal process for democracy in general. People collectively decide upon the law, but then those same people can assess its implementation, its application to certain circumstances, feel unsatisfied with the law as a practice, and then vote to change it. This could be the case even if everyone was in agreement at the initial vote and at the final vote - it doesn't have to be an outcome of groups who disagree or demographic change over time.

Justice as caring

With this in mind, one way of conceiving of the particularisation of justice is "justice as caring". This approach to justice doesn't consider "right" or "wrong" action, but involves asking, "What care do the people in this circumstance need?"

The idea is that rather than imposing some set of universal standards or rules upon others, we contextually check what sort of care we think they need and, importantly, what sort of care they think they need. The reason I chose the phrase "democracy as therapy" is because I think it is fruitful to draw from concepts of therapy, such as participants communicating their needs and concepts of care and health, other participants acknowledging and working with, rather than against, those concepts, and self-reflective and voluntary participation. Justice is about checking in with others, listening, understanding their perspective, and understanding how they define their needs. Of course, the other component is that anyone providing care also needs to do so voluntarily, and their own concepts of care (including self-care) need to be part of the context - it is not about prioritising one party or the other.

In fact, justice as caring also dissolves the binary between perpetrator and victim (as well as between involved and bystander), by not singling each out for different prescriptions of care. It is likely that a perpetrator will need fundamentally different care to a victim, but in order to reach a harmonious outcome the care of all parties needs to be considered. And this means that it is not necessarily required to determine if someone has done something "wrong" or not. This removes the ability for "right" and "wrong" to be constructs used to justify the use of power over others, which is another part of deconstructing concepts of justice.

Instead, we need only consider what care each party needs. Consider someone who has assaulted another person. Likely, the assaulted person will want some sort of care for any injuries, distress, or loss of material goods. But what about the offender? They will probably need care related to their violent outburst, such as what caused it and how they can better control it. It is likely, also, that their actions can be placed into a context where they are willing to accept that care, even if they felt their emotions were appropriate and their violence justified. And this can be achieved without having to make some clear determination that the assault was "wrong". Instead, it is likely that the offender can be convinced that the circumstances that led to their behaviour can made better, that there are other ways to achieve their goal, and that even if their emotions were appropriate and their violence justified their emotions could be better managed and an alternative path pursued that is also justified. In general, most people will think that their violence is justified (in which case the approaches are to deconstruct it or discuss how it can fit into the context of broader society), or unjustified, in which case they know they need some level of care.

This is well-aligned, I think, with the concept of justice that is consistent with a non-reciprocal gifting economy, and it's for this reason that I've bundled the two concepts - the particularisation of justice and non-reciprocal justice - together under the term "justice as caring".