The Theories of Justice

Sustainable Justice and the Community
Chapter 2 The theories of justice

Liam Leonard, Paula Kenny
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CHAPTER 2
THE THEORIES OF JUSTICE

2.1. AN INTRODUCTION TO THE THEORIES

OF JUSTICE
The following sections will present a brief overview of theories of justice that
have underpinned the development of the institutions and administration of
justice in modern Western societies. It will begin with an examination of the
general political–philosophical ideas and concepts in the area of justice in
the modern era. It will then examine the perspectives of punishment, which
are linked to these philosophical theories.
By ‘modernist era’ the authors are referring to the period from the
seventeenth century to the late twentieth century. This is the period that saw
the development of modernism in most areas of Western societies. In the area
of religion it saw a departure from monopolistic influence of the Catholic
Church to the rise of Protestantism and then of secularism. The nation-state
was unified as the main political entity, and some of these nation-states along
with established dynasties raise and fell, whilst others saw a shift in their
national boundaries.
In the realm of government, it was the time of change from absolutist to
constitutional government; economically, feudalism was replaced with the
development of capitalism, by the transition from an agrarian to an
industrial economy. As a direct result the demographics of societies were
changed as populations shifted from rural to urban environments, and the
structure of families was altered as the role of males and females changed.
The period also saw the development of state-led police services and penal
codes and systems of punishment. It significantly saw developments in
people’s understandings of the size of the world and the universe. All of
these far-reaching developments awakened and stimulated much activity
35
36 SUSTAINABLE JUSTICE AND THE COMMUNITY
and debate in political, social, moral and legal philosophy, and it is at this
intersection that justice can be found.
According to Hudson (2007, p. 3), whilst there are various different and
competing theories and concepts in the thinking and attitude from the era,
they do have a distinctiveness and coherence, such that different schools of
thought can be seen as variants within a tradition, as different ways of
institutionalising the same values and beliefs. These various theories are
presented as different ideas that represent a balance between the values of
the state as a ‘traditional’ perspective, while accepting the fact that there are
different ways of securing those values in society. The modernist tradition
began with what came to be known as the Enlightenment, ultimately

evolving into modern Liberalism. Many influential theories of justice are
Liberal formulations of Enlightenment themes and values.
This modernist tradition is evident from the seventeenth century in
theories such as those set out in the work of John Locke on natural rights.
The tradition then progresses through ideas on the grounding of principles
of morality and justice put forward by Enlightenment philosophers, most
notably Immanuel Kant; they are then culminated in the Utilitarian
Liberalism of John Stuart Mill based on the ‘social contract’ concept. In the
second half of the twentieth century, these theories were revisited and
critiqued by contemporary Liberal theorists such as John Rawls (1972) and
Robert Nozick (1974). Subsequently, the implications of Liberalism in their
original and revised versions for law and morality have been questioned and
elaborated by Dworkin (1978), Raz (1986) and others.
Nonetheless, there has been no widespread shift away from social theories
which hold to an understanding of functional structures, such as
constitutionally limited government, equality of freedom and respect, and
individualism by successive generations of Liberal thinkers. Rather the
tradition has developed through writers, who on the one hand address
philosophical problems raised by, or left unresolved by, previous formula-
tions and, on the other hand, highlight different questions raised within
the tradition, according to political, moral and social circumstances of
different times. Irrespective of challenges that have been made to these philo-
sophical keystones, there has always been a response from a recognisably
Liberal perspective. The most radical critique of the Liberal tradition has
come from ‘New Left’ concepts such as Feminism and Ecologism.
The earliest phase of the Enlightenment Liberal tradition was concerned
with limiting political power and the extent of political obligation. Pre-
Liberal works produced during the early Enlightenment period by thinkers
such as Hobbes and MacPherson (2002) and Locke (cited in Laslett, 1988)
The Theories of Justice 37
challenged the autocratic monarchies of Europe and the doctrine of the

divine right of kings. Although Hobbes and Locke differed in their ideas on
the strengths of duty of subjects to obey the sovereign, Hobbes advocates
absolute duty, whilst Locke argues that duty is conditional on the sovereign
power in accordance with the rights of subjects.
Both thinkers agree that the basis of sovereign power and the duty of
obedience is in the self-interest of subjects, rather than in the divine status of
the ruler. This idea is known as social contract, which is of political power
arising from the agreement of individuals to relinquish some of their
freedom in return for the security offered by the institution of state power,
and is one of the main foundations of modernism. Over time it has been
subject to many different formulations, but it has not as yet been effectively
or resolutely displaced (Hudson, 2003).
The next phase in the development of the Enlightenment Liberal tradition
was the search for the measure of justice. Whilst Hobbes and Locke moved
away from the doctrine of sovereign as the earthly representative of God,
they did not advance on seeing justice and virtue as reflections of the divine
will and disposition. Furthermore, they produced no new theories on the
source and nature of justice. On the other hand, Kant and Mill, who
formulated and continue to be the two great thinkers of post-Enlightenment
Liberalism, argue that God’s will or even existence was not directly provable
and that the source of value must therefore be found in human beings
themselves and their observations. Kant located rightness in human
capacities, whereas Mill argued that goodness lies in human desires. These
two approaches, the deontological and the Utilitarian, are the main
branches of modern Liberalism, and as such they are manifested and
evident in the major contemporary theories of punishment.
In the twentieth century, the primary concerns of Liberalism shifted once
again to the political rather than the moral philosophical. This occurred
with the secure establishment of constitutional government, and the most
pressing issues for justice in the Liberal democracies can be associated with
the distribution of material and social goods. In Western societies,
challenges to Liberalism have come not from religion but from socialism
and communism, which have charged that Liberalism’s attachment to
property rights and to limited government have together legitimised
excessive inequalities in life chances and in degrees of wealth.
Understandings of Liberalism have been characterised by developing
ideas, which would set principled limits to inequalities (Rawls) or would
justify existing inequalities (Nozick). The political embodiment of these
ideas is seen in the welfare Liberalism of Roosevelt in the United States of
America after the depression of the late 1920s and the early 1930s, and in
Western European social democracies, competing with the minimal state
ideologies of Conservative libertarianism and neo-Liberalism.
The other great challenge to Liberalism has been pluralism. While
Liberalism was founded in the circumstances surrounding the emergence of
political difference and religious pluralism, they were not as complex as the
highly charged pluralisms of religion, race, ethnicity, sexuality and value
systems that are recognised as part and parcel of contemporary societies.
Theorists such as Locke, Mill and Rawls fall short in their arguments on
pluralism. However, there is a common thread in the Liberal tradition,
which connects the concepts of pluralism and justice. Although Liberals are
to some extent united in their support of anti-majoritarianism, they believe
that it is important to protect minorities against the tyranny of the majority,
as it is to protect subjects against the tyranny of the sovereign (Hudson,
2003).
The following sections will present a brief overview of theories of justice
that have underpinned the development of the institutions and administra-
tion of justice in modern Western societies. It will begin with an examination
of the general political–philosophical ideas and concepts in the area of
justice in the modern era. It will then examine the perspectives of
punishment, which are linked to these philosophical theories. By ‘modernist
era’ the authors are referring to the period from the seventeenth century to
the late twentieth century. This is the period that saw the development of
modernism in most areas of Western societies.
In relation to institutional religion, modernist thought witnessed a
departure from monopolistic influence of the Catholic Church to the rise
of Protestantism and then of secularism.
2.2. LOCKE’S THEORY OF KNOWLEDGE
John Locke is regarded as the first ‘Whig’ theorist who had a strong
influence on Enlightenment philosophers and is often credited with being
the founding father of the Enlightenment. His writings concentrated on key
Enlightenment themes, such as the sources and limits of human experience
in the world, the wrongness of religious persecution even to eradicate a
belief one firmly holds to be mistaken, and a vision of a society of citizens
governed by laws founded on respect for equal freedoms, based on the
‘social contract’ (Laslett, 1988).
Locke argues that knowledge arises from experience, and in his view
experience consists of two elements, sensation and reflection. Although he
was writing at a time of declining beliefs in divine authority, he was not
seeking to renounce religious truth itself, but rather that truth and knowledge
as immediately revealed and not subject to interpretation or indeed
construction in light of human experience. Locke saw all knowledge as
formed through the twin filters of experience of external events and mental
self-examination:
All those sublime thoughts which tower above the clouds, and reach as high as heaven
itself, take their rise and footing here; in all that great extent wherein the mind wanders
in those remote speculations it stirs not one foot beyond those ideas which sense
reflection have offered for its contemplation. (Locke cited in Laslett, 1988)
According to Locke’s theory, some items of knowledge are not acquired

through experience but are present in the mind prior to experience. Locke’s
theory has its origins in the work of Plato and Augustine. He examined two
kinds of knowledge claimed as ‘innate’, self-evident logical principles and
moral rules. Logical principles, he argues, seem self-evident only through
processes of rigorous mental analysis; moral rules, even if they seem to have
universal assent, are nonetheless rooted in experience.
If such principles are to be understood as universal, this must be because
of some commonality of human experience (Locke, 1988). Whilst Locke has
been subject to criticism for his lack of clarity, his theories were important
for the development of the Liberal tradition as he directed attention to the
operation of human capacities for reflection in real situations as the root of
knowledge and judgement. This quality of reflective capacity remains the
source of principles and values of justice throughout the Liberal tradition.
The innate capacity for human reflection means that members of society
are able to compare and contrast their actual experience of life in that
society with the imaginary experience of life in a hypothetical society or the
state of being outside of that society. Locke (1988) described the freedoms
that persons would have in a pre-social state of nature as freedom to act as
one wishes, freedom to dispose of one’s property unhindered, freedom to
repel or exact vengeance upon those who impinged on one’s actions or
property. He claimed that these primary freedoms were associated with the
state of nature to be natural rights, arguing that people associate in societies
in order to best protect those natural rights. Therefore, the just society is the
one that secures and upholds natural rights, and its use of coercive power
and infringement of liberty is justified only to the extent that it is necessary
to guarantee natural rights.
From Locke’s perspective, the legitimation of state power derives from

‘tacit consent’ in a (hypothetical) foundational social contract where
members of society agree to stop short of harming the life, liberty and
property of others in the exercise of their own freedom, and to hand over to
the state the role of punishing infringements of the laws enacted to uphold
these rights and freedoms (Hudson, 2003, p. 7). They therefore accept a
measure of restriction of freedom to act in pursuit of their self-interest,
including, argues Locke, a restriction in their freedom to seek retribution or
to bring about further restrictions on their life, liberty or possessions.
Natural rights and the freedoms and limitations they imply provide the
standards of right and wrong, justice and injustice, fairness and unfairness,
and precede any particular regime or tradition. It is the duty of those in
power as well as those over whom power is exercised to uphold these
standards. Locke’s ideal state of affairs was the civil society, the society of
free men, equal under the rule of law, bound together by no common
purpose but sharing a respect for each other’s rights (Gray, 1995, p. 13).
It follows from Locke’s conception of natural rights and the narrow limits to
legitimate power to interfere with subjects’ freedom of action that he would
be opposed to any attempts to impose uniformity of belief or custom.
Similar to his theory of knowledge, Locke’s thoughts on rights and tolerance
are criticised for their lack of content and for his failure to theorise
them properly.
Furthermore, Locke did not offer an extensive explanation of why the
state of nature would create the rights he specifies, rather than creating more
or different rights. While his right of equal freedom under law has been
incorporated into the Liberal perspective without much contention, his ideas
about property rights have proved more problematic. Some of the
difficulties with Locke’s ideas come from the lack of argument rather than
from the propositions themselves. It has been argued that a Lockean
approach to property in the tradition of Western welfare Liberalism
legitimises unconscionable levels of inequality (Hudson, 2003).
This objection is significant when it is compared to contemporary
formulations of entitlement, theories such as that put forward by Nozick
(1974). According to Nozick, natural rights allow only minimal state
governance. Locke argues that property is concerned with life and liberty as
well as material possessions, and it is to protect their rights in this broadly
conceived property that people come together in societies. Individuals
relinquish the state of nature and co-operate ‘for mutual preservation of
their lives, liberty and estates, which I call by the general name, property’
(Locke cited in Laslett, 1988, p. 102).
Laslett argues that Locke’s understanding of property appears to

symbolise rights in their concrete form, or he argues ‘provide the tangible
subject of individual’s powers and attitudes. It is because they can
be symbolized as property, something a man can conceive of as distin-
guishable from himself through a part of himself, that a man’s power to
execute the law of nature, can become the subject of his consent, the subject
of any negotiation with his fellows’ (Laslett, 1988, p. 103). While Locke’s
thoughts on property may seem to be broad and wide ranging, they subject
forms of property such as land, goods and wealth to the principle of
compatible and equal freedom, alongside life and liberty.
Although it is not full egalitarian, it does provide some limit to equality

and suggests that external property entitlements should not be subject to the
challenges and standards of justice. Locke’s work introduced the majority of
themes of contemporary Liberalism, equal society, the social contract, limits
to government power, rights and the just society, tolerance and diversity,
distribution of property, derivation of knowledge and values from experience.
His theories and ideas set the scene and tone for the Liberal tradition.
Similar to Locke and Hume, Immanuel Kant attached great weight to
human experience as the source of knowledge and understanding, but he did
not see it as the sole source. Kant was a pre-eminent thinker on the
Enlightenment and argued that the Enlightenment represented a moral and
intellectual coming of age:
Enlightenment is man’s emergence from his incurred immaturity. Immaturity is the

inability to use one’s own understanding without the guidance of another. This
immaturity is self-incurred if its cause is not lack of understanding, but lack of resolution
and courage to use it without the guidance of another. The motto of the Enlightenment
is therefore: Sapre aude! Have courage to use your own understanding. (Kant, cited in
Williams, 1999, p. 2)
Kant was not advocating that each person should make up their own
thoughts on justice; what he was claiming is that moral law is law which a
rational being would and must adopt for themselves. The rational
endorsement by the individual is a continuing and central idea in rational
theory, through to thinkers such as Rawls and beyond with Habermas and
other contemporary theorists. The essential component of modernism is this
idea of reflexive individualism in which each person, if not their moral
creator, is their own moral authority.
Kant also argued that the principles of justice are derivable from
categories of reason rather than from any conditions of life in an actual
society, or on a hypothetical natural state. Justice he argues is a property of
relations between people; it concerns the exercise of will among people, and
it is concerned with the possibility of freedom of the exercise of will rather
than the content or aim of that exercise of will. These conditions distinguish
justice from other moral ideas such as virtue, benevolence and charity. The
conditions also establish justice as a form of moral rationality, as distinct
from instrumental rationality, which is deployed to bring about effects
desired by the agent for themself (Kant, 1996).
He argues that it is in the nature of reason that it is something that is
actively exercised and the outcome of this exercise is the formation of will
according to Kant. Only will formed by free exercise of reason can be said to
be moral, and since justice is a moral category, it must be based on the free
exercise of will. Since justice is tied with the free exercise of will in relations
with other people, it follows that any freedom involved must be of a
‘relational quality’ (Hudson, 2003, p. 11).
Kant further contends that ‘justice is therefore the aggregate of those
conditions under which the will of one person can be conjoined with the will
of another in accordance with the universal law of freedom, every action is
just that in itself or its maxim is such that the freedom of everyone in
accordance with a universal law’ (Kant, 1996, p. 151). Freedom of will is
the most important concept in Kant’s theory of justice, and he develops the
idea further in his 1788 Critique of Practical Reason, where he argues that
freedom of will is not something that can be proved theoretically, but that it is
directed by our conception of morality and it is connected by our acceptance
of moral law. The universal law, which Kant refers to, is of equal freedom for
all human beings, which is the cornerstone of classical Liberalism. The law is
an essential component of Kant’s theory on moral philosophy as it allows for
a realisation of the two key elements of a universal law.
The first of these laws holds that all persons should be treated as ends and
never as means and that act in a way that you could will your acts to be
generalised. The first element comes from our recognition of human
freedom being made up of determining ends for oneself; the second is linked
to a demand for equality and also to the logical conditions allowing moral
rules. Kant’s rule of universalisability or the categorical imperative as it is
known and the rule of treating people as end and never as means imply
according to Hudson (2003) two categories of morality: firstly, morality is
unconditional and the logic of universalisability means that there can be no
exceptions. Secondly, content is based on the principle of equal respect; all
people should be treated as ends, as the individual is an end in themself. All
persons should be respected in their self-determination, on all occasions
(Kant cited in Williams, 1999).
Kant’s structure of morality and principles of justice show how his

argument moves from the nature of moral life to pre-assumptions involved
in moral ideas and practices. Equal freedom for Kant is not an outcome
created by morality, or a description of a just society; rather it is a condition
of possibility of justice (Kant cited in Williams, 1999). Justice in his view is a
way of curing inequalities in freedom of securing freedom from domination.
Therefore, it is clear from his theory that equal freedom is a key element of
justice. Kant also introduced an important separation between right and
good into theories of justice. This distinction he makes is based on the
difference between acting justly and acting out of desire. Kant argues that
there is a common tension between duty and desire.

He further states that we often have a sense that we ought to do
something we don’t really want to do, or shouldn’t do something we want to
do. Morality therefore cannot be a simple matter of fulfilling desire, and
justice must then be more than promoting what the majority desires. Acting
justly argues Kant is a matter of doing right, rather than bringing about
good. Kant’s importance in the Liberal tradition was significant as he
put forward some of the main principles of Liberal thought, and his work
was very influential on current theories of distributive and punitive justice.
More recent Liberal thinkers such as Rawls have also reformulated his
theories.
While Kant focused on the subject at the root of morality, Bentham and
Mill examined Utilitarian philosophy, as they created focus on the object of
reason. For Utilitarians, morality is not found in how reason advances but
rather in what the reasoning subject desires. This position did not mark a
return to pre-Enlightenment thinking, but rather, highlights what people
themselves value: what is worthy is that which is promoted. For Utilitarians,
what people desire and seek to promote for themselves and those they care
about is happiness.
Right action is thus just action, which promotes happiness. If happiness is
what is desired then it should be increased. The best society according to
Utilitarians is one which produces the greatest happiness for the greatest
number of people. Pettit (1980) describes this single standard of right and its
‘attractive simplicity’ and states that ‘the just social charter is required, not
to meet obscure metaphysical constraints such as natural rights represent,
but merely to ensure that more happiness is brought about by the charter
than would be realised by any alternative’ (Pettit, 1980, p. 111).
Jeremy Bentham laid the foundation of Utilitarianism in his text
introduction to the principles of morals and legislation published in 1789.
Here he introduces his theory on the human impulses to pursue pleasure and
avoid pain as the basis of rules of conduct (Bentham, 1970). He defines the
good for each individual as ensuring maximum pleasure in experiences and a
minimum amount of painful experiences. This balance, he argues, creates
happiness.
Bentham’s theory of Utilitarianism proved to be very attractive; however,
it can be criticised as being overly simplistic when it comes to certain issues
which Kant and others have focused their theories on. Bentham prioritises
pleasures and balances these with the pains of others. The first issue with his
theory is on what pleasures form happiness and what pleasures should a just
society advocate and formulate; that generally fall under the heading of
justice as welfare, the satisfaction of needs or justice as self-actualisation,

and the freedom to follow one’s own ends.
The second issue, balancing some of the pleasures against the pain of
others, is a significant concern for justice in modern societies. It raises the
problem, argues Hudson (2003), of the relationship of social utility to
individual rights. Bentham famously dismissed the idea of natural right as
‘nonsense on stilts’ (Bentham, 1970). On the other hand, thinkers such as
John Stuart Mill do not dismiss rights so easily. In fact they are the central
theme in his works On Liberty (1859) and Utilitarianism (1861). In
Utilitarianism he demonstrates that rights can be derived from the principle
of utility and hence that justice can be reconciled with Utilitarianism. In
On Liberty, Mill makes a strong case for liberty as essential for human
flourishing. He argues for freedom of thought and action as the basic
conditions of well-being and happiness.
Mill’s treatise On Liberty leads with his thoughts and ideas on harm.
He argues that the only reason for liberty in any person may justly be
curtailed to prevent harm to others. Neither advancement of the general good
nor the prospect of self-harm is according to Mill sufficient grounds for the
restriction of liberty. Mill suggests that the appropriate response to someone
thinking or doing something, which may result in self-harm, is advice rather
than coerced restraint, except in the case of harm to others (Mill, 1859).
His arguments on the importance of freedom to society as well as to
individuals suggest that any restriction on liberty is likely to be adverse
rather than beneficial to general welfare. Mill’s theory on liberty and his
thoughts on harm significantly advance those of Bentham as he brings
together individual rights to freedom, and the principles of utility as
maximising the general welfare are, according to Gray (1995), unsuccessful.
According to Gray, the problem is that freedom can be guaranteed only if
liberty and general welfare, as Mill suggests, coincide. Protection of liberty is
therefore dependent on liberty being what people value most, and it being
their highest priority. If this is not the case then according to Hudson (2003)
there is strong evidence that people do not always maintain a strong and
conscious commitment to freedom; then liberty is precarious. Liberty can be
certain only if it has a value of a pre-existing nature. This is exactly what
Utilitarians and Utilitarian thinkers want to deny. Mill returns to the
problem of the relationship between justice and utility in Utilitarianism
(1861), where he disputes:
the pretentions of any theory which sets up an imaginary standard of justice not
grounded in utility, I account the justice which is grounded on utility to be the chief part,
and incomparably the most sacred and binding part, of all morality. Justice is a name for
certain classes of moral rules, which concern the essentials of human well-being more
nearly, and are therefore of more absolute obligation, than any other rules for the
guidance of life y . (Mill cited in Westphal, 1996, p. 173)
It is evident from Mill’s writings that he was concerned with protecting

individual liberty against the wishes of others as well as oppressive
governments. In On Liberty, he argues that social convention is a significant
source of coercion as government tyranny, with the onset of democracy;
Hudson (2003) contends that he may have expected it to become the most
significant form of oppression. The real difficulty with Utilitarianism in
contemporary society is the relationship between liberty and individual
rights. Protection of these rights is dependent on the self-interest and
happiness-seeking person’s Enlightenment (Gray, 1995).
These values can only be utilised as rules and institutions of societies if
people really desire freedom and security rather than material goods. The
protection of freedom and rights is also dependent on people being
sufficiently aware to recognise that their self-interest is tied up with the
interests of others. If these conditions are met, then the idea that a just
society protects the happiness of the majority of people (an ideal supported
by Mill and Bentham) would mean that the interests of some would be
sacrificed for the majority.
However, Mill offers no proof of its dependability or generality, which
results in his theory of individual rights and liberties being unacceptable to
most contemporary Liberals. From the point of view of justice, Utilitarian-
ism has significant deficiencies such as the inadequacy in the specification of
harm and the minimalism of rights defined. Put together, those defects result
in a very small amount of harm that could greatly restrict freedom. It could
also result in nothing to overcome large amounts of inequality in distri-
bution of either goods of freedoms which would produce the greatest level of
happiness, then Utilitarians would support and unequal distribution.
As the twentieth century progressed, deontological Liberalism gave way

to state activism (Gray, 1995). The Liberal idea of limited government based
on individual right gave way to various forms of improved state power,
which was tied to different ideas of human good. The introduction of
welfare state counteracted political extremism in Western Europe and
economic interventions in the United States of America. The response to
economic depression and the Second World War in the 1940s and 1950s was
the promise of Liberal-welfaristic state-delivered levels of power, prosperity
and welfare. Utilitarianism in one form or another seemed to have
triumphed, although it was not without its defenders such as Popper (1945).
Deontological Liberalism appeared to represent the state in decline.

However, Kantian Liberalism was revived in the 1970s through the work of
John Rawls, whose formulation of justice as fairness became the key
focus of contemporary Liberalism. Rawl’s theories provide a critique of
Utilitarianism and put forward a plausible alternative to it. His principles of
justice are derived from a form of argument similar to social contractarian
thinkers of the seventeenth century. His main works such as A Theory
of Justice and Justice as Fairness provide a detailed analysis of the principles
of justice including their importance of application and the nature of
considerations, which feed both their content and interpretation.
In order to discover principles which can be considered objectively fair
(e.g. not a rationalisation of particular wants), Rawls employs the device of
‘original actors’ placed behind a ‘veil of ignorance’ (Rawls, 1972, p. 15). The
basic principle outlined here holds that the choice of just principles for social
organisation is often made by people who do not know what actual position
they are to occupy in society, nor what their particular interests and
inclinations will be. They are as a result prevented from sharing their
principles by reference to personal advantage and can advance only on the
basis of securing, to the greatest possible degree, fairness for all including
themselves.
The purpose of this procedure as Rawls argues is ‘y to set up a fair
procedure so that any principles agreed to will just y Somehow we must
nullify the effects of specific contingencies y (tempting the original actors)
to exploit social and cultural circumstances to their own advantage y the
parties are situated behind a veil of ignorance. They do not know how the
various alternatives will affect their own particular case and they are obliged
to evaluate principles solely on the basis of general considerations’ (Rawls,
1972, pp. 136–137).
Specific deprivations of knowledge imposed by the veil of ignorance are
(a) place in society, (b) class or status, (c) natural assets or abilities such as
intelligence and strength, (d) personal conception of ‘good’, (e) personal life
plan, (f) psychological inclination, (g) economic and political situation
of the society, (h) level of civilisation and culture attained by the society and
(i) the generation to which they belong (Rawls, 1972, p. 137). According to
Rawls, there are two broad types of knowledge, which actors are deprived
of: (a) knowledge of personal characteristics and (b) condition of society for
which a standard of justice is to be devised.
The original actors are not idealists; they are intended to act in the spirit of
rational self-interest, and the nature of their expectations about unknown
society then becomes important. The actors being deprived of particular
knowledge cannot assess the probabilities of their own position and are there-
fore argued, by Rawls, to work for the optimum opportunity for attainment
of the most extensive goods but also to maximise the minimum condition in
which they might find themselves in the real society (Rawls, 1972).
Rawls further argues that his primary principles of justice are ‘y those a
person would choose for the design of a society in which his enemy is to
assign him his place’ (Rawls, 1972, p. 152). His work has been subject to
some criticism such as that from Wolff (1977), who argues that the structure
of the veil of ignorance shielding the original actors is essentially a rhetoric
device used to present the reasoning by which Rawls’s principles of justice
are supported. It is the value of those principles which must be assessed
rather than mechanics of what is an inherently impossible original position
(Wolff, 1977).
Essentially, Rawls sets out two of the principles of justice from his
position of rationally self-interested actors in the original position. The first
is that ‘each person is to have an equal right to the most extensive total
system of equal basic liberties compatible with a similar system of liberty
for all’ (Rawls, 1972, p. 302). The second is that social and economic
inequalities are to be arranged so that they are both to the greatest benefit of
the least advantaged consistent with just savings principle and are attached
to offices and positions open to all under conditions of fair equality and
opportunity.
Rawls then orders these principles insofar as liberty is agreed to be the
priority and therefore liberty may only be curtailed to defend liberties. The
first will accordingly always have priority over the second, but the second
will always come prior to ‘efficiency’, maximisation of advantage and the
‘difference’ principle, and the acceptance of inequality. According to
McCougbrey and White (2002), even those least enabled will value liberty
as affording the best chance for self-improvement (McCougbrey & White,
2002, p. 304).
He furthers this argument by stating that principles of justice become

operative only beyond a certain basic stage of social development. In the
course of the wider development of society (as basic needs are more and
more effectively met), the emphasis will shift from these needs to concerns
with liberties, as this exercise becomes viable with improving material
conditions (Rawls, 1972, p. 542). Prior to this when basic material needs are
not being met, Rawls suggests that equality would be preferred. If liberty is
preferred as a ‘total basic system’ because it affords the best protected route
of maximisation of position, it would appear extremely relevant to people
denied even essential needs.
According to McCougbrey and White, liberty and justice appear to lose

credibility if they become luxuries to be enjoyed only beyond a certain point
of affluence (McCougbrey & White, 2002, pp. 304–305). Rawls’s argument
of accepted inequality, which is implicit in the difference principle by the
reference to the advantage of the disadvantaged, is related to the human
concern for at least the generation following. This may impose limits on the
use of resources by any given generation. It also implies an investment by
each generation for those who will follow.
While Rawls’s (1972) first principle of justice and fair opportunity
moderates the impact of the principle of difference in application between
people at a given time, the just savings principle limits its impact as between
generations. This form of justice between generations cannot rest upon the
greatest benefits of the least advantaged since earlier generations can hardly
be retrospectively benefited (McCougbrey & White, 2002). Later genera-
tions may be disadvantaged or at least protected from disadvantage by the
wise investments of their predecessors.
Rawls’s principles of justice are of great theoretical interest but gain
greater salience when they are applied in real terms. He sets out a four-stage
sequence for the attainment of a just society. The stages, beginning with the
first, the original position, a hypothetical construct designed to facilitate
considerations of the questions arising in the creation of a just society.
Rawls admits that his stages are modelled in part on constitutional
developments in the United States of America.
The four stages of this sequence of the principles of justice and fair
opportunity are as follows:
(1) Enunciation of the principles of justice from the original position.

(2) Partial lifting of the veil of ignorance with regard to general
circumstances of the society but not individual actors, devising of
constitutional system dealing with powers of government and rights of
citizens. The process must deal with different and opposed standpoints.
Granted the priority of liberty, the outcome is assumed to be some form
of constitutional democracy.
(3) Having established a constitution, the next step is legislation, which
should be devised in accordance with justice as well as constitutional
procedures. Legislators are intended to act in light of the general interest
rather than to their personal advantage.
Rawls admits that judging whether or not a law is just may be difficult,
especially in light of the difference principle, and that it may be easier simply
to determine whether a law is not unjust. This position raises the issue of the
relationship between justice and injustice. The final stage of Rawl’s
sequences of principle of justice and fair opportunity holds that
(4) Laws and rules by judges and administrators and their working in the
actions of people in general is the point at which the veil of ignorance is
fully removed (Rawls, 1972, p. 198).
According to Hudson (2003), Rawl’s arguments about the principles of

justice address some of the main problems of earlier theories. She argues
that natural rights theory offers no guarantee against the unequal distri-
butions and no promise of addressing the injustice of earlier distributions;
Utilitarian theory does not offer adequate guarantees of individual
rights. Rawl’s concept of justice combines the essential idea of Kantian
approaches, that justice is a set of principles to enable the independent
resolution of conflicts between the ends of self-determining persons, and the
insight of Utilitarianism, which is meeting human wants rather than
implementing abstract, mystical principles, is what a just society should
advocate.
One of the main aspects of Rawls’s theory, which has been developed
further by subsequent thinkers, is its ability to deal with the difficulty of
external preferences. Despite Mill’s focus on the issue of diversity,
Utilitarianism fails to deal adequately with the possibility that some
people’s choices will not be supported, because not enough people will vote
for them. Dworkin regards Rawls’s Kantian theory as providing an
advanced grounding for securing individual liberty.
He was concerned with the application of the principle of equal liberty
and the prior of rights over general welfare concerns in actual legal political
issues such as minority rights. Dworkin supports a rights-based rather than
a rule-based approach to law, arguing that rights are ‘trump cards’ held by
individuals, which allow them to resist decisions made even by legitimate
authorities, following properly constituted rules (Dworkin, 1986, p. 198).

Here he is extending Rawls’s theory from the establishment of basic
principles and structures to the actual functioning of institutions and their
decision-making.
Another advantage which Rawls’s theory provides is that his ‘difference
principle’ provides a rational approach to the limitation of inequalities.
According to Hudson (2003), without this principle or a similar one, we are
forced to choose between Lockean entitlement theory, which legitimates all
inequalities so long as they arise from lawful disposal of lawfully held assets,
or rigid egalitarianism such as that all must have the same or have only what
they need (Hudson, 2003, p. 22).

Adapting such a Lockean approach in the community may be offensive to
the sense of solidarity of that community by permitting some to go without
unlimited wealth while others have access to it. Both versions of this second
approach offend a sense of rightness of people at liberty to enjoy that they
legitimately earn. Nozick, who advocates a Lockean minimal state with
minimal state intervention, opposes Rawls’s difference principle as a guide
to measuring and remedying past injustices or bestowing new property
entitlements (Nozick, 1974).
Contemporary Liberals have put forward improvements and develop-
ments on Rawls’s theory and have pointed to some deficiencies. Dworkin
argues that Rawls does not view the possibility of conflict between ideas of
liberty and equality serious enough (Dworkin, 1986). Notwithstanding some
of the difficulties and anomalies of Rawls’s theory, it is widely accepted as
the most successful and authoritative recent formulation of Liberalism.
Gray argues that in spite of the deficiencies, ‘it is in the development of this
contractarian method that the most promising solution of Liberalism’s
foundational questions is to be found’ (Gray, 1995, p. 55).
2.3. LIBERALISM AND PUNITIVENESS
All forms of Liberalism support that offenders should be punished.

However, due to the value Liberal thinkers place on freedom to pursue a
person’s chosen ends. It follows that punishment should be limited and be
for legitimate reasons. The two streams of Liberalism, which earlier sections
have examined, Kantian Deontologism and Utilitarianism, are associated
with two approaches to punishment, retributivism and consequentialism.
Both approaches share a similar objective, which is to deter harmful or
undesirable behaviour (von Hirsch, 1993).
Punishment, according to Hudson (2003) and others, is a negative sanction

for proscribed behaviour. The essential question for Hudson and the others
including the authors is not what the purpose of punishment is but what is
the justification for the deliberate infliction of pain or hardship and what is
the proper means of pursuing the deterrence of harmful behaviour. It is on
this very point where the two approaches move away from each other.
Consequentialism looks forward to future preventable harms (Beccaria,
1764). Retributivism looks backwards to harm already carried out according
to Kant. Consequentialism advocates that offenders need punishment to
reduce the likelihood that they will offend again. Retributivists argue that
they deserve punishment due to the crimes that they have already committed.
Consequentialists agree that communities require the imposition of
punishment to deter potential offenders and prevent future crime.
Retributivists on the other hand argue that the community needs punish-
ment to be inflicted on offenders in order to restore the balance of benefits
and harms in society and repair the damage that has been done to its moral
boundaries. These perspectives support that a system of punishment is
necessary to dissuade potential offenders from transgressive acts and to
assure potential victims that any encroachments on their well-being is taken
seriously.
Both approaches agree that in order to ensure a limitation of self-interest
in favour of respect for each person’s liberty and property, positive
sanctions in the form of benefits from such social co-operation must be
complemented with negative sanctions in the form of ‘hard treatment’ for
transgressions. This argument for the existence of a system of punishment is
what Rawls refers to as the assurance; justification for coercion is that it
provides an assurance that rules will be enforced (Rawls, 1972, p. 315).
2.4. SUMMARY
This chapter has examined all versions of Liberalism, and it is clear that all
thinkers value liberty and equality. Among contemporary Liberals, Nozick
(1974) represents the Conservative strand and Rawls (1972) and Dworkin
(1978) represent the egalitarian strand. Modern Liberalism continues to be
divided into two stands, Utilitarianism with morality derived from what
people value and Deontologism, which derives moral principles from the
human rationality that makes choices. Liberalism also values objectivity;
from a Utilitarian perspective it is between persons, from a deontological
perspective it is between ideas of the good. Liberalism as a tradition has
established the idea of rights as a practical process of liberty and a

connected idea of limited government. As the tradition has developed,
successive thinkers have examined how rights and freedom are established in
earlier theories. The Liberal ideas on equality, freedom and security are
important values in contemporary society and have added to significant
advances towards freedom from oppression and tyranny.
The brief overview of theories of justice which this chapter has provided
demonstrates that there are some inherent tensions in existing Liberal
theories of justice. These tensions cannot be resolved by rejecting current
perspectives on the importance of values and ideas. The main tension that
has been demonstrated here is the tension between utility and rights.
Liberals have considered many questions and have made significant
progress, but there are new challenges presenting themselves with changes
and development of societies in the modern era. Issues around rights, utility,
difference and identity, universalism and community-derived particularity
are key for Liberal theories of justice. Some of these themes will be
examined in further details in later chapters.
The chapter provides a framework for understanding the key theories of
Functionalism, social control, crime and deviance, which surround the issue
of restorative justice. The chapter sets out to define key themes such as
crime, deviance and delinquency. This is achieved by applying a sociological
understanding and perspective to existing criminological inquiry. The next
section examines the perspective of Durkheim, Foucault and Merton on
crime. It then examines the Chicago School’s contextualisation of crime and
delinquency moving on through Matza. The chapter then goes on to
examine governmentality through Foucault and Dean. Furthermore, the
chapter analyses contemporary sociological and criminological under-
standings of delinquency, deviance and juvenile justice. It also examines
the civilising process and anomie through Merton and Elias. It concludes
with an outline of the significance of the functionalist socialisation in the
context of youth crime and justice.
2.5. DURKHIEM, FOUCAULT AND JUSTICE
This section will outline the key theoretical framework which underpins this
thesis, that of Functionalism. As a theory, Functionalism emerged from
Durkheim’s sociological positivism, which sought to identify and explain the
social facts that come to define the structures of society. For Durkheim,
society’s attempt to build cohesion and solidarity during periods of
transformation was based on the members of that society’s ability to explain

and apply understandings of social functions that in turn produce social
order and control. In relation to crime and deviance, the importance of
Functionalism can be seen at two levels. For Durkheim (1964), crime and
deviance are everyday phenomena that in turn can be seen as ‘social facts’.
This functionality stems from the collective response of society to criminal
and deviant acts.
Any subsequent collective rejection of deviant behaviour in turn creates
the norms, mores and laws by which society is governed. Durkheim sees
elements within the response to crime from the wider society as functional
because these responses create a sense of community and they allow for the
rituals of punishment and restitution. Therefore, a functionalist perspective
of crime understands that crime and deviance allow for the creation of rules,
consensus, conformity and restraint. These functional elements come to
define the values inherent in that particular society. Secondly, Durkheim
establishes an understanding of anomie in society. For Durkheim, anomie
indicates the breakdown of the rules and norms of society. His under-
standing of anomie or anomic society was presented through his study of
suicide. His understanding of the functionalist of anomie in society in turn
influenced Robert Merton in his own studies on dysfunctionality
(McLaughlin & Muncie, 2005).
Evidence of the functionalist perspective in restorative justice practices
can be seen in the work of Durkheim, who recognised that crime
and criminal behaviour are Universal, normal and functional. He saw
crime as a normal occurrence and believed that it is impossible to have a
society totally devoid of crime: ‘it is a factor in public health and integral
part of all societies, crime, is, then, necessary’ (Durkheim, 1964, p. 46).
Durkheim believes that the presence of the criminal allows the rest of society
to draw together and reaffirm their values. Therefore, through opposition to
criminal behaviour, the social group or society is strengthened. Durkheim
regards the criminal as someone who provides the community with an
opportunity to reassert standards, which he or she had broken or opposed.
His pioneering study of the production of order and cohesion in modern
industrial society had noted that, as societies become more advanced and
complex, punishments become less severe (Durkheim, 1964). He cited
imprisonment replacing death and mutilation as the sanction for most
crimes. Durkheim argues that repressive forms of law, such as criminal law,
tend to diminish, with conformity being secured more and more by
restorative law, which is law concerned with complaints between individuals
rather than crimes against the state or wider society.
Hudson (2003) contends that the prisons which were built in the
nineteenth century in the major industrial cities were designed to reform
as well as to incarcerate. By combining elements of work and contempla-
tion, the modern prison was built on the model of a monastery. One of the
most famous prisons designs at the time was that of Jeremy Bentham, the
‘panopticon’, which allowed the prison guard positioned in a central watch
tower to observe each and every cell without the prisoner necessarily being
able to know exactly if they were being observed or not. Foucault in
Discipline and Punish (1977) describes the utilisation of the ‘panopticon’ in
great detail and also gives an insight into the workings of the so-called
modern prison with examples of the prisoner’s timetable, which is

practically identical to that of a monk or nun. While the individual cells
allowed for reflection and penance, they also served as a measure of
punishment along with the work ethic within the prison.
However, the panopticon was never built to Bentham’s exact specifications
for prisons. Victorian prisons such as Strangeways and Pentonville give a
clear idea of the strategy envisaged by Bentham. Foucault in Discipline and
Punish sees discipline as the fundamental principle of modern punishments.
He opens the work by contrasting a public torture and execution in 1757,
with a timetable and rules for a ‘house for the reform of young prisoners’.
Eighty years later the first punishment is aimed primarily at demonstrating
the absolute power of a sovereign over his subjects; the second demonstrates
a new kind of governance, which utilises sovereign power, new social science
and techniques of observation and regulation to produce the docile,
productive body needed by capitalist industrialism. Foucault’s analysis of
punishment is part of a wider analysis of power in modern society.
For him, discipline is both the object and mechanism of punishment and
is first and foremost a technology of power (Foucault, 1977). Shearing and
Stenning (2003) in their article ‘From the Panopticon to Disney World’
examine the development of discipline through the use of public and private
examples of non-carceral disciplinary social control. This they argue
represents an important indication of what the social control apparatus of
society is actually getting up to. The authors examine the structures and
procedures of discipline and control that are embedded and dispersed
through micro-relations in modern society. Shearing and Stenning (2003)
argue that we as active members of society rarely query these forms of
control as we are trained whether it is by moral or instrumental language to
be disciplined and maintain social order.
Similarly, Foucault (1977) defines discipline as a type of power
comprising a whole set of instruments, techniques, procedures, levels of
application and targets which may be identified with an institution or an

apparatus. The panopticon epitomises the embedded nature of Foucault’s
theory of discipline as it is a mechanism which ‘automises and
disindividualises power’. Power has its principle not so much in a person
as in a certain concerted distribution of bodies, surfaces, lights, gazes and an
arrangement whose internal mechanisms produce the relation in which the
individuals are caught up (1977, p. 210).
Therefore, it does not matter who exercises power; any individual at
random can operate a machine. Shearing and Stenning (2003) employ a
series of example to show how relevant Foucault’s theory is in modern
society. The ‘Disney World’ example is characterised as an exemplar of

instrumental discipline as it displays an embedded nature of discipline, which
is suitable as a means of preventive control as surveillance in the park
becomes part of the very relations to be controlled. There is no definite
presence of security men (such as the example given in the article); everything
fits in with the environment. However, if the norms of control are violated,
morality is called into play as a consequence (Shearing & Stenning, 2003).
Discipline because of its embedded character varies according to the
context in which it is applied. It is for this reason, argues Foucault (1977),
that when discipline is applied in the case of carceral punishment, its
distinctive element is that of individualised soul training or the ‘docile body’.
Shearing and Stenning (2003) use Foucault’s theory regarding discipline and
punishment to show the development and evolution of discipline. They state
that what makes private control different from traditional forms of control is
not just its disciplinary character which shares with carceral control but the
challenge it offers to the moral foundation of the order maintenance process.
The focus of discipline, based primarily on surveillance in the article
shifted from the culpable employee or individual to the categories of people
who create the opportunity for disorder. The examples Shearing and
Stenning (2003) use of private control display a clear rejection of traditional
moral conceptions of order and control process. Executives reject the idea of
moral reform as a basis for control. Order is seen as the most ‘conductive
way to achieving fundamental community objectives’; therefore, order is
controlled by whatever maximises profit.
2.6. CRIME AND DEVIANCE IN THE COMMUNITY
Merton suggests that criminal and rule-breaking behaviour results from

‘differential access to the success goals of society by legitimate means’
(Merton, 1938, p. 216). By this he is referring to societies where a strong

emphasis is placed on certain goals but where the means to attaining them
are unavailable to most of its members, the result Merton believes is anomie,
a situation where the rules and standards governing behaviour have lost
their influence and are liable to be ignored and where shared norms or rules
no longer determine and direct behaviour.
According to Merton (1938), a situation of ‘anomie’ exists where people
strive for goals of material success but do not possess the opportunities to
reach them by legitimate means. Merton’s theory of criminal behaviour can
also be called a ‘strain theory’. According to Merton, this is a ‘working class’
phenomenon. Merton believes that young people from working class

backgrounds share the same cultural goals and values of the middle class,
but they do not have the opportunity and means to achieve these goals and
hence are motivated to lead a life of crime.
Both Merton (1994) and Merry (1995) in their studies discuss resistance in
the form of social structures, law and culture. Merton’s (1994) theory
explores the nature of the relationship between social structures and the
individual, whereas Merry (1995) uses data, which she collected to examine
a range of forms or resistance and the impact on cultural meaning as well as
political mobilisation by legal institutions. Both authors argue that actions,
which seem to be individual, emerge from distinctive cultural under-
standings embedded in particular social worlds.
In addition, Merry’s (1995) research highlights through reference to
particular cases how powerless groups reconstruct the social identities that
define their lives. Merton furthers this belief by using culturally defined
goals, purposes and interests. He argues that these goals are ‘more or less
integrated and involve varying degrees of prestige and sentiment’ (Merton,
1994). The social structure in his belief performs the second stage by
defining, regulating and controlling acceptable modes of achieving
such goals.
However, Merton (1994) adds that the attainment of cultural goals is
limited by institutional norms. The cultural goals of the cases, which
Merry (1995) refers, were limited in some form by the legal institutions,
which upheld the norms of the institution. Merry (1995) further argues
that cultural understandings inform all actions including those that are
labelled resistance. She states that to speak of isolated acts of resistance
carried out by individuals denies the social world that constructs the
individual and their ‘sphere of action’. Merton (1994) acknowledges that
there is no group in society where there is an absence of regulatory codes of
governing conduct. However, these groups do vary in the way in which
institutional norms are integrated with the goals, which are part of the
culture make-up.
Merton further argues that emotional convictions may have an important
role in governing the conduct of such groups. He contends that certain
aspects of the social structure may generate resistance and anti-social or
deviant behaviour as a result of differential emphases on goals and
regulations. Merton also uses the example of a poker place to provide
context for his theory. He describes the uneasiness experienced by the
players shows an awareness of the institutional rules of the game in order to
evade them, but the emotional supports of these rules are ‘largely vitiated by
cultural exaggeration of the success goal’.

It is generally accepted in society that crime is any act, which breaks
criminal law. In addition to breaking criminal law, a crime can be followed
by criminal proceedings including a court appearance and punishment in the
form of a prison sentence. The phrase ‘can be followed by indicates’ that not
all crime does actually result in arrest and prosecution. Some of the reasons
for this are, firstly, not all crimes committed are reported and, secondly, the
police are not always aware of the occurrence of criminal activity. Criminal
law is not fixed and static; it varies over time and from region to region.
‘Crime is a relative concept which can only be defined in relation to
particular criminal laws which are effective at particular times and in
particular societies’ (Marsh, 1991, p. 1).
Therefore, actions which are defined as criminal may vary in different
cultural settings, in different societies and over different periods of time. For
example, the consumption of alcohol is legal and a socially accepted practice
in most countries, yet in certain Muslim countries, it is illegal and may result
in severe punishments. The definition of crime as an act which breaks the
criminal law of a particular society is always not affected by variation in
what is seen as constituting crime in different societies. Definitions of crime
are based on criminal laws, which are made by particular governments and
enforced by established criminal procedures. Crime therefore has to been
seen as a social phenomenon which is subject to variation depending on the
type of society and government at particular times, including their criminal
laws and practices.
Deviance is a term which is used to describe persons who deviate, digress
and stray from normal behaviour. In sociology, deviance is applied to
situations where the behaviour is disapproved of and subject to some form
of punishment. Deviance is thus used to describe behaviour that is outside
the rules of society, and these rules can be legal rules or social and moral
rules, rules about the conventional way to dress or to speak to other people
(Marsh, 1991). Deviant behaviour is also behaviour that can result in some
form of punishment, and this punishment can either be formal, legal
punishment or take the form of social and moral disapproval. Deviance,
according to Marsh, is behaviour which does not follow the expectations or
norms of the majority in society, and it leads to hostile and critical reaction
from the majority.
Delinquents can be defined as persons under some specified age that
commit acts which constitute crime if carried out by adults. The term
delinquency covers a wide variety of violations of social and legal norms,
from behaviour that is merely a nuisance to criminal acts such as theft and
larceny. In criminology the term juvenile delinquent is typically used to

indicate the high level of offences committed by young males between the
ages of 12 and 20. The typical crimes of younger males are larceny and
breaking and entering, while violent crimes are more common in the age
groups of 17 and over. Most sociological theories of juvenile delinquency
attempt to explain crimes such as larceny and breaking and entering in terms
of the organisation of urban gangs, delinquent subcultures and the
limitations on the opportunities for working class males and deprived
social groups.
The Chicago School had been analytically to the fore in studies of
criminology by putting forward routine activities theory and control theory,
both of which describe convergence in space in society. The Chicago School
defined juvenile delinquency in terms of the social structures of local
neighbourhoods and the role of peer groups in the socialisation of adult
generations. David Matza in his book Delinquency and Drift (1964) argues
that delinquency did not emerge as a result of strongly determined forces but
rather through a ‘gentle weakening of the moral ties of society’ which
allowed some young people to drift into delinquency.
Matza (1964) further argues that delinquents often ‘neutralise’ legal and
moral norms by defining them as non-applicable, irrelevant or unimportant
to their being. He states that once a person feels indifferent towards the law,
he or she may commit unlawful acts without feeling any strong sense of guilt
or shame. Matza believes that a delinquent who neutralises his or her
behaviour towards legal and moral norms may be said to drift into a
subculture of delinquency, which makes them subject to committing
criminal acts (Matza, 1964).
In relation to the factors that relate to juvenile crime, research has shown
that no one single factor influences delinquency but rather a number of
factors that work together. Every individual young person is different, their
situations are different and as a result some factors will be more influential
than others depending on the individual. Nonetheless, poor funding for

community resources and poor planning have been the major contributing
factors towards rising crime rates in urban areas.
Delinquents can be defined as ‘persons under some specified age that
commit acts, which constitute crime if carried out by adults’ (Gibbons,
1981). Contemporary programs of delinquency control can be traced back
to the child savers of the nineteenth century who helped to establish special
judicial and correctional facilities such as reformatories for the manage-
ment, processing and labelling of troublesome youth (Platt, 1969). The term
delinquency covers a wide variety of violations of social and legal norms;
from behaviour that is merely a nuisance to criminal acts such as theft and
larceny (see Hendrick, 2006; Goldson, 1997a, 1997b, 1997c; Hagall &
Newburn, 1994). In criminology, the term ‘juvenile delinquent’ is typically
used to indicate the high level of offences committed by young males in their
teens who have drifted beyond the community’s influence.
However, Platt (1969, citing Bloch, 1958) argues that the ‘delinquency
problem’ is linked to more specific factors such as youth–parent conflict,
changes in the structure of modern families and the lack of sustained
primary relationships, the lure of the peer group, the increased profession-
alism of the police and a growing acceptance of what he calls middle class
ideals of normality. Under-resourced communities have suffered most from
crime, and in many cases young people have been let down by the state and
agencies meant to protect them. In worst case scenarios, the state and its
agencies have exploited the young in poor areas for political or professional
gain, with a plethora of academic researchers, policing initatives and
political agendas being unleashed on unsuspecting communities as part of
failed New Right agendas.
2.7. THE ANOMIC SOCIETY
Significant theoretical interest in the nature and origins of delinquency was

fuelled by Albert Cohen (1955), who suggests that young people may
become involved in delinquent behaviour through a process of reactions,
where norms are taken from what he calls larger subcultures and turned
upside down within a delinquent subculture. Cohen (1955) recognised
that by middle class standards, a great deal of delinquent behaviour is
negative, malicious, non-utilitarian, versatile and free from adult restraint.
Merton on the other hand explored how social structures exert pressure
on youth to engage in nonconforming, non-regulatory behaviour. Merton
(1965) contends that delinquency can be viewed as a symptom of

strain (anomie) caused by a gap between culturally prescribed expectations
of economic success and socially structured aspirations of achieving
this success in a fair and legitimate process. Similarly, Parsons (1965)
suggests that children tend to suffer from the initiating processes of
their peers:
The fact that the major agents for initiating processes of change lie in other sectors or
society, above all, in large-scale organization, in the developments of science and
technology, in the higher ranges of culture y This would suggest that the adult agencies
on which the youth most depends tend to some extent to be ‘out of tune’ with what he
senses to be the most advanced development of the time. He senses that he is put in an
unfair dilemma by having to be so subject to their control. (Parsons, 1965, pp. 171–172)
However, Matza (1964) argues that delinquency did not emerge as a result
of strongly determined forces but rather through a ‘gentle weakening of the
moral ties of society’ which caused a further drift by young people into
delinquency. Delinquents often ‘neutralise’ legal and moral norms by
defining them as non-applicable, irrelevant or unimportant to their being.
Once a person feels indifferent towards the law, he or she may commit
unlawful acts without feeling any strong sense of guilt or shame. Matza
(1964) further contends that a delinquent who neutralises his or her
behaviour towards legal and moral norms may be said to drift into a
subculture of delinquency, which makes them subject to committing
criminal acts.
Whilst sociologists such as Merton (1956), Cohen (1955), Parsons (1965),
Matza (1964) and Platt (1969) have all contributed to the understanding and
the social context of delinquency, there is still not enough discussion about
the stilted social processes which define persons as delinquent. It is clear that
young people in marginalised areas are labelled as delinquent due to class
discrimination. A young person that steals a car radio is labelled a criminal,
while a politician that embezzles hundreds of thousands from the public
purse is a ‘rogue’, or a ‘white collar’ criminal.
This understanding effectively implies a ‘victimless’ crime. However, the
victims of white-collar crime and public corruption are ultimately the
citizens who have to carry the burden of higher taxes or inadequate funding
for marginal areas that in turn produces further criminality. Becker (2003)
observes that delinquency and deviance are not inherent in human
behaviour but rather are ascribed labels, which are attached to individuals
and/or groups in particular social settings.
Social groups create deviance by making rules whose infraction constitutes deviance, and
by applying those rules to particular people and labelling them as outsiders. From this
point of view, deviance is not a quality of the act the person commits, but rather a
consequence of the application of rules and sanctions to ‘an offender’. The deviant is one
to whom that label has successfully been applied; deviant behaviour is behaviour that
people so label. (p. 243)
Hendrick (2002) argues that juvenile delinquency in common with crime

can be understood only if the meaning of the term is considered within a
broad socio-political context. The argument he is making is that youth crime
and youth justice should be approached historically in relation to social,
political, economic and personal change; cultural, social and political order;
the influence of professional and administrative class agendas; party
political programmes for the content and management of governance; and
finally age and generational relations.
2.8. PASTORALISM AND COMMUNITY JUSTICE
The manner in which the state has established power over societies through
the ages has been influenced by the religious sector, from the Ancien Re´gime
of feudal times through to the advent of Liberalism and neo-Liberalism. The
existence of a ‘Divine Order’ with a Benevolent God and ruling elite at the
top was a characteristic of the feudal state. Liberalism’s incorporation of
certain religious values was reflected in Weber’s ‘Protestant Work Ethic’,
while the concept of meritocracy, which underpinned modern neo-Liberal
democracy, has a pastoral concern with just rewards at its core. While
secularism emerged as a challenge to the links between the state and religion,
the state was so infused with religiosity and hierarchical values that
secularism was never a complete project.
In addition, once the frameworks of governance through pastoral values
came to be established under the original form of Liberalism, the
relationship between the state and the poor came to be understood through
its pastoral terms of reference; charity, virtue, hard work and chastity were
the essence of Victorian ideology. The significance of Marx’s empowering
concept of ‘species being’ as the embodiment of community-based resilience
based on the shared praxis of craft as opposed to the pursuit of personal
aggrandisement was not yet realised in the Victorian Age.
Essentially, we can understand the emergence of pastoral power as an
element of the traditional Conservative understanding of the ‘Divine Order’,
with God and the monarchy on the top and the ever-suffering poor at the
bottom. This Conservative pastoral perspective leaves little room for those
at the bottom to move upward, as the social mobility of neo-Liberal
meritocracy provides a space for. In the truest understanding of Victorian
pastoralism, the poor are suffering for their inadequacies and their sins, and
the pastoral mindset is to provide a degree of respite from this suffering
rather than to provide the means to end it or to allow for an improvement in
the life chances of the poorest sectors of the population. Instead, the care
and welfare of the poor afford those with merit to improve their own lives
through the rewards of providing charity for those who cannot provide for
themselves.
According to Dean, this concept provides us with an understanding of the

‘paradox of contemporary Liberal welfare states’ (Dean, 1999, p. 75) as
‘charity, philanthropy and voluntary activity’ challenge the concept of
universal provision, which is held at the core of the welfare state. This
division shifts between the idea of welfare as a right and the somewhat more
benign understanding of welfare as the meritous shepherd tending to their
obedient and compliant flock, who must display both gratitude and an
impulse towards a humble poverty.
This Foucauldian ‘shepherd-flock game’ is a far cry from the context of a
citizen’s rights and obligations, and indicates the tensions between ‘the
notions of the citizen, and the living individual who is the target of pastoral
power, a being who is both obedient and needful’ (Dean, 1999, p. 76).
Therefore, pastoralism can be seen to be an exercise in extending power over
those in need of welfare by maintaining and reinforcing the dependency and
disenfranchisement of the poor, rather than provision of rights for the
citizenry.
Under this pastoral model, the state takes on the role of benefactor to
those in need, rather than acting as a facilitator for citizen’s rights. The
recent neo-Liberal and neo-Conservative assault on the welfare state, which
combines religious fundamentalism with a desire to ‘roll back the state’, can
be seen as an example of the politics of the ‘New Right’ which emerged as a
neo-Liberal critique of the concept of ‘cradle to grave’ welfare state
provision. However, the Left’s reliance on the welfare state as a means of
maintaining power can also be seen as an aspect of pastoral power.
Under these two competing agendas, a paternalistic form of pastoralism
as a controlled and limited form of welfare has become embedded within the
political system that contemporary politics can be understood through an
examination of the positions taken for or against the welfare state by
modern political parties. Again, the recognition of the potential of the
creative impulse of humanity as extolled by Marx’s concept of ‘species
being’ (Marx, 1996) is denied, to be replaced by a form of pastoral welfarism

which ‘proposed solidarity between rich and poor as a potent analogue of
the relation between God and sinner, and penitents giving alms for venial
sins’ (Dean, 1999, p. 80).
This extent of religious or pastoral influence exercised on the evolution of
political power over the centuries is also problematic due to the traditional
religious reductionism which maintained authority while marginalising large
sectors of society such as women, children and the poor from the structures
of power which churches developed from their pastoral agendas. In many
ways, the development of modern welfarism has underpinned the margin-
alisation of these groups in the guise of maintaining welfare provision for

those on the margins of society.
This reinforcement of marginalisation and exclusion is characteristic of
the contemporary approach to welfare, while ideological debates about the
nature of provision rarely include agendas of empowerment, which would
address this exclusion. Dean sets out Foucault’s perspective on the issue of
the welfare state by dividing the wider populace into the following two
categories:
i) Shepherd–Flock: ‘the living being’ with individual needs which must be
‘integrated within complex forms of social solidarity’.
ii) City–Citizenry: ‘the individual as citizen’ with ‘freedoms and rights
within the legal and political structure of the political community’ on an
equal basis with all other citizens (Dean, 1999, p. 82).
In many ways, these distinctions create the foundation for what was once
the central ideological debate in Western democracies: the view that the
public constituted a citizenry with rights which were then reflected in
the provisions of the welfare state as held by the Left as opposed to the
Right’s perspective that markets were sacrosanct and that welfarism could
unbalance the moral and political order of society. This distinction was
blurred by the rise of neo-Liberal and ‘New Right’ thinking and the
subsequent emergence of ‘Third Way’ politics, which revised traditional
understandings of welfarism by introducing public/private partnerships into
the equation. By introducing the corporate sector into the welfare debate,
contemporary politics has established a further category to Foucault’s
Shepherd–Citizen equation, as a form of corporate welfarism has emerged.
This corporate approach further marginalises non-economic actors and
creates a multi-tiered society.
Moreover, this multi-tiered society begets further layers of bureaucracy as
a Weberian rationalisation process emerges from the cycles of governance.
One area of rationalised governance, which Dean describes as impacting

on the ‘pastorate’, is policing. As bureaucratic rationalisation creates a
‘reason of state’ (Dean, 1999, p. 86), this governmental rationale
manifests itself through political expediency. Reason of state is invoked
and attributed to issues of state security when normal laws or rights are
suspended in the event of political crisis. Thus, when policing strategies are
called into question, it is sometimes defended or excused by reason of state
security.
Therefore, reason of state and strength of state (security) are augmented
by a layer of governance, which in contemporary society is represented by
the police. However, the origins of policing are found in the twin projects of
keeping the peace and the protection of private property – both of which are
central to the preservation of law and order within the state. This concern
with state control of the activities of its citizenry is an element of multi-
layered and multi-agency governance. Policing plays a role in the
maintenance of good governance within the state, something which can be
understood by the following quotes:
The object of police is to keep a community thriving, so that its subjects may prosper,
and to prevent anything hindering the common good. (Dean, 1999, p. 90)
At first police ordinances dealt primarily with ‘sumptuary’ problems of the blurring of
distinctions between the estates, such as the wearing of extravagant clothing y and the
behaviour of servants and journeymen towards their masters. (Knemeyer, 1980, p. 174)
As municipalities and sovereign city states emerged, so too did the elements
of local governance which dealt with the mechanisms of an emergent legal
system with its inherent policing infrastructure. This devolution of power
from the central ruling elite of the state through to the police represents a
process of civilisation as understood by Elias; however, this process is also a
form of governmentality, and its devolved nature lends itself to legitimised
regional forms of control. The following section will examine some of the key
thinkers in sociology, Merton and Elias in relation to the structures and
functions which underpin conduct throughout society.
2.9. ELIAS AND THE CIVILISING PROCESS

Elias’s theory of the civilising process is important for the study of social
control as he puts forward valuable explanations of society’s level of
tolerance towards criminal behaviour. The two concepts, which are
prevalent for criminology, are what Elias calls ‘development’ and the
‘immanent dynamics of figurations’. The term figuration as employed by

Elias refers to a web of interdependent human beings who like all other
aspects of known reality figurations are inherently processual (Dunning,
1992). What Elias means by ‘immanent dynamics’ is that the dynamics of a
social figuration are embedded in its structure and furthermore in the make-
up and actions of the people who comprise it.
Dunning (1992) states that human beings always live together and that
their patterns of interdependency as well as the ways in which their actions
intertwine as they attempt to secure their ‘shared and conflicting ends’ are
the structure of figuration that they form. He contends that struggles with
and among such groups for the control over such examples as the economy,
the state, goods and services, and production are all crucial connections
for Elias’s concepts of the ‘immanent dynamics of figurations’ and
‘development’.
These struggles are largely influenced by developmental factors such as
the length and shape of the chains of interdependency within a particular
society and with other societies, and the balance between the pressures of
society in order for security, control and stability. The central observation
which Elias makes through his theory of the civilising process is that
Western societies since the Middle Ages have experienced a growth in the
refinement of manners and social constraints. The refinement of manners is
self-explanatory, but by social constraints, Elias is referring to the increase
in the amount of social pressure on people to exercise a more even self-
control over their feelings in the field of social relations. This has important
implications for the study of social control and restorative justice, as it
can provide a valuable insight into the habitus of victims and offenders
explain why they may behave or react in a particular manner at a
conference/caution.
This section will discuss Elias’s and Dunning’s contention that restoration
emerges as part of a ‘civilising process’. Elias presents two key concepts,
which are important in order to understand his theory of the ‘civilising
process’. The two concepts are what he calls ‘development’ and the
‘immanent dynamics of figurations’. The term figuration as employed by
Elias refers to a web of interdependent human beings who like all other
aspects of known reality figurations are inherently processual (Dunning,
1992). Elias views life itself as a process, and it is human beings who form
figurations and they not only are interdependent on each other but also have
to act and interact not only with themselves but also with the rest of nature
to secure their own survival and furthermore the production and
reproduction of life itself.
Elias further believes that over time the actions of human beings become
intertwined and this unintentionally produces change. Dunning contends
that the concept of development refers in a minimum sense to a change
towards higher levels of differentiation and integration (Dunning, 1992).
Essentially, we can apply these understandings of the civilising process to
the area of restorative conferencing. In so doing, a wider understanding of
the significance of Elias’s ‘web of interdependent human beings’ in both the
‘development’ and ‘immanent dynamics’ categories is created.
The meaning Elias attributes to his concept of ‘immanent dynamics’ is
that the dynamics of a social figuration are embedded in any social structure
such as restorative conferencing and furthermore immanent dynamics

appear in the make-up and actions of the people who participate in events
such as community-orientated events. However, structures and processes are
different in each restorative case, but on the other hand, each of the
participants is not separate from the other and each ‘affects’ the other in the
manner that Tomkins (1962) outlines.
In the same way, the social figurations, which occur in the conferencing
process, are not separate or detached from the participants who comprise
the six conferences detailed in the research. Dunning states that
human beings co-exist through their patterns of interdependency as they
attempt to secure their ‘shared and conflicting ends’ through the structure
of figuration that they form (Dunning, 1992). Again, this process is reflected
in the six-conferencing studies, as the group works to deal with conflict
issues.
In certain cases, the existence of the ‘Functionalist Exchange’ (Leonard &
Kenny, 2010) between individuals or groups in social situations such as
restorative conferencing creates ‘social facilitation’ (Hogg & Vaughan,
2005). Functionalist Exchange is the exchange of social emotions such as
remorse or forgiveness for wrongdoing, based on the functional role of
participants in a restorative conference or event. The creation of the
functional exchange between participants creates the crucial connections for
this process of social facilitation, and restoration.
This social facilitation process is further underpinned by Elias’s concepts
of the ‘immanent dynamics of figurations’ and ‘development’. These
struggles are largely influenced by factors such as the numbers of conference
participants, or through the strengths of the chains of interdependency
within a particular individual group or family of the offender in relation to
their interaction and relationship with those of the victim’s family or
support group. Finally, the degree of self-control that participants exercise
over themselves affects the balance within the conference.
By applying these concepts to the conferencing process, this research

demonstrates that Dunning’s understanding of Elias’s theory of civilising
process forms the cornerstone for understanding social facilitation processes
and the Functionalist Exchange, which takes place as a result. The central
observation, which Elias makes through his theory of the civilising process,
is that Western societies have experienced a growth in the refinement of
manners and social constraints. The refinement of manners is self-
explanatory, but by social constraints Elias is referring to the increase in
the amount of social pressure on people to exercise a more even self-control
over their feelings in the field of social relations.
Mennell contends that Elias through his theory sought to show how the
people in advanced contemporary societies have been able to maintain a
fairly even and stable control over their ‘more spontaneous libidinal,
affective and emotional impulses and over their fluctuating moods’
(Mennell, 1998, p. 14). This would also explain the process of social
facilitation and the reduction of social inhibition (Zajonc, 1965, in Hogg &
Vaughan, 2008), which results in the elucidation of remorse, guilt and shame
during the conferencing process.
From the perspective of Elias’s ‘civilising process’, this applies to the
concept of the functionalist roles maintained in society. In addition, this
understanding also applies to both the individual and family relationships,
which emerge as a result of the ‘Functionalist Exchange’ (Leonard & Kenny,
2010) during the restorative conference. In these situations, such a
Functionalist Exchange can become inhibited or enhanced according to
the size of the group:
Of course, the presence of the victim can leave people in an emotive state; ‘People who
are strongly in the grip of feelings that they cannot control are cases for the hospital or
prison. (Elias, 1986, p. 41)
In addition, remorse must also be elucidated from the offender, as part of

the process of restoration. The production of sorrow, remorse, acceptance
or other aspects of social facilitation involves some risks on behalf of all
participants. This reduction in the participant’s social inhibitions is
described by Elias in the following quote:
Different moods are evoked and perhaps contrasted, such as sorrow and elation,
agitation and piece of mind. Thus the feelings aroused in imaginary situation of human
leisure activity are the siblings of those aroused in real life, situations, that is what the
expression ‘mimetic’ means but the latter are linked to the never ending risks and perils
of fragile human life, while the former momentarily lift the burden of risks and threats,
great or small, surrounding human existence. (Elias, 1986, p. 42)
This expression of emotion for many participants in restorative

conferencing is a liberating experience because in society at large many
people are more isolated and have very few ‘opportunities for collective
manifestations of strong feelings’ (Elias & Dunning, 1986, p. 43). Within the
conferencing process, there is the sense that the participants have to exercise
different levels of self-control and self-constraint, in order to achieve full
restoration within the group. The points made by Dunning and Elias on
emotions are relevant in relation to the social facilitation of the conferencing
process. Pressures and restraints have always existed and possibly will
always exist in social facilitation processes such as restoration conferencing,
and restorative events provide the participants with the opportunity to

loosen the controls and constraints they place on themselves in relation to
expressing their emotions.
However, Elias contends that a close analysis of the long-term civilising
process indicates that as restraints on people’s behaviour becomes more all
embracing, more even and internalised as a form of self-operating control
that counter moves appear to loosen social and personal constraints (Elias,
1986, p. 66). However, at the same time, Elias acknowledges that an overall
feature of the long-term civilising process is reflected in the way that
emotional exchange occurs. In order to provide a more fulfilling sense of
restoration for participants, it is important that the restorative conference
allows for the fullest expression of anger from the victims and remorse from
offenders that is socially tolerable for participants, which in turn is a part of
the re-civilising process itself. Elias and Dunning also contend that a
realistic level of feelings be maintained throughout the re-civilising process:
If tensions arise in the wider society, if restraints on strong feelings become weakened
there y the level of hostility and hatred between different groups rises in good earnest.
(Elias & Dunning, 1986, p. 43)
Punishment according to Garland is a phenomenon commonly regarded

as a uniform object or event rather than, he states, as a complex set of
interlinked processes and institutions (Garland, 1999). Punishment he
suggests is not a singular entity but rather in itself a social institution, which
embodies and condenses a range of purposes and has a wealth of historical
meaning (Garland, 1999). Early sociological and criminological theorists
such as Durkheim (1904/1950), Merton (1956), Foucault (1977) and in lesser
terms Elias (2000) move back and forth between the different areas in
the penal process, rather than producing different interpretations of the
same thing.
With the exception of studies of the ‘institutions of imprisonment’ (see

Goffman, 1961; Morris & Morris, 1963), the body of work is uneven and
disparate in quality, resulting in a diverse range of sociological explanations,
characterisations and intellectual traditions that adopt different angles of
approach to the study of punishment. However, whilst there is little
coherence when all of these works are put together, the common thread
between them is that they all accept that certain social forces can cause or
influence criminal behaviour (Garland, 1999). As social construction
changes, so does the nature and patterns of control over it (Qvortrup,
Bardy, Sgritta, & Wintersberger et al., 1994).
As previously stated from the sixteenth and seventeenth centuries

onwards, childhood emerged as a social construction distinct from
adulthood. As a result of the institutionalisation of childhood (Qvortrup
et al., 1994; Ariès, 1996; James, Jenks, & Prout, 1998), it is not surprising
that there has been adverse affects in the juvenile justice system where
complex and at times controversial changes have occurred down through
the years (Muncie, 2002). It is my aim in this section to critically review the
history of the juvenile justice system from the nineteenth century to the
present day.
2.10. SOCIAL FUNCTIONS AND THE COMMUNITY
The next section will demonstrate how the social control shown in Elias’s
understanding of civilising and decivilising processes can be applied to the
family. In order to do this, Parson’s and Marx’s theories of the
organisational role of the family will be explored. The section will also
examine the significance of what this research defines as the ‘Functionalist
Exchange’, which underpins the socialisation process surrounding crime and
deviance. This Functionalist Exchange can be understood by applying a
functionalist theoretical perspective to the various roles that are taken on
during the socialisation process. Parsons has provided one of the most
enduring and comprehensive analyses of that key functionalist group, the
family. In his view the family is seen as a unit that performs various
functions within the wider pattern of the social organisation of society.
The functions associated with marriage and the family are often described
as sexual, reproductive, economic and socialisation functions. Firstly,
socialisation; when children learn the cultural norms of the society into
which they are born, the process is referred to as primary socialisation.
Because this process happens during a child’s early years, the family is
considered hugely important for the development of human personality.

Secondly, the family assumes responsibility for the regulation of sexual
activity. Every culture regulates the sexual activity in the interest of
maintaining kinship organisation and property rights.
Different societies have various rules regarding who can marry whom, but
they usually apply the incest taboo to close relatives. Apart from the fact
that reproduction could have negative mental and physical effects on
offspring, it also minimises sexual competition between families. By
restricting sexual relations, people are forced to marry outside their
immediate families to form broader alliances and keeps kinship intact.
Thirdly, the family provides the social placement for its members. A child is
socialised by race, ethnicity, religion and social class that is ascribed at birth
through the family. Families permit the transmission of wealth and status
from parent to children. According to the functionalist perspective the
family also provides material and emotional security. Family members are
dependent on each other economically and emotionally.
From a Marxist standpoint the family is seen as an institution that is
involved in ‘promoting dominant societal values and perpetuating the
exploitation of subordinate groups by upholding the norms and values of
capitalist society’. The Marxist perspective views the role of the family as
one that is routed in the social reproduction of inequality. This occurs
through the socialisation of children, where the family is seen as reproducing
both labour and power, and a false ideology, which keeps the capitalist
system going. ‘Families thus support the concentration of wealth and
reproduce the class structure in each succeeding generation’. Functionalist
and Marxist theories have a certain amount in common. They share the
structuralist assumption that social institutions are inter-related and see the
family as having to adapt to some degree to other institutions.
Functionalist and Marxist theories also have some congruence in relation
to the argument that the family plays an important role in biological
reproduction, and in social reproduction such as in maintaining, replenish-
ing and transmitting social values and structures from one generation to
another, in the socialising process. However, both theories have different
points of origin for this debate, and both focus on different aspects of the
social world and extol very different perspectives on the family.
Functionalism locates the modern industrial order as a central part of the
frame of reference for society and sees the family as meeting important
social requirements within that societal framework. Marxists start from the
idea of class struggle and division and see the family as reproducing
capitalist values and relations, whereas functionalist theory has provided
support for conventional family values. Marxist theories have developed a

critical analysis of the patriarchal structure of the traditional family unit.
2.11. GOVERNMENTALITY AND JUSTICE
In his 1999 text Governmentality, Mitchell Dean sets out a critique of the
pastoral state by way of an exploration of Foucault’s concept of
governmentality as a framework for understanding three key themes: the
neo-Liberal critique of the welfare state, the collapse of ‘existing socialism’
in Eastern Europe and the eroding of rights won by the New Left in the
1960s. The welfare state has come to be diminished at the same time as the
New Right agenda for social control has emerged as a central plank of the
‘law and order’ agenda. For Dean, any Foucauldian account of ‘govern-
mentality’ in contemporary society must retain this realisation of the
existence of the nodes of governance which lie within the ‘particular
mentalities, arts and regimes y the conduct of conduct’ (Dean, 1999, p. 2)
of the administrative process.
This form of governmentality provides a valid context for the role of state
in the globalised era; therefore, as the power of nation-state is restricted, the
meanings surrounding governance have altered. ‘Government’ now involves
layers of bureaucracy with power retained by a coterie at the heart of the
ruling elite. As globalisation has come to challenge the wider influence of
the state, power has been retained at the core of the administrative process.
The combination of this regrouping of power within the hands of core elites
has occurred alongside the prevailing ideological assault on the welfare
state, leading to extensive marginalisation within an increasingly fractious
society. Authority (as opposed to power) is then derived from the various
agencies and bodies that recreate the language of governmentality, ‘invoking
particular forms of truth, and using definite resources, means and
techniques’ (ibid., p. 3).
Furthermore, the emergence of corporate and civil society sectors as
active participants in the multi-layered field of governance has led to the
creation of new forms of governance identities, which alongside the welfare
state include a myriad of interest-driven entities in civil society including
the economic (both wealth and poverty orientated), legal, gendered or
feminist, trade union, ethnic/religious, youth or ageing, environmental and
pastoral/care sectors. Additional administrative and bureaucratic elements
augment these entities, adding to the array of governmental forces. New
discourses of governmentality have subsequently emerged from each of
these sectors; policy is then rewritten accordingly to suit each particularistic

agenda as identities are re-branded as varying ideological groups attain
degrees of power.
Therefore, as Foucault has established, ‘governmentality’ becomes the
evolutionary process by which the behaviours and meanings of government
become established and legitimated. This aspect of legitimation is
comparable with Elias’s ‘civilising process’; essentially the etiquette of
government is born of this transformative development. Furthermore, the
process of establishing modes of governmentality is profoundly sociological;
therefore, cultural and pluralistic forms of expression vie with established
political understandings in the creation of the norms and patterns of this

multi-agency form of administrative rule. Consequentially, this network of
relevant agencies creates competition within policy frameworks despite these
agencies having shared interests and goals.
Moreover, a new form of governance for these competing levels of
government is required, one which attempts to rationalise the variety of
discourses emerging from the processes of a dichotomous and sometimes
adversarial method of policy formation. It is the all-consuming calculation
of this etiquette of rules which has come to embody the problems facing
contemporary forms of governance. If we also include supra-state directives
from bodies such as the European Union, it soon becomes clear that a
veritable constellation of entities and agencies all vie for a share of the
processes and outcomes of existing governance models. All forms of ethical
and value-driven conduct is then validated by the competing sectors and
interests involved in governance. In the next chapter, we will examine two
such sectional interests: the ‘pastoral’ sector and their creation of a
governmental approach to the role of the police within the context of the
workings of the state.
2.12. SUMMARY
The above sections have discussed the theoretical framework which

surrounds understandings of key themes such as deviance, justice and
governmentality. The discussion presented represents a wider ranging
collection of theories and arguments about the responses to questions of
justice in society. By presenting this debate in a thematic manner, we have
broached the key critical questions about justice in society as they have been
addressed in various disciplines. We will now attempt to address these
justice-related issues in the following chapter on restorative justice.

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THE THEORIES OF JUSTICE

2.1. AN INTRODUCTION TO THE THEORIES

began with what came to be known as the Enlightenment, ultimately

challenged the autocratic monarchies of Europe and the doctrine of the

2.2. LOCKE’S THEORY OF KNOWLEDGE

According to Locke’s theory, some items of knowledge are not acquired

From Locke’s perspective, the legitimation of state power derives from

Laslett argues that Locke’s understanding of property appears to

Although it is not full egalitarian, it does provide some limit to equality

Enlightenment is man’s emergence from his incurred immaturity. Immaturity is the

Kant’s structure of morality and principles of justice show how his

there is a common tension between duty and desire.

justice as welfare, the satisfaction of needs or justice as self-actualisation,

It is evident from Mill’s writings that he was concerned with protecting

As the twentieth century progressed, deontological Liberalism gave way

Deontological Liberalism appeared to represent the state in decline.

He furthers this argument by stating that principles of justice become

According to McCougbrey and White, liberty and justice appear to lose

(1) Enunciation of the principles of justice from the original position.

According to Hudson (2003), Rawl’s arguments about the principles of

authorities, following properly constituted rules (Dworkin, 1986, p. 198).

they need (Hudson, 2003, p. 22).

2.3. LIBERALISM AND PUNITIVENESS

All forms of Liberalism support that offenders should be punished.

Punishment, according to Hudson (2003) and others, is a negative sanction

established the idea of rights as a practical process of liberty and a

2.5. DURKHIEM, FOUCAULT AND JUSTICE

transformation was based on the members of that society’s ability to explain

modern prison with examples of the prisoner’s timetable, which is

application and targets which may be identiﬁed with an institution or an

society. The ‘Disney World’ example is characterised as an exemplar of

2.6. CRIME AND DEVIANCE IN THE COMMUNITY

Merton suggests that criminal and rule-breaking behaviour results from

(Merton, 1938, p. 216). By this he is referring to societies where a strong

phenomenon. Merton believes that young people from working class

cultural exaggeration of the success goal’.

larceny. In criminology the term juvenile delinquent is typically used to

than others depending on the individual. Nonetheless, poor funding for

2.7. THE ANOMIC SOCIETY

Signiﬁcant theoretical interest in the nature and origins of delinquency was

(1965) contends that delinquency can be viewed as a symptom of

Hendrick (2002) argues that juvenile delinquency in common with crime

2.8. PASTORALISM AND COMMUNITY JUSTICE

According to Dean, this concept provides us with an understanding of the

being’ (Marx, 1996) is denied, to be replaced by a form of pastoral welfarism

alisation of these groups in the guise of maintaining welfare provision for

One area of rationalised governance, which Dean describes as impacting

2.9. ELIAS AND THE CIVILISING PROCESS

‘immanent dynamics of ﬁgurations’. The term ﬁguration as employed by

such as restorative conferencing and furthermore immanent dynamics

By applying these concepts to the conferencing process, this research

In addition, remorse must also be elucidated from the offender, as part of

This expression of emotion for many participants in restorative

and restorative events provide the participants with the opportunity to

Punishment according to Garland is a phenomenon commonly regarded

With the exception of studies of the ‘institutions of imprisonment’ (see

As previously stated from the sixteenth and seventeenth centuries

2.10. SOCIAL FUNCTIONS AND THE COMMUNITY

considered hugely important for the development of human personality.