Punishing Monsters, Judging Aliens: Justice at the Borders of Community
| Author | Barbara Hudson |
| DOI | 10.1375/acri.39.2.232 |
| Published date | 01 August 2006 |
| Date | 01 August 2006 |
232 THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 39 NUMBER 2 2006 PP.232–247
Address for correspondence: Barbara Hudson, Lancashire Law School, University of Central
Lancashire, Preston Pr1 2HE, UK. E-mail: bahudson@uclan.ac.uk
Punishing Monsters, Judging Aliens:
Justice at the Borders of Community
Barbara Hudson
University of Central Lancashire, United Kingdom
The article asks the questions of how we could, and why we should, do
justice to people who are outside the limits of our geographical,
political, moral or cognitive communities.After looking at political, moral
and criminological aspects of the relationship between community and
justice, the article argues that the tendency in late-modern societies is to
treat those we cannot understand or whose presence among us is
unsought-for — aliens — as if they were dangerous and other than
human — monsters.The ar ticle then draws on recent work by Bauman,
Derrida, Habermas,and Ror ty to look for new ideas which could form a
basis for theories of justice which could move beyond the borders of
community. It is suggested that the ethics of hospitality espoused by these
writers is the best basis currently available for a form of justice which
could react to the stranger without hostility.
In this article I want to look at one aspect of the relationship between justice and
community. Much criminological and penological attention is given to different
forms of community justice; what I want to do is raise some questions about the
problems and possibilities of dealing justly with those who are at the borders of
community, and indeed who may be beyond community. The community in
question may be a geo-political community (the city, the nation, western liberal
democracies), or it may be a moral community (right-minded citizens). I will first
discuss some aspects of the relationship between justice and community and then
argue that this relationship now presents a problematic limitation to the scope for
‘doing justice’. I then offer some thoughts about the possibility of overcoming this
limitation. Although I don’t offer polished solutions, my remarks will be hints and
signposts as to where we might look for answers, or at least, where we might find
people thinking about the same questions.
Reacting to the sentence of death passed on Adolf Eichmann at the conclusion
of his trial in Israel, Martin Buber said that he felt ‘no pity at all’ for Eichmann,
because he could feel pity ‘only for those whose actions I understand in my heart’,
and he repeated what he had said many years previously in Germany, that he had
‘only in a formal sense a common humanity with those who took part’ in the acts of
the Third Reich (Arendt, 1994, p. 251).
While, thankfully, the occasions on which jurists have to pass sentence on
people for participation in events as grotesque as the organisation of transports and
logistics for the implementation of Hitler’s final solution are rare, there are many
occasions when judges and magistrates have to pass sentence on persons for whom
they have no understanding or sympathy. Liberal jurists are increasingly called to
participate in international tribunals that deal with events that are approaching the
horrors of the holocaust — genocide, war crimes and human rights violations.
Western lawyers’ participation in the Rwandan genocide tribunals is one prominent
example of this phenomenon. International tribunals are now well established and
have a cadre of specialist lawyers, but lawyers in national jurisdictions are having to
deal with new kinds of cases. A case that includes many of the elements with which
this article is concerned and which has been dealt with under United Kingdom
(UK) rather than international jurisdiction is that of Faryadi Sawar Zardad, an
Afghani convicted by an English court of ‘cruel and merciless torture and hostage
taking’ (Laville, 2005). In this case the court had to decide a case in which the
offender and most of the victims were Afghani, and the crimes were committed in
Afghanistan. This is the first case to be brought under the United Nations torture
convention, which obliges countries finding a suspected torturer within their juris-
diction to investigate and, if evidence is found, to prosecute. Sardad, a member of
the mujahideen which fought against the Soviet occupation, fled to avoid capture by
the Taliban and was seeking asylum in the UK.
It is not only participation in international tribunals, or cases arising from
overseas conflicts, with which I am concerned. Law-and-order policies generally,
refugee and immigration policies, sentencing and other domestic criminal justice
decision-making take place in a context of ever (or so it seems) diminishing sympa-
thy and understanding for those who transgress our community’s moral codes, or
who appeal to us for justice from beyond the boundaries of our moral and geo-politi-
cal community.
The question with which I am concerned in my current work, and the question
which lies at the heart of my recently published book Justice in the Risk Society
(Hudson, 2003) is this: How can we provide justice for those with whom we feel no
sympathy and whose actions we cannot understand? In the book, I started with the
idea of risk, but every chapter brought me to the issue of the relationship between
community and justice, and it is this relationship that I want to focus on now.
Justice and Community
There are three senses in which justice is community justice that are relevant to my
concerns here, which are, roughly, political, moral and criminological senses.
First of all, theories of justice in liberal societies are concerned with the political
question of how to establish principles and institutions of justice within communi-
ties. The most influential of contemporary liberal theorists, John Rawls, makes this
explicit, and emphasises the political nature of his theories more with every new
work. In responses to critics and in subsequent revisions to his great work A Theory
of Justice (1971) he makes it clear that he is concerned to find principles for
concrete institutions in actually existing societies (Rawls, 1999, 2001). Other
important contemporary liberal theorists, for example, Dworkin (1986), also make
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JUSTICE AT THE BORDERS OF COMMUNITY
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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