A social justice score card for dismissal protection.
| Author | Huyser, Rene |
| Position | Report - Statistical data |
Concepts like social justice, human rights, fair treatment, and equality have become part of a universal language. A generic social justice framework is proposed here. This framework promotes the development of social justice indicators. It cumulatively reveals a tangible score-card capable of measuring and comparing social justice allegiance inherent to any particular legal doctrine. The paper reveals the possibility of customising this framework to measure social justice compliance in dismissal protection. The Social Justice Score-card provides a quantitative measuring instrument to assess qualitative data on social justice ideology. This instrument exhibits significant potential for the assessment and promotion of social justice relating to employment legislation in general and dismissal protection, specifically within any particular domestic jurisdiction.
Introduction
Nelson Mandela said: For a revolution is not just a question of pulling a trigger; its purpose is to create a fair and just society (Mandela as cited per Inagist, 2013).
In South Africa, Madiba's legacy of a fair and just society is apparent in present-day protective, prohibitive and prescriptive legislation. International organizations like the United Nations (UN), the International Labor Organization (ILO), the European Union (EU), and the Organization for Economic Cooperation and Development (OECD) have resolutely endeavored to advocate social justice as a necessary world policy.
Whereas social justice principles are embedded in almost every aspect of civilized societies, these morals are of particular concern in terms of employment protection. This paper is premised on the conviction that a generic social justice framework can assist in the identification and design of social justice indicators, which revealed a social justice score-card capable of measuring and comparing social justice compliance inherent to any particular legal doctrine. The purpose of this paper is twofold. Firstly, a generic, conceptual social justice framework is proposed. Secondly, a selected doctrine, namely employment protection relating to dismissals is examined in terms of the proposed social justice framework. This customized social justice framework identifies and employs number of social justice indicators. Collectively, these social justice indicators reveal a tangible score-card capable of measuring and comparing social justice compliance in dismissal protections across divergent jurisdictions.
In this paper, international notions of social justice and its place in the world of work are discussed. Three particular international organizations, namely the UN, the ILO, and the OECD, have advocated social justice as a necessary world policy. For contextual purposes, these organizations were analyzed and their perspectives interpreted, in so far as they relate to the development of an instrument that can measure social justice notions in dismissal protections and dispute resolution. In short, we argue that having successfully developed a social justice score-card, foreign legal jurisdictions may be measured and compared in terms of their allegiance to social justice, and, with minor modification, it can also be used inter alia by employers to measure social justice compliance in company policies and procedures.
Historical Development of Social Justice
The earliest translation of the term social justice seems to have been recorded in the Christian Bible with reference to the Jubilee year. In an attempt to adjust hierarchical inequalities and, specifically, inherited inequalities, slaves were released, land was returned to initial owners, and debts were excused. Social justice was applied to relieve unfair conditions in relation to individual property rights; however, it was not consistently enforced (Reisch. 2002).
Both Plato and Aristotle applied justice in the context of and, more importantly, as a consequence of the individual's social status. Un-equals were necessarily treated unequally. Social justice, therefore, reinforced unequal distribution of benefits and burdens, and the social order was never challenged (Reisch, 2002).
In the teachings of Judaism, Buddhism, Islam, and Christianity, the idea of humane, righteous, and just treatment of people universally brought about a new concept of social justice. Generally, social justice meant justice beyond social status, albeit that the religious institutions themselves sustained a hierarchy resulting in unequal distribution of benefits and burdens amongst individuals (Reisch, 2002).
During the 17th century, consolidation of state power (the birth of an external authority, namely the state) was the order of the day. A collective or state authority became responsible for ensuring social justice through the creation and enforcement of a system of laws prohibiting individuals from harming each other. This period denotes the inception of what became known as industrialized capitalism (Reisch. 2002).
The age of revolution followed, which shaped western societies significantly. Social justice was viewed as an articulation of individual liberties, expressed in terms of equal opportunities, rights, and outcomes (Rousseau, 1754). However, the French Revolution and, similarly, the American Revolution related social justice to the pursuit of happiness. Human well-being, collective and individual, should be the aim of what is socially just (Reisch, 2002).
During the 19th and 20th centuries, it became evident that tension exists between social equality and individual liberties (Nozick, 1974). The teachings of Karl Marx reiterated the principle that individuals are defined by their social relationships and that their social relationships are dependent on the economic structure of society and, therefore, on the classes such a structure produced (Marx, 1818-1883). Marx proclaimed that inequality is exclusively a consequence of political and/or economic structures. According to Marx, justice would be achieved when individuals received what they needed, not what they deserved, according to their social echelon. Marx concluded that redistribution should be based on human need and value, and not on status or productivity. During the same period, liberals advocated the preservation of individual liberty, whereas Marxists argued for social equality.
As a 20th Century Western Concept
Primarily, the Western understanding of the concept of social justice encases the notion of fair distribution of the so-called societal goods (the benefits and burdens created by a society). The dilemma is to determine what is fair (Reisch, 2002). A number of impressionists have grappled with the concept of social justice within other forms of justice. Miller (2002), for example, defined social justice as the greatest net balance of satisfaction for society.
This notion translates into the assumption that social justice is a standard of morality, and the aim is to ensure that the greatest good is distributed amongst the greatest number of people in a society. However, this dispensation leads to an unequal distribution of goods, as quite often the rights of minorities are sacrificed for the good of the majority.
According to Ferree (1997), social justice is an act based on a philosophy known as social morality, which deals with the duty of each of us to care for the common good,-where the common good refers to the network of customs, conventions, laws, and social organizations denoting our social institutions. In an organized setting (a society), these social institutions determine and influence the way in which we interact with each other as members of society. Ferree (1997) holds that the anthology of these institutions reflects our social architecture, and that: "Our social architecture improves with our understanding and application of core values and fundamental principles, especially universal principles of social and economic justice. The design quality (from both a justice and efficiency standpoint) of our laws and social institutions determines the quality of how people 'relate' to each other, to their physical environment, and to the process of technological change. It determines whether those relationships bring harmony or conflict, abundance or waste, human development or degradation, a culture of life or a culture of death".
Similarly. Rawls (1971) defines social justice as: "The virtue which guides us in creating those organized human interactions we call institutions. In turn social institutions (when justly, organized), provide us with access to what is good for the person, both individually and in our association with each other. Social justice therefore imposes on each of us a personal responsibility to work with others to design and continually perfect our institutions as a...
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