Thoughts on Popular Justice

Reflections on Foucault's ideas in Power/Knowledge

One of the books I recently finished reading was a collection of interviews and lectures given by Michael Foucault. The essays and interviews were compiled into a book entitled Power/Knowledge which is a great read, especially for those with an interest in the role of power and knowledge in structures of the state and the institutions that buffer its legitimacy.

One of the essays in that collection, On Popular Justice: A Discussion with Maoists, really caught my attention. In it, Foucault was arguing that the institution of courts is an extension of the state. Courts, he says, along with their layout, provide us with the illusion that justice exists above real social relations. Justice is embodied in a ‘third party’, a judge, who is supposed to be seen as a neutral disperser, and therefore, gatekeeper, of Justice.

The displacement of justice from society to a ‘third party’ reinforces the state as a buffer between the people and is the exact opposite of popular justice. When asked what justice may look like without a ‘third party’ Foucault provides no answer, only that that form of dispensing justice will probably be found within a revolutionary movement.

Conservative Radicals

As the title suggests, Foucault was speaking with Maoists. The discussion was placed in the context of socialist revolution where, as is usually the case, members of the oppressive class (landowners and capitalists who have made their profits through the worst forms of exploitation) are subjected to acts of ‘popular justice’ — usually what we would call extrajudicial killing. Although popular justice is never explicitly defined, it’s meaning can be understood through this excerpt as relayed by Foucault.

“In the case of popular justice you do not have three elements, you have the masses and their enemies. Furthermore, the masses, when they perceive somebody to be an enemy, when they decide to punish this enemy — or to re-educate him — do not rely on an abstract universal idea of justice, they rely on their own experience, that of the injuries they have suffered, that of the way in which they have been wronged, in which they have been oppressed; and finally, their decision is not an authoritative one, that is, they are not backed up by a state apparatus which has the power to enforce their decisions, they purely and simply carry them out”

Popular justice then finds its meaning in the absence of an abstracted notion of Justice. Popular Justice is subjective justice and is justice in practice — in execution (carrying out punishment).

This may come across as a highly uncivilized notion of justice, and it is indeed a far cry from what we have come to know as justice mitigated by tomes to laws, judges, appeal systems, and the fundamental idea that an individual is innocent until proven guilty. But Foucault would argue that this is nothing but dressing on an implicitly sinister legal system that has no sense of neutrality whatsoever.

For Foucault, the legal system has three functions. The first is “to force the people to accept their status as proletarians and the conditions for the exploitation of the proletariat”. The second is that the “penal system was aimed, very specifically, against the most mobile, the most excitable, the ‘violent’ elements among the common people”. Finally, “The third role of the penal system: to make the proletariat see the non-proletarianised people as marginal, dangerous, immoral, a menace to society as a whole, the dregs of the population, trash, the ‘mob’". In this way, it becomes impossible to see the courts as a neutral ground where ‘proper’ judgment and punishment is dealt, especially since the role of the courts first and foremost is to uphold the domain of private property and the bourgeois class. As such the court system itself is an extension of bourgeois ideology and no form of popular justice can occur through a ‘court’ system.

What is most interesting here is that Foucault is using this rhetoric not to attack a defender of the bourgeois class, but to criticize Maoist uses of the ‘peoples court’. Foucault, in his critique, makes the Maoists come across as conservative for holding on to ‘bourgeois ways’.

Revolution vs. Justice

Through this exchange, Maoists raise several important points. The first is that the threat of uncontrollable bloodletting through a revolution can serve to hinder and discredit a revolution as violence, as it often does, offends the sensibility of those who believe in the dominant narrative of a ‘neutral’ justice system. Second is the simple fact that those seen as ‘enemies of the people’, who often receive the brunt of popular justice, may be useful in reconstruction. It is them that usually have the knowhow and skills needed, especially in underdeveloped countries such as China and Russia (at the rime of their respective revolutions).

This is summarized when Victor, one of the Maoists, says:

“The mass movement on its own is not enough. This is because there are contradictions among the masses. These contradictions within a popular movement can easily cause its development to take a wrong course, to the extent that the enemy takes advantage of them. So it is necessary for there to be an organisation to regulate the course of popular justice, to give it direction”

The organization that would give justice this direction would be the party, which, as the leader of the revolution, would be in a position to diffuse these contradictions among the masses to safeguard the revolution.

The Maoists, leaning on Marx, also claim that it is natural that the concept of justice will be marred by bourgeois ideology as no transformation happens in a flick of a switch. A transitionary period is necessary for which the only form that justice can take is through the ‘court’ — a peoples court.

The role of the people's court would be to safeguard the revolution while providing a sense of justice to those that have been wronged.

It is here that Foucault accuses the Maoists of opening the door to the structure of the state. Even if it is a peoples court, as opposed to a bourgeois court, there remains this assumption that it is the court that has an exclusive understanding of justice and maintains a firm grip of executive capacities. Why is it that a state or party sanctioned execution should be seen as more legitimate than a popular execution at the hands of those who were immediately wronged?

Justice in Practice

It would be helpful if we took a step back here and tried to look at justice away from the abstraction of its popular or ‘legal’ forms and break it down to an individual perspective.

When we think about Justice, there is usually a general feeling of ‘setting things right’. Justice is a form of righting an injustice or seeking restitution when we feel that we have been ‘wronged’. With this sort of definition, it becomes clear that the concept of justice is implicitly subjective. What I view as crossing my threshold of acceptability and what I view as proper forms of restitution will be wholly different than someone else's. Furthermore, my conception of justice will vary wildly if I am the person who was wronged or if it was someone else. My perception of justice will even change if I am reflecting on someone I know being wronged or a stranger. More importantly, my perception of justice will change if I were the one who had to execute whatever I though justice should look like.

Our justice system pretends that it is out to solve this subjectivity with an objective interpretation of justice, law, and applies it the same way to everyone. By doing this it makes us feel that we are all on an equal playing field. But where does this power to decide what is or is not proper restitution come from? More importantly, where does the decision come from about what is considered an injustice.

Foucault has already shown how courts are there to first and foremost keep the proletariat submissive, as such property rights are the most important ones. But there are many graver injustices to us, individually, than, let's say, a homeless person sleeping outside a private bank. Most of us would say that the injustice there is homelessness and not the violation of property rights. Paradoxically, it is this sense of ‘objectivity’ that make the concepts of courts appealing to us even though we can clearly see how upholding ‘objective’ laws can lead to furthering injustice.

It’s important though to understand that this ‘objectivity’ is not meant to hold us all to the same standards. Rather it is a way to teach us what the standards are, what is and is not permissible behaviour. The court is less concerned with how we treat each other (what we see as maintaining the peace) and more concerned with us not challenging the underlying system it is built on. This ‘objectivity’ then plays an ideological role by dictating what we should view as injustice.

Once we internalize these ‘objective’ rules the court rarely needs to be used as an implement of justice as we would have become our own court system and policemen. This internalization does not mean that we become more ‘just’, just that we have been reduced to docile non-social actors with a wrong understanding of what justice is.

Ideology and Marx

The Marxist tradition is seen by and large as a tool to help unmask social relations to reveal the true economic machinations behind them. Foucault follows in this tradition but adds certain nuances to the process as we have seen him do here.

However, even if Foucault was successful at unmasking the role of the courts under capitalist conditions, what would it look like in a post-capitalist world outside of the economic restrictions that much of Marx’s work is based on. Well, then we would need to remarry the concept of justice with its social roots, with its subjectivity.

It is worth saying here that crime itself will have a very different meaning in a socialist community. This already fundamentally alters our conception of justice. If decisions about the production and distribution of goods are being made democratically then it is only natural that subjective concepts of justice would be implicitly part of those decision making processes. Justice, then, becomes an implicit part of life as opposed to a set process that is sought in a specific institution — outside of society. But what about personal crimes, crimes of passion, assault, rape etc.?

Well, as we have already shown, greater democracy already means that concepts of justice no longer need an external body to manage it but that it becomes implicit and ingrained in society itself (which is where it already is). The removal of the state institution of law would mean that self-policing transforms into a reflective and internal understanding of justice which would, hopefully, reduce such crimes drastically. This is not to be utopian but with the removal of ‘internalized’ concepts of justice with a participatory concept of justice, justice regains its position as a mediator between the individual and society, not society and the state.

Nevertheless, crimes are bound to arise, what will happen then if we do not want to open the door to a body that exists outside of ‘the people’. What comes to mind here is the concept of mediation.

Through mediation, a victim and the accused come together and, with the help of a mediator chosen by the two (or potentially democratically elected by a community), attempt to resolve the dispute. The dispute is discussed in a transparent manner so that all members are aware of it and, hopefully, an agreement on what would constitute justice (isolation, reeducation, material repayment) is reached.

With mediation, two things are achieved. First, the concept of objective law is removed. Second, the power of judicial execution is also removed making the act of reconciling a genuine one based on the agency of two individuals. The democratic component of a mediator also means that a sense of ‘neutrality’ is maintained even though that neutrality has no executive function bu has a role to elaborate, reason, and potentially provide recommendations to the two parties. Communities would then elect mediators based on who they think poses the best of qualities of ‘Justness’.

But all of this is contingent to an accused party agreeing to mediation. What if they do not agree that they have been unjust to someone? Well, in a society where justice is socially integrated, a simple accusation may be enough to result in a shunning of someone. Alternatively, a person can seek their own justice outside of mediation and directly through their own actions — by being their own executor. Becoming your own executor also carries social risks as you do not want to be seen as being unjust.

All of this may seem wishy-washy and that is because it is an accurate reflection of what Justice inherently is, a subjective and social process.

Backed by Popular Demand

mediation gives us an interesting perspective on ‘justice’ after the revolution. But what about during? That is where the concept of popular justice comes from, it is when, as Foucault says, “you have the masses and their enemies”.

Well, do we not see the same dynamic here as we did in our individual case? A popular act of justice coming from the masses already means that it reflects the popular appeal of such an action. And if the social conditions allow for such an action (the action would not happen if they did not) then where is the problem? One may jump to the defence of the person on the receiving end of this justice. But to do so would be to infantilize the masses, and is that not bourgeois morality at its finest? A Hobbesian read on the people that still need a sovereign, a baby sitter. Do we not trust people to know what Justice implicitly is? We certainly don’t look at ourselves as ignorant on the concept, why would we generalise it to others?

Here we find ourselves in a catch-22. It is true that people’s implicit understanding of justice may be inadequate, but it is only so because they exist under a system that alienates justice from social life. So are the Maoists right in their call for the need of a peoples court? I would say no. What this does is highlight the need for a deeper understanding of justice and the incorporation of that understanding into the work being done that forges the way for revolution. Justice should not be an afterthought of a revolution but part of the process which brings us there.

Only by returning justice to its original subjective and social form, by unmasking it, do we have a chance of understanding is complexities and meaning.