Michelle Maiese and Heidi Burgess
(Original written by Michelle Maiese and published July 2003; updated by Heidi Burgess in June 2013, and again in July, 2020.)
This post is also part of the
Justice is action in accordance with the requirements of some law. Whether these rules are grounded in human consensus or societal norms, they are supposed to ensure that all members of society receive fair treatment. Issues of justice arise in several different spheres and play a significant role in causing, perpetuating, and addressing conflict. Just institutions tend to instill a sense of stability, well-being, and satisfaction among society members, while perceived injustices can lead to dissatisfaction, rebellion, or revolution. Each of the different spheres expresses the principles of justice and fairness in its own way, resulting in different types and concepts of justice: distributive, procedural, retributive, and restorative. These types of justice have important implications for socio-economic, political, civil, and criminal justice at both the national and international level.
Distributive justice, or economic justice, is concerned with giving all members of society a "fair share" of the benefits and resources available. However, while everyone might agree that wealth should be distributed fairly, there is much disagreement about what counts as a "fair share." Some possible criteria of distribution are equity, equality, and need. (Equity means that one's rewards should be equal to one's contributions to a society, while "equality" means that everyone gets the same amount, regardless of their input. Distribution on the basis of need means that people who need more will get more, while people who need less will get less.) Fair allocation of resources, or distributive justice, is crucial to the stability of a society and the well-being of its members. Different people will define "fair" differently: some will say that fairness is equity; others equality; still others, need. When issues of distributive justice are inadequately addressed and the item to be distributed is highly valued, intractable conflicts frequently result. This was the essence of the conflicts playing out across Europe and in United States politics in 2012-2013--over taxes, deficits, "austerity programs," jobs, rights of labor, etc. It is part of the story about the racial conflicts which have taken a high profile in the summer of 2020, although procedural and retributive justice are also a large part of this conflict.
Procedural justice is concerned with making and implementing decisions according to fair processes that ensure "fair treatment." Rules must be impartially followed and consistently applied in order to generate an unbiased decision. Those carrying out the procedures should be neutral, and those directly affected by the decisions should have some voice or representation in the decision-making process. (See the essay on public participation.) If people believe procedures to be fair, they will be more likely to accept outcomes, even ones that they do not like. Implementing fair procedures is central to many dispute resolution procedures, including negotiation, mediation, arbitration, and adjudication.
Mark Amstutz, a professor at Wheaton College, finds fault with retributive approaches to justice because they do not pay sufficient attention to how individuals are to reconstruct their lives.
Retributive justice appeals to the notion of "just desert" -- the idea that people deserve to be treated in the same way they treat others. It is a retroactive approach that justifies punishment as a response to past injustice or wrongdoing. The central idea is that the offender has gained unfair advantage through his or her behavior, and that punishment will set this imbalance straight. In other words, those who do not play by the rules should be brought to justice and deserve to suffer penalties for their transgressions. The notion of deterrence also plays in here: the hope is that the punishment for committing a crime is large enough that people will not engage in illegal activities because the risk of punishment is too high. In addition to local, state, and national justice systems, retributive justice also plays a central role in international legal proceedings, responding to violations of international law, human rights, and war crimes.
However, because there is a tendency to slip from retributive justice to an emphasis on revenge, some suggest that restorative justice processes are more effective. While a retributive justice approach conceives of transgressions as crimes against the state or nation, restorative justice focuses on violations as crimes against individuals. It is concerned with healing victims' wounds, restoring offenders to law-abiding lives, and repairing harm done to interpersonal relationships and the community. Victims take an active role in directing the exchange that takes place, as well as defining the responsibilities and obligations of offenders. Offenders are encouraged to understand the harm they have caused their victims and take responsibility for it. Restorative justice aims to strengthen the community and prevent similar harms from happening in the future. At the national level, such processes are often carried out through victim-offender mediation programs, while at the international level restorative justice is often a matter of instituting truth and reconciliation commissions.
The word "justice" is being used a lot in the summer, usually in the phrase "Justice for George Floyd" or "Justice for Breonna Taylor" or "racial justice." But few people seem to be unpacking what the term "justice" means. It is hard to understand how defunding the police would bring justice to George Floyd or Breonna Taylor, although, some might argue it would mean their deaths were not in vain. But let's unpack the notion of justice in the context of this summer's events.
This article points out that there are four different types of justice: distributive (determining who gets what), procedural (determining how fairly people are treated), retributive (based on punishment for wrong-doing) and restorative (which tries to restore relationships to "rightness.") All four of these are relevant to the events of summer 2020, and more broadly to race relations in the United States and elsewhere.
Most of the focus, it seems, is on procedural justice. George Floyd and Breonna Taylor and many, many other Black people were treated much more harshly by the police (indeed, in these two cases infinitely more harshly as they were killed) than are typical whites when they encounter the police. While it is true that unarmed White people have also been shot, statistics show that such outcomes befall Blacks in grossly disproportionate ways compared to Whites. Similarly (though this is being talked about less), Blacks do worse throughout the entire justice process. They are apprehended more, they are put in jail more, kept there longer (being unable to make bail as easily as most Whites can) and they are convicted and receive longer sentences than do Whites. This is the very essence of procedural injustice, and it should be the focus of attention just as much as the narrower question of police shootings.
The focus, to a lesser extent, is on retributive justice, particularly whether and how the police officers that killed Floyd, Taylor, or others will be held accountable. Historically, police are seldom held accountable for excessive use of force. This is sometimes due to the notion of "qualified immunity" which holds that public officials cannot be held responsible for professional misconduct unless they violated "clearly established law." While one would think that shooting an unarmed civilian would be a violation of "clearly established law," in principle, in the past that has been very difficult to uphold in court, and most police have thus not been tried at all, or were acquitted when they were tried. (That said, there is an argument to be made that some accommodation ought to be made for law enforcement officers who are repeatedly sent into dangerous situations with almost no information about what, exactly, is happening and where they may be called upon to instantly decide how best to respond to potentially deadly threats. In the case of George Floyd, however, it seems very clear that the officer who killed Floyd was not being personally threatened, nor did he have to make an instantaneous decision.
On the other hand, as I discussed in the paragraph about procedural justice, retributive justice is alive and well when it comes to sentencing Blacks. They are much less likely than Whites to get off with easy plea bargains, and are likely to get harsher sentences with less opportunity for parole. So this, too is an issue that needs to be looked at and likely remedied.
The notion of distributive justice isn't being discussed as much this summer, but it certainly is a big part of the story of race in this country, and it is beginning to be talked about more. We just published a new case study on Beyond Intractability that looked at how reconciliation between Blacks and Whites was sabotaged during the post-Civil War "Reconstruction Era." The way released slaves were treated just after the war set them and our country as a whole on a course of distributive injustice no matter how you define it: equity, equality, or need.
There is no way to make things right with generations that have passed, but we certainly should look now at how we can start to make things right after 150 years. However, it is probably unrealistic to expect that current generations of Whites will be willing or even able to compensate for 150 years' worth of loses. Nor, I would argue, is it reasonable to expect them to do so. But it is reasonable to ask Whites and Blacks (and others who have suffered a history of discrimination to sit down together and to jointly develop an image of what distributive justice would look like for everyone now—and into the future. The only way such a discussion could possibly succeed, and indeed, the only way policy changes to come out of such discussions could possibly succeed, is if everyone really means everyone. They would need to come to an agreement about how distributive justice should be defined, and how we can get there from where we are now. Both agreements would need to be sufficiently inclusive that people of all races would "buy in" to these ideas and agree to start working toward them. If any one group tries to impose its own narrow and self-serving image of justice on the others, it will not have sufficient support to be attainable over the short or long terms.
The final type of justice is restorative, and while this one should have a lot of relevance in this summer's discussion, I have heard hardly a mention of it. Restorative justice seeks to restore relationships to "rightness." Now, it could be argued that it is impossible to restore relationships to rightness when they never were "right," but if one modified the notion of restorative justice to mean justice to create healthy relationships where they were absent before, you would have a very powerful tool for social justice, it seems to me. Restorative justice seeks to repair what is broken, compensate victims for harms done, and reconcile relationships between individual people so that they can live together peacefully in the future. True, George Floyd and Breonna Taylor cannot live peacefully with anybody. But police can engage in restorative justice with the communities Floyd and Taylor lived in; indeed, police in all U.S. cities could engage in restorative justice with their citizens to good effect. Blacks and Whites—and other peoples—could engage in restorative justice circles all around the country to try to understand each other better, and to try to develop an image of what a racially "just" society would look like, and what we can do to move in that direction.
Such an exploration should, of course, also explore law enforcement's side of the story. There are lots of big, society-wide problems that the larger society has failed and, in many ways, not even tried, to address—drug abuse, alcoholism, inadequate care for the mentally ill, homelessness, lack of employment opportunities, poor schools, etc. Police are, in essence, being told to use their law enforcement toolkit to keep these problems from threatening the security of more fortunate segments of the society. We all need to own our part of the problem.
Until we unpack, understand, and pursue all four of these types of justice, racial justice and racial peace will remain an elusive goal.
-- Heidi Burgess. July, 2020.
 More for information on justice, see: Morton Deutsch, "Justice and Conflict," in The Handbook of Conflict Resolution: Theory and Practice, Morton Deutsch, Peter T. Coleman, Eric C. Marcus, eds. (John Wiley & Sons, 2011). <http://books.google.com/books?id=rw61VDID7U4C>.
 See the chapter "Retributive Justice and the Limits of Forgiveness in Argentina," in Mark R. Amstutz, The Healing of Nations: The Promise and Limits of Political Forgiveness, (Rowman & Littlefield, 2005). <http://books.google.com/books?id=gTFnh2GuD8EC>.
 For further clarification of the different forms of justice, including retributive, restorative, and procedural, see Jeffrey A. Jenkins's discussion on "Types of Justice," in The American Courts: A Procedural Approach, (Jones & Bartlett Publishers, 2011). <http://books.google.com/books?id=yvT5SVwbakUC>.
Use the following to cite this article:
Maiese, Michelle. "Types of Justice." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: July 2003 <http://www.beyondintractability.org/essay/types-of-justice>.