Is justice a process or an outcome?

Sarah Keenan joined Birkbeck Law School in 2015, having previously held posts at the School of Oriental and African Studies (SOAS) and Oxford Brookes University. Sarah co-founded the Centre for Research on Race and Law and teaches across a range of undergraduate and postgraduate modules. She is presently co-director of Postgraduate Research.
Raised on Giabal and Jarowair land in Toowoomba, Australia, Sarah worked in Brisbane as a Judge’s Associate in the Supreme Court of Queensland and as a solicitor at Prisoners’ Legal Service before moving to the UK to take up a PhD studentship at Kent Law School. Sarah has held visiting positions at York University (Toronto), the University of Wollongong, the University of British Columbia, and the London School of Economics (LSE). Sarah is an editor of the Routledge Social Justice Book Series, a member of the editorial board for the Journal of Property, Planning and Environmental Law, and a Board member of the Association of Law, Property and Society.
One of the few things I remember from my first year of Law School is being taught that the common law is slow. It waits for conflicts to happen out there in the world, and then comes in to mediate and deliver justice afterwards. ‘Society comes first’, he said, ‘and law after’. This understanding is of law as outside of time, lying in wait to intervene when called upon, only to retreat back to its timeless waiting room until the next dispute. It was a version of law that never quite fit with my experience of growing up in a settler colony. Law was not only fast – cops sweeping in to arrest indigenous people for the most minor of alleged offences – it was also pre-emptive. The land had always already been taken, or so every state institution seemed to keep saying. Property was already distributed, sovereignty already assumed, populations already categorised and prisons already built.

Anthropologist Carol Greenhouse argues that time arises from the temporal assumptions embedded in specific state practices, including bureaucratic administration and a variety of legislative and judicial power (1996: 74). Time arises from such practices because, according to Greenhouse’s theorisation, time ‘articulates people’s understandings of agency: literally, what makes things happen and what makes acts relevant in relation to social experience’ (1996: 1). Law thus produces time, rather than existing within it (Grabham 2016: 12). Emily Grabham argues that legal temporalities ‘have specific effects in dissolving distinctions between law and nature, and in strengthening ontological ties between law and reality’ (2016: 47). That is, the time produced by law has a particularly strong naturalising effect: legal events and the worlds they create and maintain come to be understood as natural and real rather than legally constructed.

Building on Greenhouse’s theorisation, philosopher Michelle Bastian suggests that time be understood as ‘a powerful social tool for producing, managing, and/or undermining various understandings of who or what is in relation with other things or beings’ (2012: 25). Bastian argues that clocks and the way we ‘tell the time’ in everyday life enable us to coordinate with some realities and ignore others (2012). Clocks signal change in order for their users ‘to maintain an awareness of, and thus be able to coordinate themselves with, what is significant to them… and consequently which elements of our world we want to keep to time with and which elements we can afford to drop from our sphere of direct concern’ (ibid). Using clocks and calendars will help us to arrive promptly for a court hearing, pay our taxes when they are due, and not overstay our visas. But it won’t help us coordinate our lives in relation to the growing emergency of climate change, which feels like a peripheral and distant issue outside of our control. The time produced by law must be understood not as an objective, universal and quantitative measurement of progress or existence, but rather as a culturally specific understanding of how events relate to each other.

Historian E.P. Thompson describes how during nineteenth century England, there were numerous innovations to ensure the institution of a standardised temporal order in English towns and cities, so that factory owners could coordinate their workers (Thompson 1967). Thompson shows that during this period, time came to be understood and regulated not by how long it took to complete particular tasks necessary for one’s own subsistence, but rather by the demands of employers who bought workers’ time (ibid). In Bastian’s terms, it was necessary for the burgeoning capitalist system to convince workers that ‘telling the time’ according to a standardised clock was what they needed to do to coordinate their lives. As capitalism grew increasingly international, British ‘standard time advocates’ lobbied for an overarching global time to allow for commercial and military coordination at this international scale (Barrows 2011: 2-4). These advocates prevailed with the 1884 Prime Meridian Conference recommending the global adoption of Greenwich Mean Time, with most nations (many of which were then British colonies) synchronising their times with the Greenwich Royal Observatory by the 1930s (ibid). Communities geographically very far from London were thereby oriented towards it, and away from local patterns and rituals. The successful push for nations around the globe to synchronise their times with the heart of the Empire was a distinctly colonial achievement.

As sociologist Renisa Mawani argues, law’s production of an overarching time that is singular and unified, differs significantly from and exists in tension with the multiple durations of lived time that it seeks to order and even eradicate. This doubling of time, between law’s time and the duration of lived time, fractured colonial legalities, opening sites for resistance and subversion, while also producing new intensities of colonial-legal violence (Mawani 2014: 73). The colonisation of time, Mawani argues, ‘was crucial to Britain’s acquisition and control over territory and to its modalities of colonial legality and governance’ (2014: 74). Mawani argues that racial categories were produced through ‘a juridico-political and temporal process that differentiated individuals and demarcated populations as racially distinct and as inhabiting competing and incommensurable times of colonial settlement’ (2014: 85). Indigenous populations are deemed to belong to an era of history that has now ended; non-white migrant populations as having a temporary and contingent claim to be where they are, as if they laid their claim to the land too late; while white Americans/Canadians/Australians/New Zealanders seem to have a permanent and timeless entitlement to stay where they are.

Though their production commenced centuries ago, the racial categories of ‘indigenous’, ‘migrant’, and ‘white’, remain in place today, predetermining life chances and rendering law’s justice an embarrassing façade for white supremacy. Nowhere is this more evident than inside the prisons and detention centres both in the USA and in Her Majesty’s more loyal white Dominions. In these warehouses of human cages, time is literally stolen from populations deemed to have wronged the present order, their shortened lives delivered to the free as justice. Law’s system of handing down judgements is slow, not because law comes after society, but because law produces social time. Only when we stop the clocks and see ourselves in relation to each other, inside and outside prison walls, between generations past and in those yet to materialise, might a time of justice begin.