Deconstructive Practice and Legal Theory

Social Theory Applied via Critical Legal Thinking

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Two articles: one introductory

Critical Legal Thinking

Deconstruction is/​in Law: Derrida Anniversary Event, Birkbeck 2 July 2014

by Admin • 22 May 2014

This year marks the tenth an­niversary of Jacques Derrida’s death. From the earliest days of Critical Legal Studies to con­tem­porary schol­ar­ship, Derrida’s thought has provided a rich re­source for crit­ical en­gage­ments with the law. From his pro­voc­ative as­ser­tion that “de­con­struc­tion is justice” to his im­portant in­ter­ven­tions on ques­tions of sov­er­eignty, hos­pit­ality and (through his posthum­ously pub­lished sem­inars) the death pen­alty, Derrida has be­come es­sen­tial reading for any crit­ical ap­proach to law and leg­ality. This event brings to­gether Derridian legal scholars and the­or­ists for re­newed re­flec­tion on the en­during legacy of de­con­struc­tion for the study of law.

Speakers:

• Aggie Hirst (City University London)
• Catherine Kellogg (University of Alberta)
• Costas Douzinas (Birkbeck, University of London)
• Daniel Matthews (Birkbeck, University of Birkbeck)
• Emma Patchett (University of Münster)
• Jacques de Ville (University of the Western Cape)
• Peter Fitzpatrick (Birkbeck, University of London)
• Roberto Vilchez Yamato (IRI/​PUC-​Rio)

The event is free to at­tend but you need to register.

DECONSTRUCTION IS/​IN LAW – PROGRAMME

Birkbeck, University of London
Wednesday, 2 July 2014 from 10:30 to 17:00 (BST)

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Deconstructive Practice and Legal Theory-- Part I

Copyright 1998 Jack M. Balkin. All Rights Reserved.
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Deconstructive Practice and Legal Theory

J. M. Balkin

The stone that the builders rejected

has become the chief cornerstone. --Psalms 118:22

The purpose of this Article is to introduce legal readers to the ideas of the French philosopher Jacques Derrida, and to his philosophical practices regarding the interpretation of texts, sometimes known as deconstruction.⁽¹⁾ The term "deconstruction" is much used in legal writings these days⁽²⁾ and in this Article I propose to explain its philosophical underpinnings. Many persons who use the word "deconstruction" regard it as no more than another expression for "trashing" that is, showing why legal
doctrines are self-contradictory, ideologically biased, or indeterminate.⁽³⁾ By the term "deconstruction," however, I do not have in mind merely stinging criticism, but specific techniques and philosophical ideas that Derrida and his followers have applied to various texts. These techniques often do involve teasing out the hidden antinomies in our language and thought, and that is primarily how I came to be interested in them.⁽⁴⁾ However, I hope to demonstrate that "deconstruction," as I use the term, is not simply a fancy way of sticking out your tongue, but a practice that raises important philosophical issues for legal thinkers.

Lawyers should be interested in deconstructive techniques for at least three reasons. First, deconstruction provides a method for critiquing existing legal doctrines; in particular, a deconstructive reading can show how arguments offered to support a particular rule undermine themselves, and instead, support an opposite rule. Second, deconstructive techniques can show how doctrinal arguments are informed by and disguise ideological thinking. This can be of value not only to the lawyer who seeks to reform existing institutions, but also to the legal philosopher and the legal historian. Third, deconstructive techniques offer both a new kind of interpretive strategy and a critique of conventional interpretations of legal texts.

Although Derrida is a philosopher, his work has been applied mainly to problems of literary criticism; as a result much of the literature on deconstruction is written by literary critics and scholars.⁽⁵⁾ Adapting the work of Derrida and other literary critics to the problems of legal and political thought is not, however, as difficult as might first appear. Derrida is above all interested in the connection (and misconnection) between what we want to say and the signs we use to express our meaning. In short, he is interested in the interpretation of texts, and that is hardly strange territory for lawyers, who spend most of their time trying to understand what other lawyers have said in legal texts. On the other hand, explaining deconstructive practice is no small undertaking. Like many French intellectuals of his day, Derrida was schooled in the continental tradition of philosophy, whose major influences are Hegel, Husserl, and Heidegger. None of these philosophers is known for clarity of exposition, and Derrida often does little better than his intellectual predecessors.⁽⁶⁾ For this reason, I will attempt to translate his ideas into a form that can be more easily understood by those familiar with the Anglo-American schools of philosophy.

The use of the term "translation" is quite deliberate. It is now commonplace to suggest that a translation can never fully capture the sense of the original. However, this point is especially significant in discussing Derrida's work. Derrida has chosen a self-consciously obscure and selfreferential style, overflowing with concealed allusions and counterallusions. As I will discuss more fully later, his style may reflect his critique of Western thought's emphasis on unambiguous and foundational concepts.⁽⁷⁾ I am thus put in an especially precarious position because my goal is to represent clearly and simply the ideas of a philosopher who eschews clarity and simplicity in his own work. My explanation must involve a kind of alteration--I must simplify, interpret, and reinterpret Derrida as much as I explain him.⁽⁸⁾

I also engage in translation in the sense that Derrida does not write about legal, but rather about philosophical and literary, texts. In explaining Derrida's practices to a legal audience, I will focus on those areas of his work that have the most relevance to legal writing and thought. This too, requires selection, editorial judgment, and reinterpretation. What interests me most about Derrida's work is the possibility that deconstruction can shed light on theories of ideological thinking: how people form and use ideologies, consciously or unconsciously, in legal discourse. Derrida's work is not primarily about epistemology or the sociology of knowledge, but his work has relevance to these disciplines. For that reason, I emphasize some points in Derrida's writings that others (including Derrida) might not choose to emphasize.

A final obstacle to explaining deconstruction comes from the nature of Derrida's project. Because Derrida and his followers insist that deconstruction is not a philosophical position but rather a practice,⁽⁹⁾ it is neither possible nor desirable to state a deconstructionist creed. Thus, my goal in this Article is to offer ways of bringing the concerns and methods of deconstructionists to the study of legal issues. Instead of describing what a deconstructionist believes, I will explain what a deconstructionist does and will attempt to show how one does "it" to legal texts. Not surprisingly, underlying deconstructive activities are philosophical presuppositions about language, thought, and the world. Such presuppositions are implicated in Derrida's work, even if he himself would not admit to them as a statement of a "position." I will try to make clear these hidden assumptions as the need arises.⁽¹⁰⁾

The two deconstructive practices that this Article will address are the inversion of hierarchies and the liberation of the text from the author. I believe these issues have the most relevance to what legal thinkers do when they analyze legal texts. They also have the most relevance to the study of ideology and the social and political theories underlying our legal system.

I. THE INVERSION OF HIERARCHIES

A. The Metaphysics of Presence

Described in its simplest form, the deconstructionist project involves the identification of hierarchical opposition, followed by a temporary reversal of the hierarchy. Thus, to use Derrida's favorite example, if the history of Western civilization has been marked by a bias in favor of speech over writing we should investigate what it would be like if writing were more important than speech. We should attempt to see speech as a kind of writing, as ultimately parasitic upon writing, as a special case of writing, rather than the other way around. In so doing, we reverse the privileged position of speech over writing, and temporarily substitute a new priority. This new priority is not meant to be permanent, for it may in turn be reversed using identical techniques. The point is not to establish a new conceptual bedrock, but rather to investigate what happens when the given, "common sense" arrangement is reversed. Derrida believes that we derive new insights when the privileging in a text is turned on its head.

For Derrida, hierarchies of thought are everywhere. They can be found in the following assertions: A is the rule and B is the exception; A is the general case and B is the special case; A is simple and B is complex; A is normal and B is abnormal; A is self-supporting and B is parasitic upon it; A is present and B is absent; A is immediately perceived and B is inferred; A is central and B is peripheral; A is true and B is false; A is natural and B is artificial. Indeed, my labelling of these ideas as A and B involves a hierarchical move because the letter A precedes B in the alphabet.

For Derrida, any hierarchical statements about a set of ideas A and B is an invitation for a deconstructive reversal--to show that the property we ascribe to A is true of B and the property we ascribe to B is true of A. Our deconstruction will show that A's privileged status is an illusion, for A depends upon B as much as B depends upon A. We will discover, then, that B stands in relation to A much like we thought A stood in relation to B. Indeed, it is possible to find in the very reasons that A is privileged over B the reasons that B is privileged over A. Having reversed the hierarchy, we are able to see things about both A and B that we had never noticed before.⁽¹¹⁾

Any hierarchical opposition of ideas, no matter how trivial, can be deconstructed in this way. For Derrida, however, deconstruction is more than a clever intellectual parlor game. It is a means of intellectual discovery, which operates by wrenching us from our accustomed modes of thought. In fact, Derrida was led to this practice of deconstruction by his dissatisfaction with Western philosophical practice from Plato's time to our own.⁽¹²⁾

Derrida sees his major project as exposing the bias in Western philosophy he calls the "metaphysics of presence."⁽¹³⁾ Each of the above opposition privileges a kind of "presence" over a corresponding kind of "absence." To Derrida, Western conceptions of philosophy proceed from the hidden premise that what is most apparent to our consciousness--what is most simple, basic, or immediate--is most real, true, foundational, or important.

For example, the philosophical positions of an empiricist like Hume indicate a bias in favor of immediately perceived sense data.⁽¹⁴⁾ This is a privileging of "presence" in Derrida's sense of the word. However, what Derrida means by "presence" need not be the presence of sense data to the mind, for a philosopher like Plato would argue that it is a Form or Essence which the mind grasps most immediately⁽¹⁵⁾ and which is therefore most "present." Rather, Derrida sees the theories of Western philosophers as expressing, at various times, a series of different metaphysical valuations: subject over object, normal over abnormal, good over evil, positive over negative, identity over difference, being over non-being, ideal over non-ideal. Western philosophy has used the preferred concept as a ground for theorizing and has explained the other concept in terms of it. In each case, the preferred concept constitutes a belief in "presence," a selfsufficient, immediately cognizable existence.⁽¹⁶⁾

Three examples may help to demonstrate how Derrida hopes to reverse these oppositional hierarchies. I will begin with perhaps the most fundamental concept in Western thought--the notion of identity. Philosophers have regarded identity as a basic ground for metaphysical thought: Anything that exists is identical to itself. Difference is a derivative concept based upon identity: Two things are different if they are not identical. The deconstructionist wants to show that the notion of identity, which seems so basic, so "present," actually depends upon the notion of difference. Self-identity depends upon difference because a thing cannot be identical to something unless it can be different from something else. Identity is only comprehensible in terms of difference, just as difference can only be understood in terms of identity. We have just deconstructed the opposition identity/difference by showing the mutual dependence these ideas have upon each other. In doing so, we show that what was thought to be foundational (identity) is itself dependent upon the concept it was privileged over (difference).

It is true that having reversed this hierarchy, we could then show that difference cannot be a foundational term for metaphysics; difference depends upon identity as much as identity depends upon difference. This outcome is not a refutation of our previous deconstructive reading. The conclusion that neither term is foundational, but that both are mutually dependent upon each other, is precisely the conclusion that Derrida wants us to reach.

Next consider the opposition between serious discourse and non-serious discourse.⁽¹⁷⁾ This opposition also involves the metaphysics of presence, although at first glance the connection is not quite as obvious. When I am speaking seriously, I mean what I say to you, so that my true intentions are immediately present in the meaning of what I say. On the other hand, when I am not being serious, for example, when I am joking, Lying, or reciting lines in a play, I do not really intend what I say. There is a divergence between my true thoughts and intentions and what you hear me saying. Now philosophers naturally are more concerned with serious discourse than non-serious, for serious discourse is, obviously, to be taken seriously. A philosopher would use the paradigm of serious communication as the foundation either for a theory of meaning or for a theory of performative speech acts like promising, warning, or marrying. Nonserious discourse, such as jokes, lies, or dramatic readings, is an aberration, an additional feature of discourse that one would explain in terms of serious discourse after one has worked out the basic theory of serious communication.

The opposition between the serious and the non-serious can be deconstructed in the same manner as the opposition between identity and difference. Once again, the goal is to subvert the notion that serious discourse is a self-contained, self-supporting ground upon which we can base a philosophical theory of meaning or promising.

To deconstruct this opposition, we must introduce the notion of iterability. Iterability is a property of signs. If one makes a sign, one can make the sign again at another time, in another place, in another context. In a simple sense, words are like signs. We are able to communicate because we can use words and combinations of words over and over again. If we had to create new signs to express our thoughts every time we attempted to communicate, we would never be able to communicate with anyone. Thus, iterability, or the property of being able to be repeated in many different contexts, is essential to any form of communication. When I say "It is raining outside" or "I promise to pay you thirty dollars for that coat," the statements I make are iterable. They can be repeated many different times, in many different places, and in many different contexts. I can say them when in fact I believe it is raining, or when I do intend to make a promise. But the feature of iterability means that I can also say them when I am merely joking or reciting lines in a play. Indeed, we are brought to the surprising conclusion that we could not use words to express ourselves seriously unless we could use the same words non-seriously. The same property of words that allows us to express what we mean requires that we also be able to express what we do not mean.

Serious discourse thus depends on the ability to make statements whether or not they conform with our true intentions. That is to say, the serious ultimately depends upon the prior existence of the non-serious. Indeed, we can go further. If we now reconceptualize "non-serious" statements as those statements in which there is no necessary connection between the statement and real intention, we may describe serious statements as merely a special case of iterable non-serious statements in which what we say happens to coincide with what we really intend.⁽¹⁸⁾

The work of the Swiss linguist Ferdinand de Saussure presents a third example of deconstruction. Saussure distinguished between langue, the background system of linguistic rules, and parole, the set of speech acts made by members of a linguistic community.⁽¹⁹⁾

Saussure argued that langue was the more important element in the understanding of language because the system of relations among various signs is what constitutes a language. Specific examples of parole, that is specific speech acts by speakers in a linguistic community, are only possible because of the preexisting langue that speakers unconsciously rely upon to understand each other. Thus, the word "cat" is possible in English because English speakers can distinguish it from "mat," "cot," and "cad." In this sense, languages are systems of differences; when an English speaker uses English words, those words carry with them the system of differences that makes them intelligible to other English speakers. In Derrida's terminology, English words carry the "traces" of other words from which they are distinguished and in opposition to which they possess intelligibility.⁽²⁰⁾

However, Saussure's privileging of langue over parole as the basis of language leads to an historical paradox: How did language begin at a time in which there was no established system of differences that constituted a language? As Jonathan Culler explains, "If a cave man is successfully to inaugurate language by making a special grunt signifying 'food,' we must suppose that the grunt is already distinguished from other grunts and that the world has already been divided into the categories 'food' and 'non-food.'"⁽²¹⁾

Language must have begun with speech acts, and through history the collection of past speech acts (parole) was consolidated to create a linguistic system (langue). On the other hand, speech acts could not have been understood without some pre-existing structure that made others understand that certain primordial grunts signified "This is a rock," rather than "I am in pain." No matter how far back we go in history, each speech act seems to require a pre-existing linguistic and semantic structure in order to be intelligible, but any such structure could not come into being without a history of pre-existing speech acts by past speakers. Neither langue nor parole could be a foundational concept in a theory of language because each is mutually dependent upon the existence of the other.⁽²²⁾



B. Differance and Trace

The three examples of privileging that I have given all have a single feature in common. Once the hierarchy of the more basic term over the less basic term is deconstructed, we see that the more basic term depends upon the less basic. Because we already know that the less basic term depends upon the more basic, we end up asking the proverbial question: "Which came first, the chicken or the egg?" This question neatly summarizes what Derrida is trying to show in deconstructing hierarchical oppositions. He is not attempting to show that we were wrong in thinking that difference is dependent upon identity, that the non-serious is dependent upon the serious, or that parole is dependent upon langue. Rather, he wants to expose what we have forgotten: that identity is also dependent upon difference, the serious is also dependent upon the non-serious, and langue is also dependent upon parole. In other words, neither term of the opposition can be originary and fundamental because both are related to each other in a system of mutual dependencies and differences. Each is continually calling upon the other for its foundation, even as it is constantly differentiating itself from the other.
Derrida has a special term for the chicken-and-egg quality of mutual dependence and difference that the terms of hierarchical oppositions have for each other: differance. Differance is a pun based upon the French word differer, which means both to differ and to defer. Derrida replaces an "e" with "a" in difference to make it differance; the two words sound exactly the same in French.⁽²³⁾
Differance simultaneously indicates that (I) the terms of an oppositional hierarchy are differentiated from each other (which is what determines them); (2) each term in the hierarchy defers the other (in the sense of making the other term wait for the first term), and (3) each term in the hierarchy defers to the other (in the sense of being fundamentally dependent upon the other).
From differance, we can understand the idea of "trace." Both of the terms in a hierarchical opposition rely for their coherence on the differentiation between them. The relation between identity and difference, serious and non-serious, langueand parole, is one of mutual dependence and difference, or differance. However, Derrida would also say that in each case the first concept bears the traces of the second concept, just as the second concept bears the traces of the first.
The word "trace" is a metaphor for the effect of the opposite concept, which is no longer present but has left its mark on the concept we are now considering.⁽²⁴⁾ The trace is what makes deconstruction possible; by identifying the traces of the concepts in each other, we identify their mutual conceptual dependence.⁽²⁵⁾
One might ask whether the ideas of differance and trace between two opposed concepts could form a new ground for explaining both. However, differance and trace are not stable conceptions; they simply represent the play of differences and dependencies between two mutually opposed concepts. Neither differance nor trace could serve as a foundational concept."⁽²⁶⁾
Having seen one originary concept after another fall under the deconstructionist sword, the reader might be tempted to ask whether Derrida means to deny that there is any self-sufficient, originary foundation for a system of thought. This is precisely the point of the deconstructionist critique of Western philosophy. Proposed foundational terms all depend ultimately upon the subordinate concepts we would like to depend upon those foundational terms. Derrida is denying the validity of the Cartesian project of discovering an unquestionable, self-sufficient ground for philosophy.⁽²⁷⁾

The notions of differance and trace suggest a revolutionary theory of how people grasp abstract ideas. Our commonsense view is that one holds an idea in one's mind, and that idea is immediately present as one conceives it. Thus, when I think about the idea of identity, I am thinking about it, and not about another idea (difference). When I think about speech, I am thinking about speech and not about writing. But we can read Derrida's work as challenging this commonsense conception. When we hold an idea in our minds, we hold both the idea and its opposite; we think not of speech but of "speech as opposed to writing," or speech with the traces of the idea of writing, from which speech differs and upon which it depends.⁽²⁸⁾ The history of ideas, then, is not the history of individual conceptions, but of favored conceptions held in opposition to disfavored conceptions.⁽²⁹⁾

It might seem at first that deconstructive practice is less important to lawyers than to philosophers. Derrida's critique of foundational thinking might be of great concern to philosophers searching for ultimate truth. Philosophy usually involves a search for ultimate groundings, and so the power of Derrida's critique is troubling. On the other hand, we do not expect that all or even most legal doctrines can be proven to have a basis in objective moral truth. Law is a much more pragmatic enterprise than philosophy. However, Derrida's critique is not simply directed at metaphysics. Derrida's point is that the privileging of presence may be found in everyday thought as much as in abstract philosophy. Any system of thought that proceeds by marking out the fundamental, the essential, the normal, or the most important--in short, virtually any rational system--can be analyzed from the standpoint of deconstructive practice.

Our understanding of legal ideas may indeed involve, as Derrida says of speech and writing, the simultaneous privileging of ideas over their opposites. Legal doctrines are based upon a group of foundational concepts and principles. Thus, in tort law, one learns the basic concepts of fault, intent, or causation, and more recently, the notions of cost-benefit analysis and economic efficiency. Such concepts are building blocks for further development. Using Derrida's methods, we discover that each legal concept is actually a privileging, in disguise, of one concept over another. By revealing the opposition, and deconstructing it, we are brought to an entirely different vision of moral and legal obligation. One example of legal doctrines' reliance on privileging is the Supreme Court's doctrine of standing. By holding that the Constitution requires a plaintiff to show "actual" injury in order to sue,⁽³⁰⁾ the Court has created a privileging of plaintiffs who have actual injury over plaintiffs whom the Court classifies as purely "ideological."⁽³¹⁾ One way to deconstruct this opposition would be to show how arguments in favor of the actual injury requirement "undo" themselves. The goal would be to examine the standard arguments for the actual injury requirement: Plaintiffs with actual injury are more reliable, more adversarial, and more likely to present a concrete record for decision. We could then use these arguments against themselves to demonstrate that ideological plaintiffs also possess these desired traits. Conversely, we could show how plaintiffs who possess actual injury, but who lack ideological zeal, are less dependable less adversarial, and less likely to produce a concrete record for decisionmaking than their ideological counterparts.⁽³²⁾

This example suggests that law provides a fertile field of discourse for deconstructive readings. Lawyers are continually involved in establishing principles of regulatory behavior, whether in contract law, constitutional law, or other areas, and this project necessitates the privileging of concepts. Deconstruction can serve another purpose. The law reflects social visions that involve privilegings of particular conceptions of human nature. As we deconstruct legal principles, we deconstruct the ideology or world view that informs them. Although we can use deconstruction to show that doctrines are incomplete, or that the arguments for a given doctrine "undo" themselves, we can also use deconstruction as a tool for ideological and historical analysis.

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Footnotes


I would like to thank my research assistants, Linda Talley, Suzanne Bardgett, and Jan Dodd, for their help in the preparation of this Article, and my colleagues, Joan Mahoney and James Kushner, for their comments on a previous draft.
1. Derrida has developed his ideas in several books and essays dating from 1967, some of which have only recently been translated into English. J DERRIDA, DISSEMINATION (B Johnson trans 1981) [hereinafter DISSEMINATION] J DERRIDA, MARGINS OF PHILOSOPHY (1982) [hereinafter MARGINS OF PHILOSOPHY]; J DERRIDA, OF GRAMMATOLOGY (1976) [hereinafter OF GRAMMATOLOGY]; J DERRIDA, Positions (1981) [hereinafter Positions]; J DERRIDA, SPURS (1979) [hereinafter SPURS]; J DERRIDA, SPEECH AND PHENOMENA (1973) [hereinafter SPEECH AND PHENOMENA]; J DERRIDA, WRITING AND DIFFERENCE (1978) [hereinafter WRITING AND Difference]; Derrida, The Law of Genre, 7 GLYPH 202 (1980); Derrida, Limited Inc abc..., 2 GLYPH 162 (1977) [hereinafter Limited Inc abc]. The best general introduction to Derrida's thought is J CULLER, ON DECONSTRUCTION (1982). Other good sources are H. STATEN, WITTGENSTEIN AND DERRIDA (1984) (suggesting Anglo-American philosophical approach to deconstruction); Johnson, Translator's introduction toDISSEMINATION, supra, at vii; Rorty, Philosophy as a Kind of Writing: An Essay on Derrida, 10 NEW Literary HIST. 141 (1978); Spivax, Translator's Preface to OF GRAMMATOLOCY, supra, at ix (essay requires familiarity with continental philosophers and Freud) None of the these considered the relevance of Derrida's thought to legal theory.
2. See, e.g, Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Frug, The Ideology of Bureaucracy in American Law, 97 HARV. L. REV. 1276, 1288-99 (1984) (citing Derrida's notions of "dangerous supplement"); Hegland, Goodby to Deconstruction, 58 S. CAL. L. REV. 1203 (1985); Spann, Deconstructing the Legislative Veto, 68 MINN. L. REV. 473 (1984); Tushnet, Critical Legal Studies and Constitutional Law: An Essay in Deconstruction, 36 STAN. L. REV 623 (1984); Note, Overshooting the Target: A Feminist Deconstruction of Legal Education, 34 AM. U.L. REV. 1141 (1985); Hutchinson, From Cultural Construction to Historical Deconstruction (Book Review), 94 YALE L.J. 209, 229-35 (1984).
3. For example, Spann associates deconstruction with a critique of formalism in legal reasoning, or with the more general project of demonstrating that legal reasoning is indeterminate. Spann, supra note 2, at 536-43. But see Hegland, supranote 2, at 1203-05 (uses term "deconstruction" in same way, but argues that premise of deconstruction is wrong; principles can be determined).
4. I have argued that legal and moral thought in general is antinomal though not irrational Balkin, The Crystalline Structure of Legal Thought, 39 RUTGERS L. REV. M (1987); Balkin, Talking Ideology Seriously: Ronald Dworkin and the CLS Critique, 55 U.M.K.C. L. REV. (forthcoming).
5. Eg, H. BLOOM, P. DE MAN, J. DERRIDA, G HARTMAN & J. MILLER, DECONSTRUCTION AND CRITICISM (1979), J. CULLER, supra note l; B. JOHNSON, THE CRITICAL DIFFERENCE (1980); V LEITCH, DECONSTRUCTIVE CRITICISM (1983); P. DE MAN, ALLEGORIES OF READING: FIGURAL LANGUAGE IN ROUSSEAU, NIETZSCHE, RlLKE AND PROUST (1979); P. DE MAN, BLINDNESS AND INSIGHT (1983).
6. At least one writer believes that struauralist and post-struauralist thinkers, most of whom were French, deliberately adopted an obfuscatory style in reaction to the bourgeois French preference for la clarite a simple, clear, and elegant style in accordance with the "narrower stylistic bounds of orthodox academic discourse'' expected of French intellectual. Stearic, Introduction to STRUCTURALlSM AND SINCE 16-17 (J. Stearic ed. 1979). The style of modern French philosophical writers, such as Jacques Lacan, Roland Banhes, Michel Foucault, and Derrida, was designed to challenge that paradigm of "proper" philosophical expression. Id. If this were in faa the goal of these writers, it bears noting that one can always have too much of a good thing.
7. See infra text accompanying notes 12-16.
8. Indeed, a deconstruaionist might argue that the process of repetition alters as it repeats. so that any explanation involves alteration of some son. See infra note 53. This point takes on a special urgency with a writer as elusive as Derrida, whose very work celebrates the gap between that which represents and that which is represented.
9. E.g., J. CULLER, supra note 1, at 95 (deconstruction as philosophical strategy); C. NORRIS, DECONSTRUCTION: THEORY AND PRACTICE 31 (1982) ("Deconstruction is . . . an activity of reading which remains closely tied to the texts it interrogates, and which can never set up independently as a self-enclosed system of operative concepts."); C. NORRIS, THE DECONSTRUCTIVE TURN: ESSAYS IN THE RHETORIC OF PHILOSOPHY 6 (1983) ("It has become almost a ritual gesture among writers on deconstruction to insist that what they are doing is in no sense a species of conceptual exegesis or analysis. Deconstruction is first and last a textual activity")
10. In doing so, my descriptions may well be seen by literary theorists, for example, as untrue to their understanding of deconstruction. However, just as deconstructive theorists take pride in the inability of others to systematize their work, I take comfort in the fact that an "orthodox deconstruction" is a contradiction in terms.
11. The word "hierarchy" probably has political connotations to many legal readers. These connotations are unfortunate, for they may lead to a misunderstanding and oversimplification of Derrida's critique. Derrida's work is not concerned with the privileging of certain social groups over others (although it can be so applied), but with the privileging of certain ideas over others. We may, in fact, discover as we deconstruct legal texts that the privileging of ideas (as occurs in an ideology) has a connection to the privileged place that certain social groups enjoy. However, this connection is not a direct one. Our first task to investigate the connections among ideas.
12. See J. CUllER, supra note 1, at 92-94,100; OF GRAMMATOLOCY, supra note 1, at 3,10-18, 46; see also Rorty, supra note 1, at 145.
13. See OF GRAMMATOLOCY, supra note 1, at 49 (metaphysics of presence is irrepressible desire for transcendental signified presence, the thing itself, or truth); see also J. CULLER, supra note 1, at 92 ("Philosophy has been a 'metaphysics of presence,' the only metaphysics we know.").
14. See generally D. HUME, A TREATISE OF HUMAN NATURE (L. Selby-Bigge 2d ed. 1888) (all knowledge derived from sense data).
15. See PLATO, THE COLLECTED DIALOGUES OF PLATO 40, 575 (E. Hamilton & H. Cairns eds. 1961) (theory of Forms in Phaedo and Republic).
16. SEE WRITING AND DIFFERENCE, supra note 1, at 278-79; Limited Inc abc, supra note 1, at 236.
17. The discussion that follows is loosely based on Derrida's deconstruction of J.L. Austin's work in MARGINS OF PHILOSOPHY, supra note 1, at 307, 321-29, and in Limited Inc abc, supra note 1, at 162
18. In this last statement, I have used the word "non-serious" in a new sense. Originally, I used it to mean "not serious " By the end of the deconstruction, however, it has taken on a new meaning, namely, "stated without regard to whether the statement conforms to real intention " In reversing the serious/non-serious opposition, I have created a broader notion of non-serious speech upon which both the serious and the non-serious (in the former sense of the word) depend. This is a common practice in a deconstructive reversal and involves the creation of a paleonym, a new concept with an old name that recalls the previously subordinated concept See infra text accompanying notes 42-44
19. F. De Saussure, Course in General Linguistics 9, 13-15,17-20, 77(3d ed. 1959).
20. See infra note 25 and accompanying text
21. See J. CULLER, supra note 1, at 96.
22. See J. DERRIDA, Semiology and Grammatology, in POSITIONS, supra note 1, at 15, 17, 28 [hereinafter Semiology and Grammatology]. Culler refers to this as the paradox of structure and event. J. CULLER, supra note 1, at 94-96. The same problem arises for theorists who explain obligations in terms of the existence of "practices." See Rawls, Two Concepts of Rules, 64 PHIL. REV. 3 (1955). Promissory obligations, for example, are explained by the practice of promising. See H.L.A. HART, THE CONCEPT OF L~w 42-43 (1961). By arguing that acts of promising could not come into being before the creation of a practice of promising, these thinkers face the problem of showing how a practice of promising could have arisen before there were any specific acts of promising.
23. See Margins of Philosophy, supra note 1, at 3; J. Derrida, Positions, in Postitions supra note 1, at 39-40 [hereinafter Positions]; Semiology and grammatology, supra note 22 at 26-28.



24. See OF GRAMMATOLOGY, supra note 1, at 46-47
25. See id. at 62-63. The phoneme /b/ is a sound in English because of its differentiation from the set of other available sounds in that language. The idea of "trace" may be compared to the way in which speakers are able to distinguish /b/ from other phonemes, while simultaneously being able to identify the /b/ spoken by one person with the /b/ spoken by another. In a similar way, the concepts in hierarchical oppositions create the possibility for each other's existence; they form, shape, or identify each other by their absence. This necessary conceptual support is the "trace" of the absent concept.
26. See Positions, supra note 23, at 39-40. Note that this statement is itself deconstructible. The concept of differance is essential (hence foundational?) to Derrida's own thought, at least as I present it here.
Two points follow from this deconstruction. First, if we attempted to give concepts like "differance" and "trace" a special status, whether as foundations for deconstruction or as ineffable concepts that escape analysis, we would fall into the very trap that Derrida seeks to avoid. Rorty, supra note 1, at 151-53. Thus, trace cannot be "divinized," as Rorty says, id. at 153, and neither can differance. These conceptions must simply describe the situation of foundationlessness, provisionality, or reversibility. The second point is that this lack of foundational concepts puts any expositor of Derrida's thought in an unfortunate situation. These concepts are important to understand Derrida, and one cannot do justice to his work without discussing them. I therefore present them as essential, although Derrida would not approve. This dilemma merely demonstrates the impossibility of giving a fully deconstructionist account of deconstruction See infra note 54.
27. See Rorty, supra note 1, at 159.1 use the term "Cartesian" because in many ways Descartes is the high priest of the metaphysics of presence: Descartes believed that one could ultimately base a philosophical system upon the indubitable truth that one's existence is immediately present to one's own consciousness. R. DESCARTES, Meditations on First Philosophy, in THE PHILOSOPHICAL WORKS OF DESCARTES 131 (E. Haldane & G. Ross trans. 1911).
The cogito of Descartes attempted to ground philosophy on a metaphysics of presence. Derrida did not need to deconstruct the assertion because David Hume had already performed the task. Hume argued that one's sense of identity is dependent upon the continuous flow of thoughts that one experiences. Thus, instead of thought being dependent upon the self's identity, identity is dependent upon the experience of thought. When Descartes said, "I think, therefore I am," he believed that he had demonstrated the privileged nature of existence over thought (I must be, in order to be thinking at all). Instead, Hume showed that Descartes' conclusion made knowledge of identity only an inference from the continuous experience of thought (I know that I exist because there is a continuous stream of thoughts). D. HUME, supra note 14, at 6. A deconstructive reading of Descartes' cogito, then, demonstrates that identity and thought are mutually dependent upon each other in a relation of differance
28. See Semiology and Grammatology, supra note 22, at 26. What speech is opposed to, of course, depends upon the context.
29. This is an epistemological interpretation of Derrida. Derrida does not purport to offer a theory specifically about epistemology, metaphysics, or any traditional field of philosophy. Indeed, Derrida would probably resist the idea that his theories were "about" anything in particular, although it is my belief that they have many applications in such fields as literary criticism, philosophy, psychology, and law. I offer my interpretation because of the connection I am about to make between privileging and ideological thinking. If we apply Derrida's work to the way people formulate and use legal concepts, we are making a point about human psychology and the sociology Of knowledge. An epistemological interpretation is consistent with the work of Derrida's. structuralist predecessors, such as Saussure and Levi-Strauss. These thinkers argue that human consciousness is structured in terms of mutually defined oppositions. see generally T. HAWKES, STRUCTURALISM AND SEMIOTICS 19-58 (1977).
30. see, e.g., Warth v. Seldin, 422 U.S. 490 (1975).
31. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974); Sierra Club v. Morton, 405 U.S. 727 (1972).
32. For example of deconstruction of this doctrine, see Tushnet, The Sociology of Article III: A Response to Professor Brilmayer, 93 HARV L. REV. 1698 (1980); J. Balkin, Deconstructing Article III (Sept. 27, 1986) (unpublished manuscript on file at Yale Law School Library)

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"The Pursuit of Social Justice": A Social Work Ethic under Siege

JOURNAL ISSUE 13

2006/2007

"The Pursuit of Social Justice": A Social Work Ethic under Siege

W. David Harrison

School of Social Work

East Carolina University

Greenville NC 27858

John H. Pierpont

School of Social Work

East Carolina University

Greenville NC 27858

"Social workers should pursue social justice." One can find a version of this obligation in most countries' codes of social work ethics. It is embedded in social work's historical narratives and myths. However, this ethic appears to be under siege as never before. Consider what a very senior British social worker recently said in a research interview about how things had changed over the last 20 years:

It's the way we talk about people with problems. There is a nastiness of public response to people who are challenging in one way or another. It extends blame to those providing services. It's as though people providing services are a threat . We don't give people a chance. It's about intolerance. It's about you're one of us or you're not . We have an excluding culture, while we have political talk of inclusiveness and equality .

Strong opposing ideological and cultural forces have built up around the ethic, starving it to the point that it is at risk of "failing to thrive." In the version of the narrative and myth that are being enacted now, many social work educators and practitioners are adapting to cope with the siege. It is too soon to know whether this siege process will be irreversible. In this paper, the authors offer their perspective on the state of the social work profession in light of the siege of the pursuit of social justice, as well as some ideas about how social work might overcome it.

Social work has lost much of the foundation myth which has fortified the profession in the past. The myth is one version or another of the idea that each social worker practices with or for both the individual and the social collective. The siege has been set by major social forces that are diminishing almost all professions, depleting the meaning of professionalism, and treating us as interchangeable parts of a large, efficient, machine-like social system. We are vulnerable because even reforms in social work organizational bureaucracies are likely to put many social workers out of work or to change social work roles drastically, sometimes without warning. This is what Stephen Webb (2006) calls "risk society", in which almost nothing is stable, and therefore, as Sennett (1998, 2006) describes it, there is little foundation on which competence and commitment can develop. A quickly produced effect on predetermined "targeted" outcomes (i.e. "effectiveness") is sacred to the designers of many of today's organizations. What is more, we seem so far to be unable to do much about these powerful forces that have gripped the profession.

The pursuit of social justice is vulnerable to siege because of social work's conceptual uncertainty about the meaning of social justice and because of the changing nature of modern professions and professionals. Social work has become an expression of Modernism, appearing in the form of atomistic job designs, practice prescriptions emphasizing standardized "outcomes," and other manifestations of the global, corporate bureaucratic ideology. These current characteristics have formed an awkward marriage with social work's mythical, narrative tradition that sanctifies action to achieve social justice, social change, and individual development in the face of adverse social forces. Set against this Modernist backdrop, today's students and practitioners are often Postmodern creations, scrambling to cobble together a sense of professional integrity and purpose from the vast variety of jobs, experiences, constraints, and ideas that we refer to as "social work."

As social workers begin to adopt a concerned, ethically based critical perspective on our profession, we may find new places to begin the process of strengthening the pursuit of social justice. This will require research, critical analysis of political theory as a foundation for social workers, and alliances with people who have been treated unjustly. And these groups may not be the ones we have allied with in the past.

But the answer to the question about how much and how well social workers are advancing social justice has to be coupled with an examination of the social and moral forces that have made the question important to us. Why is it imperative that we examine the matter now? Something important seems to have changed in relation to social work and social justice, and for many of us the change we perceive is very disturbing.

Social Justice and Social Work in Context

Social work histories show that the pursuit of social justice has always been both a challenge and a myth for social workers and their immediate predecessors in charity organizations and settlement houses. Social workers have typically done many different things, collectively and individually, even in the days of charity organization and settlements (Banks, 2004). Pursuing social justice will probably continue to be both challenge and myth, because they are compatible constructs.

Bank's (2006) and Gray & Fook's (2004) analyses show us that one of the few ideas that is almost universal in the official definitions and ethics of social work around the world is "the pursuit of social justice." We have thought of this ethic as an ideological fortress, something that is so strong and important and well-defended that its safety has seemed secure. And apparently in a number of countries, particularly those that are more oriented to social development than to professional casework, this emphasis is still very strong (Gray & Fook, 2004). However, in the USA and the UK societal and professional forces have converged to reduce greatly the influence of the ethic. In the face of this ongoing challenge, many of us try to defend our profession by re-telling the mythical tales of social justice that have guided and sustained the profession (e.g. Johnson, 2004). These are the sorts of myth that inspire us and help us develop and maintain a sense of professional commitment, integrity, and distinctiveness. They are not myths in the sense of self-deceptions.

WThus, the pursuit of social justice is not just an ethical rule or practice principle in the form of a challenge, it is also a myth in the sense of being "a traditional story, especially one concerning the early history of a people or explaining some natural or social phenomenon." (Oxford American Dictionary, Apple OS-X version). Thus, the pursuit of social justice by social workers is both a principle and an explanatory belief that social workers often assume to be true. Some people discuss this myth as what distinguishes social work from other professions, especially from those involved almost entirely with counseling or therapy.

Some will recall how testy and resistant many social workers were to Specht & Courtney's (1994) assertion that social work has lost the collective, mythical will to enact a commitment to social justice. Specht & Courtney presented a historical analysis to justify their claim that social work had begun as an effort to create communities in which people would live in a meaningful, reasonably just relationship to one another. When confronted with this history, many social workers replied with examples of wonderful contemporary practice that clearly does seem consistent with our guiding myths. Others stated that that sort of practice may never have existed or is hardly relevant to contemporary realities. Some North American clinical social workers had particularly loud objections.

There is no doubt that some social workers do engage in some practice in the pursuit of social justice, but how common and how important is this work in the big picture? To unify Specht & Courtney's (1994) analysis with the questions of modern social workers, we must ask "How common and important has it ever been, in reality as opposed to mythology?" It is time to assess fearlessly and openly the myths to see whether they carry essential truths that are applicable today, or whether they are out of touch with the world we live in to the degree that they should be filed away for history.

Or perhaps there are ways the myths and practices can be adapted to suit our own context. We believe this may be the case and it may not be too late; but developing and enacting our evolving myths will require a great deal of us as a profession. It will require that we commit ourselves to learning much more about social justice than most social workers understand now. We will have to examine ourselves rigorously and without self-serving motives that make us look or feel good. We must determine whether social work practice is any longer compatible with the ethic of the pursuit of social justice, and if so we must develop and clarify new stories and biographies. Finally, we will have to identify and confront some of the forces that shape our values and ethics at the level of everyday practice. Learning about these matters will require a number of studies using different sorts of inquiry, and collectively the project would be distinctively "social work research."

The Idea of Social Justice

Social workers' professional organizations state that social justice is a central value, and that social workers have the ethical responsibility to pursue it. Our codes of ethics and definitions present the pursuit as a principle and standard of practice, and these documents and everyday social work discourse suggest that engaging in this pursuit is a quality of the virtuous social worker. In fact, it may be that adopting a virtue-ethics approach is one response to the problems of the profession today (Webb, 2006). These proclamations and many social workers' attitudes form part of the larger collective narrative of who we have been and who we are. So do the stories of the few well-known heroines and heroes of the field, tales of the milestones that we seem to have passed on our way to professionalization and our current state of affairs.

In the United States, for example, students may learn about the part social workers played in the historic social justice movements summarized as the Progressive Era, the New Deal and formation of the welfare state, the Civil Rights Era, and the War on Poverty. Unfortunately, nothing as clear as these movements has focused social work's comprehensive, collective attention in recent years. Most recently, social workers have been occupied with case management, managed care, evidence-based practice and best practices, and cognitive behavioral therapy. While there continue to be many examples of social workers doing very important and effective things in the interest of fairness in economics, power, and privilege relations between social groups, social workers seem to be engaged in the pursuit of social justice on a very small scale. For many, their pursuit is a matter of being a member of a social work organization that does enact a significant, if modest, advocacy role. Whether it is significantly different from the mythical social justice practice of the past is unknown, because it is unclear what proportion of social workers ever widely enacted the supposed ethic or myth. But it does seem that when speaking of large-scale, committed social justice practice, social workers most often refer to the practice in the past. Some social workers appear to have learned to thrive occupationally in the new world of corporatism, but probably with a very new myth and narrative. In addressing the matter of how they may have done so, it is important to examine both ethics and the meanings of social justice.

Ethics

If one looks to codes of ethics, one will find that most of them include a commitment to social justice as a value or a principle. Banks' (2006) recently compared many countries' social work codes of ethics, and found that very few did not specify the principle of social justice. While these codes often evidently borrow from one another, the Russian code (Union of Social Educators and Social Workers, 2003) is illustrative:

3.2. Social justice and humanism
Social justice and humanism are values of social and social - pedagogical work.
They include:

• air and equal distribution of resources for satisfaction of the person's basic social needs;
• creation and observance of guaranteed equal opportunities of using the potential of the state and public social services, organizations, associations;
• maintenance of equal rights and opportunities of their realization at the reference and protection according to the law.

The characteristics of social justice and humanism are not very different from those described in most codes, although some, as Banks notes, do go further than others in specificity and the relative emphasis on social justice in the code. Fairness, distribution of resources to meet minimal need, equal access to state resources, and equal rights and opportunities to realize them are typical statements.

The American National Association of Social Workers' (NASW) Code of Ethics specifies the value of social justice, as well as an ethical principle for its practice:

Value: Social Justice
Ethical Principle: Social workers challenge social injustice

Social workers pursue social change, particularly with and on behalf of vulnerable and
oppressed individuals and groups of people. Social workers' social change efforts are focused
primarily on issues of poverty, unemployment, discrimination, and other forms of social injustice.
These activities seek to promote sensitivity to and knowledge about oppression and cultural and
ethnic diversity. Social workers strive to ensure access to needed information, services, and
resources; equality of opportunity; and meaningful participation in decision making for all people.
National Association of Social Workers, 1999)

The Council on Social Work Education's (CSWE) Educational Policy and Accreditation Standards refer to the NASW code concerning this matter, and they go on to state that, to meet accreditation standards,

Programs integrate social and economic justice content grounded in an understanding of distributive justice, human and civil rights, and the global interconnections of oppression. Programs provide content related to implementing strategies to combat discrimination, oppression, and economic deprivation and to promote social and economic justice. Programs prepare students to advocate for nondiscriminatory social and economic systems. (Council on Social Work Education, 2001)

These statements and similar ones from other countries are hard to argue with, but they reflect the imprecise and vague nature of social justice as professional social work organizations deal with it. This is understandable and probably inevitable, unless social justice was to be reduced to a set of prescriptive actions.

Clearer and more precise are the NASW (1999) statements of "Ethical Responsibilities to the Broader Society." This section of the Code of Ethics is particularly important in that, like the Russian guidelines "demand", it specifies what social workers should do:

6.0.1 Social workers should promote the general welfare of society, from local to global levels, and the development of people, their communities, and their environments. Social workers should advocate for living conditions conducive to the fulfillment of basic human needs and should promote social, economic, political, and cultural values and institutions that are compatible with the realization of social justice.

The social worker's responsibilities to the broader society are picked up again in a subsequent section that is slightly more specific:

6.0.4 (a) Social workers should engage in social and political action that seeks to ensure that all people have equal access to the resources, employment, services, and opportunities they require to meet their basic human needs and to develop fully. Social workers should be aware of the impact of the political arena on practice and should advocate for changes in policy and legislation to improve social conditions in order to meet basic human needs and promote social justice.

(b) Social workers should act to expand choice and opportunity for all people, with special regard for vulnerable, disadvantaged, oppressed, and exploited people and groups.

(c) Social workers should promote conditions that encourage respect for cultural and social diversity within the United States and globally. Social workers should promote policies and practices that demonstrate respect for difference, support the expansion of cultural knowledge and resources, advocate for programs and institutions that demonstrate cultural competence, and promote policies that safeguard the rights of and confirm equity and social justice for all people. NASW (1999)

As Banks notes, only a few codes deal with the relative importance, by any definition, of practice in the pursuit of individual well-being and social justice (pp. 97-98). In its recent (2005) code revision, Canada more clearly than most presents the need to balance individual and social ends. Social justice is presented as a central value, including the statement:

Social workers promote social fairness and the equitable distribution of resources, and act to reduce barriers and expand choice for all persons, with special regard for those who are marginalized, disadvantaged, vulnerable, and/or have exceptional needs. Social workers oppose prejudice and discrimination against any person or group of persons, on any grounds, and specifically challenge views and actions that stereotype particular persons or groups. (Oh, Canada Cite).

The lack of conceptual clarity notwithstanding, perhaps the biggest problem with the "ethic" of "the pursuit of social justice" is how often it is framed in Kantian, procedural terms as a rule or principle of practice, rather than as a guide to right practice. In social work we seem to have two sorts of social justice, a prescriptive one and a very vague and general one. Perhaps we can put these together in a way that has both intellectual depth and utility for today's tough situation.

One such alternative is the development of new forms of virtue-based ethics emphasizing characteristics of the individual and collective, rather than prescribed behavior. Webb (2006) has recently developed this approach in some detail, leaning largely on the work of Charles Taylor. Webb has developed the thesis that social work is an extraordinary component of today's social systems because it is so value based, and because in its association with citizens, it presents a realm in which these values can be enacted. Social work practice that emphasizes deliberately the development of social capital - that is, networks of social relations that are positive in developing a good life - is possible. Webb contends that what we are calling the ethical siege can be broken through connections that are real, honest, and valued, in effect, embodying traditional elements of the social work relationship. Following Webb's approach, we argue that a social worker who consistently pursues fairness, the distribution of good and bad things in society in ways that advance those least able to participate, and who is embedded in a culture but mindful of that culture's problems is a virtuous social worker. Whether Webb's thesis is the best or the most practical remains to be seen, but surely we need to examine it and develop others in order to deal with the sense of the loss of social justice as a virtue ethic in social work.
What is Social Justice?

The philosophical world seems different from the world of practice but, in fact, for social workers both are relevant and unavoidable. The task is to develop a philosophical dimension for our profession. In his elegant discussion of how the term "social justice" was used originally by Luigi Taparelli in the 1840s, Behr (2005) demonstrates how it has become "hollowed" in so much subsequent usage. In social work we have to be especially mindful that with overuse and careless use we hollow the idea of social justice, leaving it essentially meaningless. In the process we lose much of the power of ideas to help us construct the world of practice. "Social" essentially refers to how individuals and groups of people interact, and "justice" basically means fairness, or equal treatment in important matters. So, social justice might be thought of literally as fair and equal relations among individuals and social groups. This definition might suffice for some, but it will not be thorough enough to cover social work. If one asks a group of social workers what is meant by social justice, one will have to sort through a variety of responses. Some responses might be contradictory, some will be superficial, and a few will be thoughtful and informed. This is also the case in the profession, and this lack of conceptual attention and clarity does not advance the cause of social justice practice.

Further, there are different views among those who have worked on the topic. Elisabeth Reichert (2003, 2006) is a major advocate for a human rights approach to social work, who has reviewed and critiqued the profession's literature on social justice. She contends that the construct is far too vague and fails in comparison to a mission to uphold universal human rights, a related but distinct construct. Reichert briefly summarizes three basic approaches to social justice: libertarian, utilitarian, and egalitarian. Her contention is that a human rights approach based on various declarations and treaties is far more concrete and therefore more practical than a social justice approach, which is deemed too vague. The human rights approach to social work is much less prominent in the USA than it is in many other countries, and it poses a distinct challenge and opportunity to any social worker seeking to articulate a social justice dimension of practice. The human rights approach can be integrated with a social justice approach, and its set "outcomes" of entitlement by virtue of being a human being are a compelling version of what is sometimes called a principle-based or Kantian ethic. What would today's codes of ethics be like if their prescriptions were more clearly framed in terms of human rights?

The International Federation of Social Workers' (2000) working paper on the definition of social work states that "Human rights and social justice serve as the motivation and justification for social work action." It appears that this definition treats the two constructs as one or as at least components of a common general idea. Consistent with the idea of a motivating myth, this statement is satisfactory for many among us. But philosophers, practitioners, and everyday people have been thinking about social justice and laying out programs based on views of it, too. They have much to offer social work that is seldom or never used.

Some of these views of social justice may seem absurd - in A Dictionary of Euphemisms, Holder (2003, p. 372) states that "social justice" is a euphemism for "robbery of the rich," also as one of Goebbles' stated aims of the Nazi regime, or, as Alice said about Wonderland, "the phrase means whatever you want it to mean." When we begin to pay attention to the way the phrase is used in professional and everyday lay discourses, we begin to realize that we have to learn what this specific user wants it to mean in order to get anywhere.

"Pursuit of social justice" in the social work literature is often at best a vague reference to work to right wrongs and to go beyond individual cases. However, there is much to be learned and applied from others' ideas about social justice. In what could be a description of the situation in social work, the eminent political philosopher and expert on social justice, David Miller prefaces his excellent exposition of the idea of social justice and his egalitarian approach to it with the following caution:

Social justice is an idea that is central to the politics of contemporary democracies. Not everybody is for it. Some believe that the pursuit of social justice is a snare and a delusion and that we should be guided by other ideals - personal freedom, for instance. Among those who support it, it is not at all clear what the idea means. Often it seems little more than a theoretical phrase used to add luster to some policy or proposal that the speaker wants us to support. People may be committed to social justice in the abstract, and yet disagree bitterly about what should be done about some concrete social problem such as unemployment. This increases our suspicion that the term may have emotive force, but no real meaning beyond that. (Miller, 1999, p. ix)

Miller is not one who believes the term to be meaningless. But he is firm in his assertion that it takes form only in specific contexts. He defines social justice as follows:

ery crudely, I think, we are discussing how the good and bad things in life should be distributed among the members of a human society. (1999, p. 1)

Miller's work is exceptional for elaborating the dimensions of social justice, as well as advocating his own approach, which in turn is an elaboration of Rawls' (1972) theory. It should be noted, for example, how he begins to clarify social workers' dilemma concerning the tension between individual freedom and social justice. He emphasizes the need to explore the contradictions and boundaries that are inherent in any reasoned consideration of the construct. Three of the basic context-defining questions are as follows:

1. What are the good and bad things that social justice relates to? [And we might ask what is the territory of social work in terms of the good and bad things in life?]
2. What does it mean to "distribute" or have distributed the good and bad things in human life? Is there necessarily an agency or social institution that deliberately distributes? [Is social work part of the methods of distribution, or something to be distributed?]
3. What are the boundaries of a "human society"? A community? A country? The world? Who decides? [And what of the ideas of globalization, immigration, individual cases?].

One set of answers to these questions lies in libertarian social justice, most clearly presented by Nozick (1974) in Anarchy, State, and Utopia. It involves the individual's entitlement to whatever he or she acquires, which is in direct contrast to the egalitarian or distributive justice idea most influentially presented by Rawls (1972) and later refined by Miller (1999, 2003). Hayek (1976), another well-known critic of the idea of social justice, argues that the individual is the only level at which justice is relevant, because only individuals act in deliberate ways that are consistent with ideas of personal agency that are central to the distributional theories. Hayek also argues that the idea of distribution and redistribution of resources or wealth is just only when people and the economy are free of external attempts to change them. Attempts to redistribute wealth, according to this view, will destroy the wealth-producing mechanisms of societies. This view is consistent with at least some notable proportion of the public in Western countries.

Others who have dealt with defining social justice have pointed out, in ways that are important to social work, some of the paradoxes that make the serious consideration of the meaning of social justice relevant to all social workers. Among the compelling works of the Canadian political philosopher, Will Kymlicka (1995, 2005), is a particularly clear statement of particular justice dilemmas that occur when a society is very diversified and its deliberate policies are intended to include a variety of groups. While Kymlicka's own very preliminary research (2005) does not tend to support the hypotheses, his statement of them distills thinking about some contemporary dilemmas and presents the issues that social workers have to confront. There are actually two concerns here:

1. That ethnic/racial diversity as such makes it more difficult to sustain redistributive social policies, because it is difficult to generate feelings of national solidarity and trust across ethnic/racial lines. We can formulate this as the hypothesis that the larger the size of ethnic/racial minorities as a percentage of the population, the harder it is to sustain a robust welfare state. I will call this the "heterogeneity/redistribution" tradeoff.
2. That the "multiculturalism" policies adopted to recognize or accommodate ethnic groups tends to further undermine national solidarity and trust. We can formulate this as the hypothesis that the more a country embraces the multicultural "politics of (ethnic) recognition", the harder it is to sustain the "politics of (economic) redistribution". I will call this the "recognition/redistribution trade-off.

Social Work Definitions of Social Justice

Hayek's ideas are frequently evident in everyday public discourse and, we would argue, even in the minds of many social workers and people who support them. Still, this is but one of several social work frames of reference.
Distributive and redistributive orientations to social justice include various ideas about how a social contract exists, or how social contracts might exist in different forms. They also address the allotment of resources and opportunities so that, in the interest of a more equal society, those in society who have the least will have more. Social work emphasizes this approach to social justice in much of its policy teaching and in its general rhetoric. The first author did a review of NASW documents and found many references to social justice and the centrality of social justice as a value, but no clear definition. Elements of redistributive philosophy are present, for example, in the NASW Code of Ethics, but the emphasis is on equal rather than redistributive justice.

Many of social work's statements about social justice are oriented to service access, non-discrimination, and the well-being of oppressed or disadvantaged people, but how far do social workers go in thinking these matter through? There are many paradoxes in the pursuit of this type of rights-based social justice. For example, the American NASW code specifies a number of these important points, but Clarke (2004) describes how these very practices serve not only to improve access but also to confirm the supposed benign normality of many of these services and the social control roles that are embedded in them. As he puts it, there is a tendency to discover "institutionalized patterns of discrimination that took social norms and reproduced them in policy and practice." Without recognizing how the roles are intertwined and inseparable, there can never be the sort of transformation of services necessary for a more socially just situation. This leads us to the workplace as an important contributor to the siege of social work's pursuit of social justice.

Jobs

A large proportion of social workers work hold positions that were created for ends other than social justice. Banks (2006, p. 144) summarizes the forces holding siege to the pursuit of social justice through the control of jobs. She identifies the following factors:

• Consumerism - a concern to offer a consistent standard of service, linked to service users' rights and quality assurance
• Managerialism - which seeks greater control over the work of employees
• Authoritarianism - which emphasizes the social control function of practitioners;
• De-professionalisation - a process that seeks to characterize social workers as officials carrying out agency policy.

Many American social workers aim for these jobs, particularly in clinical social work. However, the "NASW Standards for Clinical Social Work in Social Work Practice" (National Association of Social Workers, 2005) states only that clinical social workers should conform to the values expressed in the organization's ethical code. American clinical social work is most often a matter of therapeutic casework, either independently provided or offered in organizations. Not only are there difficulties in pursuing social justice now because of the nature of the jobs social workers are doing, but very often the occupational aspirations of those seeking to fill the jobs have little to do with social justice. A recent NASW policy statement notes another factor perpetuating the siege:

Perhaps one of the most troubling realities for the social work profession in recent decades has been the weakening of professional education and credentialing among people called on to perform the duties of a social worker. The trend is a result of downsizing, devolution of government from social responsibility, cost containment through managed care, and competition with allied professions for direct services, as well as supervisory and administrative positions. In addition, as agencies face an insufficient supply of potential employees with BSWs or MSWs and a lack of interest of these individuals in working for public agencies, these agencies are emphasizing on-the-job training. Meanwhile, state employee unions have emphasized promotion based on experience rather than supporting professional education. (National Association of Social Workers, 2006)

In North America and Europe, many social work jobs have become more dependent on prescribed procedures that are relevant to specific workplaces. The everyday working terminology of social problems and social work practice has been standardized to a high degree in many settings, particularly where predetermined forms are used for "assessment" and payment is made based on treatment prescriptions for people with specific diagnoses (Arnd-Caddigan, 2005). The outline of the job is often outside the social worker's control, reflecting a social devaluation of the profession as well as the people using the social workers.

This is at the very heart of de-professionalization. The social worker quoted at the beginning of this paper was particularly concerned about how Britain's New Labour (Party) had abandoned a commitment to service users' perspectives and influence on services, the provision of a great deal of new funding for services but at the cost of less and less professional autonomy to provide them in the traditional professional senses of individualization or of organizing people with related problems.

It seems clear that many social workers hold the assumption that the society in which today's bureaucracies function is normal and natural. This assumption is implied in the overly-defined jobs, the overly-categorical views of clients or consumers or users, and the overly-prescriptive treatments that are so clearly evident today. This situation makes social justice more difficult to strive for. So, we have another hypothesis: To the extent to which a social worker sees (1) society as normal and proper, (2) those using services as deviant or pathological, and (3) treatments to change or please these people as the métier of social work, social justice will be less evident in that social worker's practice.

A recent American labor-force study conducted under the auspices of the National Association of Social Workers (Whitaker et al., 2006) has attracted much attention, largely because it strongly suggests that the number of social workers available to those expanding populations that might benefit from their work will grow much too slowly to keep up. However, it is also interesting to note particularly the information presented on licensed social workers. Although this group is not the only group of social workers covered under the ethic of the pursuit of social justice, they are the main public image of the profession. The report states that "The most common role in which licensed social workers spend any of their time is direct services (96%)" (Whitaker et al., 2006, p. 18). The report, which had a sample of 10,000 and a 49.4% response rate, revealed that only 1% of licensed social workers in the study was involved for 20 or more hours a week in community organization, 1% in policy development, and 0% in research. The proportions with any amount of time at all in these activities ranged from 19% to 34% of the nearly 5000 workers who responded (Whitaker et al., p. 19).

If it appears that we are falsely equating these "macro" roles with social justice practice, and the "micro" or clinical roles with practice that ignores social justice, we are in fact only raising the question: "How do we pursue social justice in direct practice when that practice is controlled by a political economy whose central idea is that the market is a natural and appropriate way to organize our work?" What if, in fact, we work with our students and colleagues to confront the notion that the market may hinder rather than help in the pursuit of social justice?

Perhaps the most significant thesis on how clinical social work contributes to social justice was offered by Jerome Wakefield in 1988 (Wakefield, 1988a, 1988b). Starting from a very clinical position, Wakefield attempted an integration of the aims of developing more integrated, empowered individuals with the political theory of justice offered by John Rawls. In laying out his version of Rawls' theory, Wakefield (1988a) emphasizes the importance of the individual's ability to participate in the society as an assumption of the theory, which emphasizes equality of opportunity and the advantages of a social contract that provides benefits to those at the bottom of the social ladder in an ongoing effort to equalize rights and benefits, and the role of social work in essentially making people ready to fill the roles of fully fledged citizens, able to participate and make redistributed resources work for themselves and society (1998b). While Wakefield is quite thoughtful and articulates the nuances of his position and the social aspirations of social work well, he never fully deals with the fact that social work in this approach seems to assume that Rawls' basic assumptions of a rational society of self-interested and collectively interested people hold true, and that oppressed people can be strengthened to fight oppression. This is doubtless important and doubtless occurs, but it also shows how the pursuit of social justice is framed as a rationale for psychotherapy, not as the major principle of the profession, for which one element might be clinical services. Today, many formerly clinical services are now cast as control services.

Wakefield's position is not so different from that of many people who enter the profession today, although most of them will not have thought so carefully about social justice. The majority of these are interested in becoming therapists, and social work is either the shortest route to that end, or it has less rigorous admission standards than medicine or clinical psychology. Newcomers to social work may or may not realize that much of their work will be carried out with people who have had more than their share of difficulties stemming from big social problems; and they probably are not thinking that their future clients are the people who experience personally the problems of social injustice and human rights abuses that a justice approach might more fully address in practice. This means that in social work education, if we are to "begin where the students are," we have to discuss the reasons why we have social justice material in the curriculum and then prove beyond a doubt how it is or could be relevant to students. To quote from James Fallows' (1966) talk to young journalists, "the daily goal toward which you strive, is that of making what's important interesting".

Making what is important interesting is difficult, though, because students so often believe they will be good social workers by filling the roles they have learned. Few will have much to say about work with communities, the pursuit of social justice, or reform, except perhaps as local reforms have replaced dysfunctional systems with other dysfunctional systems. Too often, student discussion of macro issues concerns managed health care or ways to provide clinical services to identified populations. Some will be politically active, and some will organize well and be important links in processes of social change; but all too few will mindfully consider the construct of "social justice" in their basic work.

Modernism

Modernism, particularly in the organization and management of social work services, forms the milieu in which social work is practiced and learned. Many social workers consider this primarily a matter of soulless management by zealous "bean counters." By modernism we mean the ideology of supposedly scientific efficiency in the positivist tradition, the dominant ideology of the development of social work in Western welfare states. In its current advanced forms, modernists see professional practice in terms of interchangeable, reliable components, such as "cases of type x, or y, or z," and "interventions," treatments, or responses that can be enacted faithfully, dependably, and with know chances of leading to the desired result. The model of modern professions is basically "in situation type S, in order to achieve predetermined outcome O, apply known intervention I" (adapted from Argyris & Schön, 1974). Modernism is so pervasive as to be unrecognized much of the time, even as its ideology has been embraced as a template for the professionalization of social work. In the absence of clarity about social justice, how various forms of justice might constitute values to aim for, and how social justice operates as an ethic, modernist ideas have led toward standardization of how we understand people and ways to respond to them, a reverence for "evidence-based" practice, and the devaluation of social work's identification with unpopular members of society.

Argyris & Schön's Theory in Practice (1975) laid a major part of the foundation of the reflective practice movement. They confronted professionals with a central question: How well-matched are the theory that one espouses and the theory that might be constructed from careful study of one's work? In our current context, we might ask how well our codes of ethics reflect what we do. It could be assumed that what we do as professionals would be consistent with the codes. But what if we were to examine our practice very carefully, combining observations and understandings to develop a theory of what our ethics and values are, much as an ethnographer would study other cultural systems, including as much relevant context and local processes of meaning-making as possible? How well would our espoused theories of ethical practice match the theories built from the study's findings? How well would they match the ethical codes we have now? And what if we were to build conceptualizations of social workers' values and ethics from the beliefs and experiences of those who use social work services, or those who shape it through law and community? Before we attempt to state definitively the relationships among our practice, our theories, and our ethics, we would be wise to examine our practice and the beliefs that we and others have about these relationships.

Research

A significant proportion of social workers now operate in systems in which the market is regarded as "the fundamental model for all human relations" (Hertzberg, 2006, p. 26) and in which social control functions have been adopted uncritically. Add to this what Webb (2006) calls the "risk" context, in which we are all at any point vulnerable to occupational change and loss. Do these workers pursue social justice? Can they? We really do not know, but we would benefit enormously from descriptive study of the work people are doing and the factors that determine its nature. We would benefit from learning how social workers make sense of this situation in practice, especially those who see themselves as successful in the modernist workplace. This approach to research confronts our most important questions: Are we working to pursue social justice, and if so, how?

One rather obvious response to the question of whether the pursuit of social justice is more an ongoing challenge, a naïve myth, or some combination of both, is that we really do not know. However, we do not think the question or the response has been addressed directly. To address the question and the response seriously, we would have to observe social workers systematically to find out what they are doing (not what we think they should or might be doing), and to what effect; that is, we would have to engage in research which asks the questions raised above regarding the relationships among practice, theories, and ethics. Without this research agenda, we are simply trying to develop educated guesses and generalizations from our own experience. We need to launch research projects, systematically examining what social workers try to achieve and what they do achieve that falls within the wide realm of social justice.

Reflexive Practice and New Routes to Freeing Social Justice

For those of us who want social work to be more clearly the practice of achieving something in the realm of social justice, there is hope. Social work is a very changeable and fluid enterprise. It is as much a collection of particular, focused practices and practitioners as it is a profession with functions and procedures amenable to generalization. Through efforts to make education, research, and organized communities of social workers more critical, better versed in conceptualizations of social justice, and cognizant of ways in which it can be pursued in today's social milieu, social work can make the pursuit of social justice less a fool's errand and more an organizing principle. However, we do not believe this is possible without the profession explicitly adopting an approach of reflexive practice that makes use of what has been, and makes use of the personal virtues and abilities of the individual practitioner. Success will depend on critical analysis and imaginative practice.

We agree with Banks' definition, which is consistent with the work of Fook (2002) and others:

Reflexive practitioners . Reflexivity may embrace reflection, but it is a more complex process ... Reflexive practitioners are aware of the dominant professional constructions influencing their practice and subject their own knowledge and value claims to critical analysis. This may involve questioning received ideas and professional practices, analyzing how truth claims are made, how professionals and service users perform as credible, reliable or morally adequate people or how form-filling prescribes action. Critical reflexivity, would focus on how dominant discourses construct knowledge and values and on the potential for challenging and changing existing power relations. (Banks, 2005, pp. 150-151)

In addition to reflexive practice, breaking the siege of the ethic of social justice will require clear alliances with other groups, including those who are deprived of social justice. There is some history of this in the program of community social work in the social settlements and before, and that have been seen in Britain and in rural areas throughout the world in social development projects. Unfortunately, today much of the work in the pursuit of social justice appears to occur outside social work, for example in the many non-governmental organizations (NGOs) at work around the world. There is some movement toward preparing social workers to work in these organizations, but how much? How central is it to the imagination and education of social work students in the USA or the UK? How many American students could say what "NGO" means, for example? These new alliances can become a part of the core of the profession's socialization and mythology.

Consider the prospect of the entire profession, not just a few splinters off the hollowed log of justice-oriented social work, being closely allied with the energetic NGOs that are oriented to environmental causes, restorative justice, and human rights causes. How long has it been since we really thought about social work as a profession that balanced its commitment to causes on the one hand, with the ongoing work of making society continue to function, on the other? What is happening in the new NGO centers and concentrations in schools of social work? How many social work students learn the principles of innovation in non-profit organizations?

There are other alliances to build; and more resonant, less hollow definitions of social justice, informed by practicality and by professionally grounded philosophy, may be developed in the process. Consider, for example, that around the world, many governments are developing social welfare provisions that they never before had, in order to protect citizens from the ill-effects of globalization. Is there a new opportunity to revisit our mythical heritage with benefit? Are there allies among those whose work is displaced by globalization? Is it really possible that Wal-Mart and other US corporations' policies on keeping prices low, including little or no insurance of employee health care, will compel the US government to take responsibility for major health reform? Could we become an ally of Wal-Mart in this sphere, or perhaps alternatively gain some influence on Wal-Mart's community-killing practices by deliberately allying with those harmed by unbridled business? There are alliances to be made in many of these areas, and they can begin at the level of face-to-face casework with individuals affected, so long as a reflexive capacity, based on truly professional, authentic relationships has been developed and valued in social workers.

Conclusions

The topic of social work and social justice is reminiscent of Helen Perlman's (1975) wonderful essay about whether self-determination in social work is a reality or an illusion. It is, she contended, nine-tenths illusion and one-tenth reality, but that reality is so important to social work's ethos that it is to be treated as central. Before we go too far in regard to this hollowed ethic, we should study practice more carefully to see to what extent social justice, defined in ways that are sensitive to the contexts of real practice, is being enacted. For now, a reflexive position to practice, one that recognizes the complexity of history and its effects on people and work environments as well as users' environments, is essential. We would benefit from "conscientization" not of "service users," but of ourselves. And the future of the pursuit of social justice in social work, if there is one, will lie not in codes of prescribed ethical behavior, but in reflexive practice and in new alliances for power.

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