Three Faces of Justice and the Management of Change
| Date | 01 January 2000 |
| DOI | http://doi.org/10.1111/1468-2230.00250 |
| Published date | 01 January 2000 |
| Author | Sheldon Leader |
Three Faces of Justice and the Management of Change
Sheldon Leader*
The apparatus of legal principles we use has, far more than we realise,
transformed the way we think about the control of private power in the name of
social justice. The actual sort of equity that the legal and political system is
searching for is not reflected in our major political theories, nor indeed in the
official rhetoric of many such systems themselves. The reason for this mismatch
has to do with the need to accomodate change – a space opened by the law and
unacknowledged by theory.
This article sets out the current theoretical frameworks within which the
regulation of private power is analysed, and it contrasts these with a different
approach to the problem of justice at work in employment and corporate law that
does not find its way into theory. Once that approach is given a formulation, its
place within a larger theory of justice is proposed, and its wider implications for
the relationship between state and civil society are investigated.
My aim here is to explore certain links between justice and social change. The
concern about change is focused on a particular domain of civil society in which
economic life goes on: working and investing in enterprises as diverse as
commercial corporations and workers’ co-operatives. The concern about justice is
focused on its potential ‘horizontal’ character, where many legal and political
systems are trying to control abuses of power in institutions that are nominally
private but whose particular control over portions of our lives makes them publicly
accountable.
My argument is that when these two concerns are put together, the one about the
control of private power and the other the control of change, we are forced to re-
think some of our fundamental ideas about democracy itself and the quality of
justice it seeks. The apparatus of legal and political principles we use to deal with
power within civil society has, far more than we realise, transformed the way we
think about the control of power in the name of social justice. The actual sort of
equity that the legal and political system is searching for is not reflected in our
major political theories, nor indeed in the official rhetoric of many such systems
themselves. The reason for this mismatch has to do with the need to accommodate
organisational change – a space we shall see being awkwardly opened by the law
and unacknowledged by theory.
This space presently exists as an uncertain mix of principles, and for this
uncertainty we pay a price: the law sets out, in the minds of its framers, to protect
ßThe Modern Law Review Limited 2000 (MLR 63:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 55
*School of Law, University of Essex.
Thanks to Professor Antoine Lyon-Caen of the University of Paris X and his students, including
particularly M. Pascal Lockiec. They subjected these arguments to close scrutiny in seminar work. Thanks
for similar treatment from my colleagues at Essex, Janet Dine, Steve Anderman, Nick Bernard, Bill
Bowring, Tom Sorell, and Bob Watt. Thanks also to Ernest and Lorraine Weinrib and to the other
participants in the University of Toronto Law School Legal Theory Workshop; to Chantal Mouffe and the
Centre for the Study of Democracy, University of Westminster; to the members of the Faculty Forum,
Brooklyn Law School and to Hugh Collins for his help with several drafts.
the weak from the strong, but subverts that objective with the very tools deployed
to try to reach it. The reason for this failure is not that the law is poorly enforced, or
in the grip of special interests, but rather that it contains a tacit principle of social
justice that cuts in an unpredictable way across the official ones. It is a principle, as
was said, that tries to make room for change within organisations, while protecting
certain victims of it. As it stands, however, the principle does a good deal of
damage. We need to control and to supplement it. In failing to do so, democracies
pursue one form of justice that undermines the other types of justice lying at their
foundations.
In order to see this principle and to appreciate its force, I will, in the first section,
try to portray the way private power is understood in those strands of our tradition
of political theory which have been concerned to extend the guarantees of justice
horizontally. The second section, ‘Three kinds of justification and their combined
effect’, will contrast this body of theory, and legal rhetoric that accompanies it,
with the principles of justice that seem to be really at work in the law. These will
be first set out in a relatively abstract way, and then illustrated in two domains
where the need to control of private power is most acute: employment law, and the
law relating corporations and their owners. This will, in the section ‘Priority,
controls, and supplements for functional justification’ point to certain
modifications we might consider in our understanding of the overall relationship
between society and powerful institutions within its midst.
Political theory and private power
The critique of the two-world polity
Most programmes for regulating the abuse of private power begin with a criticism
of a familiar target. The target is a theory which divides the polity into two
domains: one a private, consensual world of relations in civil society, and another
the public domain of relations with the state, governed by guarantees of
fundamental right. The first, private domain is defined in such a way that uses
of power within it become invisible. Thus, a typical two-world argument stipulates
that fundamental rights are designed to prevent the abuse of coercive power; that
only the state exercises coercive power; and that therefore fundamental rights
should not be extended to regulate realms of power lying outside the state.1
The faults with such a two-world position have been identified since the
nineteenth century, and have begun to cross several traditions in political theory.
Currents in modern liberalism, as well as theory that distances itself from
liberalism, both accept that we cannot conceal abuses of power in civil society by
inflating the label of ‘private’ and attaching it to the wrong institutions. Thus,
Rawls in his recent work has argued for the extension of basic liberal rights to
members of powerful groups within civil society.2Similarly, many writers opposed
to rights-based thinking have followed Marx in his denunciation of the double life
he felt one was invited to lead in constitutional democracies, in which the citizen
sees himself as part of a community when thinking of his relationship to the polity
1 For modern examples of this position, see A. Clapham, Human Rights in the Private Sphere (Oxford:
OUP, 1993) 91 ff.
2 See the discussion below.
The Modern Law Review [Vol. 63
56 ßThe Modern Law Review Limited 2000
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