Social Justice Isn't What You Think It Is

by Michael Novak

  These examples challenge the binary oppositions into which social-policy discussions tend to fall. Neither state provision nor leaving those in need bereft of help exhausts the alternatives. In Catholic social teaching, individualism and collectivism are seen not as alternatives but as twin evils, the one reinforcing the other as they squeeze the life out of civil society.13 Providing professional help to people who are poor, weak, or oppressed does not have to create dependency and weaken personal responsibility. Professional help does not have to disempower, pace John McKnight, who shows in the famous example of a bereavement counselor how professional intervention isolates “clients” from circles of support provided by friends and neighbors who have nurtured the grieving for generations. In that example, the grief expert renders a competent community dependent on professional services.14 My examples, on the other hand, show how professional help, even when it is legally mandated, can enable those served to join with others for the common good of family and community, tapping into and building their own cultural and personal resources.

  A social-justice-as-virtue perspective also enables us to recover a focus on what used to be called, in social work, the professional use of self. The character of the social worker, not only her practice theories and methods of practice, shapes the quality of the client-practitioner relationship and so constitutes an important part of the helping process.15

  The virtues work together, talk to, and require each other. Social justice orders the virtues to the common good. For the practitioner, acting with the virtue of social justice requires prudence, humility, courage, self-mastery (temperance), and other virtues that ensure “order in the soul.” No amount of rules and regulations designed to constrain the bureaucratic-professional tendency to overreach can substitute for the practioner’s virtuous character, a formation of the heart.

  The bureaucratic tendency to respond to crises and scandals—a child known to CPS who is left with his mother and subsequently is battered to death by a live-in boyfriend; a child removed from his family who is later abused in foster care—with tighter controls over practice carries a high price. It reduces the practitioner’s room to maneuver, to exercise professional judgment, wisdom, and flexibility. Benestad reminds us of a neglected but consistent theme of all Catholic social teaching, namely, that a just society depends on virtuous citizens.16 Rules and regulations are necessary in social work, for we are fallen, imperfect in character and judgment. But they cannot substitute for the virtues that good practice requires and develops. Social work is, in MacIntyre’s use of the term, a virtue-driven profession.17

  Similar considerations apply to those whom professional helpers aim to assist. Tighter control over families through rules, regulations, and ultimatums cannot adequately substitute for a culture and community that support and build in individuals the virtues they need to meet their moral obligations to their families.

  Empowerment, Coercion, and the Regulatory Pyramid

  FGC merits particular study because it addresses most directly the challenge of exercising social justice while carrying out a regulatory process that has a strong coercive aspect. At the apex of the regulatory process sits the prospect of the permanent removal of children from their parents and the termination of parental rights. The process recognizes the family’s potential to be a site of tyranny but also sees the limits of even the most benevolent state’s capacity to run families or rear children. Both formal and informal systems have advantages and dangers. The legally mandated court system can be rigid, emphasizing the harm done with less attention to setting things right and more to the retributive punishment of wrongdoing. On the other hand, the informal system of care and control can be disproportionate in its response and careless of the rights of due process.

  The regulatory pyramid presented by Braithwaite in the context of restorative justice enables us to understand the relation of two apparently contradictory but essential elements of FGC (and much social work)—empowerment and the context of social control or state coercion. The pyramid shows how, in the complex field of child welfare, combining the empowering aspects of FGC with the coercive power of the state is not necessarily a limitation or contradiction. Rather, empowerment and control are different but necessary and mutually enriching aspects of a dynamic model of state regulation of families to protect children.

  Braithwaite contends that “restorative justice, deterrence and incapacitation are all limited and flawed theories of compliance.”18 Each needs to be understood and applied in a model that includes all three. In his figure entitled “Toward an Integration of Restorative, Deterrent and Incapacitative Justice,” Braithwaite hierarchically orders these concepts and places restorative justice at the base of the pyramid, filling up most of the space.

  Figure 1. “Toward an Integration of Restorative, Deterrent and Incapacitative Justice” adapted from Braithwaite, Restorative Justice, 32.

  This pyramid provides a dynamic model of governmental regulation (whether of a nursing home, a nuclear power station, an insurance company, or a family). By contrast, the formalist approach to regulation seeks to define in advance which problems or failures of compliance require what official responses, and then mandate them in regulations. In responsive regulation, however, there is a presumption, regardless of the seriousness of the offense or violation, in favor of starting official intervention at the base of the pyramid. Deterrence, in the middle of the pyramid, would mean for a business the threat of a fine, but for a family in the CPS system it would mean relative loss of control of their situation as the agency or court imposes solutions. Moving up the pyramid to deterrence and, ultimately, incapacitation, is a response not to the seriousness of the harm done but to the failure to elicit reform and repair at the base with restorative-justice processes. Of course, as with other violent crime—a shooting spree in progress, for example—an immediate move to incapacitation (at least temporary) may be necessary in cases of child abuse where there is imminent and continuing danger to the child.

  The presumption in favor of starting at the base of the pyramid, Braithwaite argues, not only favors less coercive and costly state intervention where possible, but also makes more coercive measures more legitimate when escalation up the pyramid is necessary. This is important because “when regulation is seen as more legitimate, more procedurally fair, compliance with the law is more likely.”19

  By analogy, accreditation of a professional school, whether of law, medicine, nursing, or social work, is a process of required self-regulation through self-study and reform. The accrediting body—for example, the Council on Social Work Education in the case of U.S. baccalaureate and master of social work programs—has a range of escalating options to encourage schools to address concerns and come into compliance, culminating in the rarely used action of withdrawing or denying accredited status. This option is understood by all to be at the Council’s disposal as a last resort, and site visitors and accreditation commissioners work in collegial partnership with schools with the shared aim of avoiding escalation up the regulatory pyramid.

  Applying this model to a business such as a nursing home or insurance company, a regulator would begin to work with the firm’s management at the base of the pyramid. Both management and regulator are aware that if the firm proves unable or unwilling to make the changes needed to come into compliance, the next level of regulation will be more coercive. The initial assumption is that the firm’s management is a “virtuous actor,” with the will and capacity to respond to the regulatory process by taking the steps needed to come into compliance. Regulator and regulated work together to prevent a more coercive regulatory response. At the next level, if management has no wish to cooperate with regulators, it is still assumed to be a “rational actor” who—faced with a fine or other penalty and the threat of being put out of business—will calculate that it is better to comply. At the highest level of the regulatory pyramid, management is assumed to be an “incompetent or irrational actor” who is unable or unwilling
to comply and who therefore needs to be incapacitated by losing its license to operate.

  Applying this model to FGC, we see conferencing as a restorative process at the base of the pyramid. FGC may be seen as a “process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.” 20 Conferencing involves core values as well as processes that entail healing and setting right, moral learning, community and kin participation, respectful dialogue, responsibility, apology, and forgiveness. “So restorative justice is about restoring victims, restoring offenders, and restoring communities. . . . Stakeholder deliberation determines what restoration means in a specific context.”21

  The regulatory pyramid in the context of child welfare and FGC promotes social justice. It requires and develops in practitioners and family members the habits and skills of plural deliberation and working together to come up with solutions and to create, implement, and monitor plans to ensure children’s safety.

  The model assumes that the level of regulation, or the appropriate degree of participation and self-determination of the regulated entity, depends on the virtue of those managing it. As Figure 1 illustrates, at the base of the pyramid the actor (parent, management) is assumed to be virtuous, both able and wanting to come into compliance. At the next level, the actor is assumed to be rational, and so able to respond to the deterrent effects of penalties or loss of control of the situation to the state. At the apex of the pyramid, where incapacitation through license revocation or termination of parental rights is at issue, the actor is taken to be either irrational or incapable of compliance. The process itself responds to the virtues exercised by the subject of the regulation. As Braithwaite puts it in his essay “Families and the Republic”:

  Responsive regulation is a way of thinking, not a definite list of prescriptions. Some pyramids may specify moving an adult out of the family rather than a child, for example, or moving an adult member of the extended family into the household to keep an eye out for the rights of the child. Indeed the superstructure of the pyramid can be redesigned by democratic deliberation at the base of the pyramid. So a family group conference might decide that there will be a trial period of a family member attending an anger management program. Further it might agree that if this fails and degrading tirades of anger persist, there will be an escalation of intervention that requires this person to move out and live with their uncle. Finally, if the tirades still come back to haunt the family and spill into violence, family members may resolve to escalate to lodging a formal assault complaint with the police. Signaling in advance that these escalations will occur if interventions at lower levels fail can be good protective practice. This is because it communicates to the actors who need to change their behavior that if change does not occur, this will not be tolerated. The pre-commitment to an escalated response can motivate change because of the message the pre-commitment gives that change is inexorable.

  Later, the conference may resolve that if the tirades have dissipated under the joint influence of the anger management program and living under the firm hand of the uncle, conditions may be set for a return to live with the family. Signaling a pre-commitment to de-escalate in advance can also be good practice because it offers a positive incentive for change. The idea of responsive regulation is that it is better to be at the base of the pyramid where democratic conversation does the regulatory work, but that if escalation is necessary the decision to escalate should always be open to revision, so de-escalation occurs.22

  These models and processes depend on and promote the exercise of social justice both by professional actors and by adult family members. But underlying the whole pyramid discussed here is a much larger, less formal base in civil society. That is, FGC is itself a formal, legally mandated process resorted to when informal resources of care and control in families and neighborhoods, in the culture, helping networks, churches, and other intermediary groups and associations, are unable on their own to solve the problem or make things right. By far the bulk of care and control in society takes place beyond the direct reach of the state or professionals—above all in families, the basic building blocks of society, but also in the vast space of civil society that lies between individual and state. For social work and other fields involved professionally in care and control, it is a mistake to treat coercive and empowering aspects of practice as if they were incompatible or mutually exclusive. The key question on which so much else depends, in policy and practice, is the proper relation of formal to informal helping.

  [CHAPTER 19]

  From Charity to Justice?

  It is our care of the helpless, our practice of loving kindness that brands us in the eyes of many of our opponents. ‘Only look,’ they say, ‘look how they love one another!’

  —Tertullian, Apology 39 [about 200], 1989

  And though I bestow all my goods to feed the poor, and though I give my body to be burned, and have not charity, it profiteth me nothing.

  —1 Cor 13:3 [KJV]

  TOLSTOY, WHO NOTWITHSTANDING HIS OWN WEIGHTY NOVELS came to believe that the essence of art was the parable, calls one of his later short stories “Where Love Is, God Is.”1 Written in 1885, the story tells of Martin, an old cobbler who only recently and with the help of a pilgrim and daily study of the gospel, had emerged from the despair and self-preoccupation into which years of grief and loss had plunged him. He works out of his small basement home, from the window of which he is able to look out only on the feet of passersby, most of whom he recognizes by their shoes. One night in his sleep, he hears a voice of a man telling him to watch out for him the next day, as he will come by that window.

  The next day, Martin works away while keeping an eye out for an unfamiliar pair of boots in the street above. In the course of the day he sees, out in the snow-covered street, a hungry, broken-down old man, a mother in worn summer clothes struggling to keep her baby warm, and an old woman scolding her grandson who had stolen an apple. He invites each of them in to his modest room and gives them “food and comfort both for soul and body.”2

  I will not give away the conclusion—if only because the reader will already have figured it out—but suffice it to say that when Martin reaches for his gospel to continue reading where he had left off, the book opens at a different page, which he reads instead:

  “I was a hungered, and ye gave me meat: I was thirsty, and ye gave me drink: I was a stranger and ye took me in.”

  And at the bottom of the page he read:

  “Inasmuch as ye did it unto one of these my brethren even these least, ye did it unto me.”

  And Martin understood that his dream had come true; and that the Savior had really come to him that day, and he had welcomed him.3

  Tolstoy here expresses his Christian understanding of charity, the understanding that nineteenth-century critics regarded either as sentimental and disorganized, or, like Scrooge at the start of A Christmas Carol, as a practice made redundant by tax-supported government programs. For professional social work, which grew out of the first critique and has come in more recent times to embrace something more like the second, the Christian virtue of charity has been something of an embarrassment. Today the core documents of the main professional bodies of social work or social-work education mention nothing of charity, but all accredited schools must account for social justice as a core value. Here I examine these developments in an attempt to clarify the relation between social justice and charity more widely. I do this with particular reference to social work, but similar considerations apply to other helping professions and voluntary activities.

  Defining Charity

  Social work is in principle a virtue-driven profession. It is a social practice that requires and develops certain virtues.4 The character of a social worker is formed by the choices she makes—choices that form habits of the heart and mind,5 and that constitute her as the person making each subsequent choice.6 For Christi
ans, the highest of these moral excellences is the theological or grace-dependent virtue of charity (agape, caritas, love), the Holy Spirit’s greatest gift.7

  Charity is a source of ambivalence for social workers, however. It is the very definition of God (1 Jn 4:8). It is generally regarded as the greatest virtue,8 and it is at the heart of the Church’s mission to the poor and oppressed, an organized social activity of the Church from the beginning. Yet it is something of an embarrassment for professional social work, which arose out of an attempt (mostly by Christians) to “organize” charity and replace its sentimentality by scientific practice. Unlike justice, charity appeals neither to social work’s professional nor to its activist tendencies. And love, as charity is usually rendered in its theological context, does no better. Both its overtones of Hallmark-card sentiment and its religious roots make it something of an embarrassment to clinicians and activists alike. Moreover, in contrast to the virtue of justice, charity or love does not seem the kind of virtue that can be acquired and developed through secular professional education and practice. We see the difficulty if we consider how Christians have thought of charity as a virtue.

  Charity as Queen of the Virtues

  Charity also gets short shrift in the academic field of virtue ethics.9 Yet for any understanding of the place of the virtues in social work, or especially in the formation of the Christian social worker, it cannot help but be central. Charity as caritas is inescapably a theological virtue. Like faith and hope, it is not part of the classical, pre-Christian understanding of the virtues. Christians from Paul on have understood it as a special gift of God’s grace rather than as a natural process that can be understood in Aristotelian terms simply as a matter of training and habituation. Although love, charity, and caritas are used interchangeably among various New Testament translations, to avoid confusion and to be consistent with Michael Novak’s discussion of caritas above, I will use caritas for the theological virtue (faith, hope, and caritas) and “charity” for the related but distinct practice and virtue of eleemosynary giving of time, treasure, or talent to those in need, traditionally called works of mercy.