Justice as Performance

The search for justice is comparable to the search for the Holy Grail because justice is an ideal, the quest for which is never realised. The fact that a dispute necessarily involves conflict hints at the impossibility of a definitive meaning, for there is always going to be disagreement when we move away from philosophical abstractions to the particular.

conventional theorists of justice, whether from Antiquity, such as Aristotle,^[883] or from modern times, such as Rawls,^[884] invariably approach justice as an abstraction, the principles of which can be applied universally. More recently, there has been a reaction against universality. Amartya Sen, for example, insists that cognisance be taken of the lives that individuals actually live.^[885] Derrida’s idea of the performative takes the subjectivity of justice a step further in showing how its permeability produces or transforms a situation.^[886] Judith Butler elaborates on Derrida’s idea of the performative. Although focusing on gender, her insight illuminates the understanding of justice. The performative act involves repetition, ritual and legitimation in a public setting.^[887] Variations in the sites of justice produce multiple meanings despite the endless repetition of rituals in settings, such as courtrooms. The idea of each enactment of dispute resolution as performance imaginatively encompasses the complex web of meanings within the rubric of justice.

In this way it can be seen that justice is not the sole prerogative of judges adjudicating in formal courts, although justice is closely imbricated with the ritual of law, and law and justice are often assumed to be synonymous. The inequality of bargaining power between the parties to a dispute may produce an unjust outcome but faith in liberal legalism and the rule of law encourages or plays down that inequality. Indeed, actors other than judges within the legal system may pursue justice more assiduously. Such actors include arbitrators, legislators, bureaucrats, lawyers and litigants themselves. The sites in which justice emerge are also many and varied and by no means confined to a courtroom presided over by a judge.

The vastly different contexts of the three chapters in this section, viz, corruption and the rule of law in developing nations of the Pacific, the role of religion in international commercial arbitration and environmental justice in Europe, highlight the futility of fastening on a single definition of justice, a single agent of justice or a single site for the production of justice. I therefore commend to the reader the idea of justice as performance.