Nancy Fraser’s tridimensional approach to justice: Contributions and provocations to the practice of domestic litigators (2025)

Nancy

Fraser

Almost a decade after its first edition, Nancy Fraser’s book Scales of Justice: Reimagining Political Space in a Globalizing World remains inspiring for many fields of thought. By expanding and organizing her understanding of justice, Fraser compels us to push the boundaries of equality both in theory and in practice and to reimagine the promotion of rights beyond national borders. This review will focus less on the theoretical implications of Fraser’s work and more on the provocative and inspirational aspects it provides for those who litigate on a daily basis for the promotion of justice before national legal systems across the world. I intend to present some of the insights and challenges Fraser’s book poses for those who—as human rights litigators—operate in the crossroads between social movements and state institutions, affirmation and transformation, law and politics.

The title’s phrase “Scales of Justice,” which evokes both the image of the balance and the image of the map, summarizes the core argument of the book. The balance, according to Fraser, stands for the debate around the “substance of justice” and development of a scale through which “heterogeneous claims can be impartially weighted” (at 2). With regard to the substance, the distributive conception of justice, on the one hand, sees the distribution of economic goods as a remedy against economic exploitation, marginalization, and deprivation. On the other hand, the recognition dimension of justice requires cultural or symbolic change to fight cultural domination, nonrecognition, and disrespect.1 In this scenario, Fraser points out an additional challenge: the “plurality of competing idioms for articulating claims, which threatens to explode the conventional image of impartiality” (at 2–3). In other words, the balance dimension of the scale encompasses not only the dissension around what kind of values should prevail in a plural society in which colliding claims compete, but also the disagreement around what kind of criteria should be used to decide disputes between claims and groups that do not share the same “underlying ontological assumptions” with reference to justice (at 3).

At this point, Fraser’s argument provides a key insight for litigators. The lack of a single scale to weigh justice claims requires a cautious approach when selecting a conception of justice to base claims on a given case. Believing that a certain set of arguments will be more convincing in a given context, litigators may apply them strategically to win a specific case, even when they embody a conception of justice that could not be consistently applicable to other cases. In fact, the use of a given rationale in a certain case can inadvertently turn out to be counterproductive for future cases, generating collateral effects that can damage the struggle for rights conducted by other individuals and groups in the same progressive field.

Litigators’ impulse to promote immediate results in terms of rights for the group they represent can be a cause for this atomized conduct, as well as the format of legal proceedings (which frames the problem as a limited dispute between two sides and does not necessarily take into account systemic effects of the decision) and the lack of articulation among the different social movements and groups of interest themselves represented before the national judicial and political instances.2 In a context of instability with respect to the “criteria for assessing claims,” it becomes harder to assess if specific singular victories will, in the long run, turn against other legitimate claims for justice and, more broadly, against the implementation of an inclusive and comprehensive progressive agenda of justice. Fraser’s analysis poses, therefore, an important challenge for thinking about the promotion of justice under the threat of “incommensurability,” i.e. in a context of uncertainty regarding the possibility of “heterogeneous claims really be(ing) fairly weighted on a single balance” (at 3). At the same time, it encourages awareness of the consequences of the strategical usage of certain arguments and tactics, and inspires an articulation among the different progressive struggles toward a more systemic and harmonic manner of promoting justice.

Besides the balance, the other image evoked by the phrase “Scales of Justice” is the map, an expansion of Fraser’s prior theory to include a political dimension of justice that arises when the Keynesian–Westphalian frame cannot be taken for granted anymore due to globalization. According to Fraser, the cartographic image stands for the “problematic of framing” and the debate around “the bounds of justice.” The focus here is not on the “what” of justice” but on the “who”—“who counts as a bonafide subject of justice” (at 5)—and on “second-order, meta-level questions” regarding the appropriate frame “within which to consider first-order questions of justice” (at 15). The corresponding problem of this dimension of justice is misrepresentation, that contains two different levels. One level of misrepresentation is “intra-frame representation,” which regards the exclusion of participatory parity within the modern territorial state of individual and groups “that are already in principle included in the political community” (at 20).

The other level of misrepresentation, however, calls into question the territorial state as the “appropriate unit of justice itself” (at 20). It “concerns the boundary-setting aspect of the political” and arises when “the community’s boundaries are drawn in such a way as to wrongly exclude some people from the chance to participate at all in its authorized contests over justice” (at 19). Fraser names this phenomenon “misframing” and defines it as the “gerrymandering” of the political space by the territorial state, at the expense of those “poor and despised [who are blocked] from challenging the forces that oppress them” (at 20). The identification of “misframing” as a political dimension of justice leads to an additional aspect of the issue: the need to “democratize the process of frame-setting” (at 22). Beyond establishing adequate criteria for defining the “who” of a given community, Fraser exposes the necessity of challenging and democratizing the “how”—the process through which the “who” is determined (at 24). Considering that the causes of many injustices in a globalized world, such as financial markets, networks of global media, and cybertechnology and biopolitics, are not “territorial in character,” Fraser suggests the substitution of the “membership principle” which uses the nationality as a criterion to define who are the subjects of justice in a given community, with the “all-subjected principle,” according to which “all those who are subjected to a given governance structure have moral standing as subjects of justice in relation to it” (at 65).

The addition of the representation dimension to Fraser’s theory engenders massive challenges for domestic litigators. At the level of “ordinary politics,” misrepresentation can frequently be a source of conflict between national and international law in contexts where the international law requires the participation of members of the community traditionally excluded by the domestic law, as, for example, convicted prisoners.3 Above and beyond, the problem of “misframing” calls into question domestic litigators’ field of activity itself, i.e. the territorial state. With Fraser’s provocations in mind, pressing questions arise. On a more basic level, the first one would be whether the idea of the “all-subjected principle” could be applied within the domestic legal system. One possible path would be expanding the participation of new actors in the domestic legal proceedings, not only as plaintiffs “subjected to a given governance structure” but also as defendants when they constitute the “governance structure” itself. However, this kind of solution would lead to more complex questions: to which extent the advancement of justice through the national state can be made without the reinforcement of injustices derived from territorial state-based framing? Is it possible for domestic litigators to contribute to the changing of the frame and the framing process from the inside without increasing the risk of promoting new forms of subjectification?

If one considers that the globalized scenario described by Fraser “coexist[s] with older models of state-centric, Westphalian polities still represented by the 195 states in the United Nations,” some of which “have not yet attained and may never attain the classical model of Westphalian territorial sovereignty, legislative authorship, and administrative authority,”4 it is hard to believe that domestic litigation has no role at all to play in matters of political justice. Especially when litigation is seen “beyond the narrow formality of legalism,” as part of a lawyering process that occurs “on many levels: analytical, creative, critical, reflective, and strategic.”5 In fact, the current moment of conceptual instability, which Fraser names “abnormal times,” can be seen as an opportunity for domestic litigators to experiment and use critical imagination for change, “a moment of opening, which breaches the exclusions of normal justices, to embracing claimants the latter has silenced, and disclosing injustices the latter has occluded” (at 73–74).

At this point it is helpful to recall Seyla Benhabib’s use of the idea of a critical and reflective dialogue between national and international spheres. According to Benhabib, while democratic authorship and popular sovereignty “remain necessary guidelines for our democratic praxis as well as theory even in view of the new global arrangements,”6 these concepts present their limits, since the people “includes not only active citizens or the democratically enfranchised ones, but also those who have neither voice nor representation or do so to a very limited extent (such as foreigners, migrants, asylum seekers), as well as those, who like convicts, have lost such voice and representation.”7 In both cases, the international and national levels can mutually interact and reflexively contribute to widen and deepen the praxis of both democracy and human rights on each respective arena. But how this can be operationalized in practice from the point of view of the domestic litigator? How can we participate in this reflexive dialogue as domestic litigators without sacrificing Fraser’s “theory normative force”? How can we develop an energetic and yet careful practical approach before a domestic legal system that, to reword Fraser’s statement, “seeks to locate normative standards and emancipatory political possibilities precisely within the unfolding constellation”8?

These questions need to be answered, and providing an answer requires taking into consideration local historical circumstances.9 Nonetheless, perhaps the most powerful contribution of Fraser’s work for understanding the role of the domestic litigator in the present time resides in the stimulating questions posed by her book. Beyond its theoretical impact, Fraser’s Scales of Justice has a fundamental contribution to offer to the daily practice of rights adjudication. By being at the same time provoking and inspiring, it brings awareness of the need of considering justice in its multiple dimensions in a consistent and coherent way and, as an alternative, provides motivation for engaging in legal and political imagination to challenge injustice across the world.

1

On this topic see, e.g., Nancy Fraser, Social Justice in the Age of Identity Politics: Redistribution, Recognition, and Participation, lecture before the Wissenschaftszentrum Berlin für Sozialforschung (1998) (transcript available at https://www.ssoar.info/ssoar/bitstream/handle/ document/12624/ssoar-1998-fraser-social_ justice_in_the_age.pdf?sequence=1; accessed Sep. 7, 2018), and Fraser’s arguments in Nancy Fraser & Axel Honneth. Redistribution or Recognition? A Political-Philosophical Exchange (2003).

2

Orly Lobel, The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics, 120 Harv. L. Rev. 950–952 (2007) (discussing the problem of fragmentation resulting from litigation); Scott L. Cummings & Deborah L. Rhode, Public Interest Litigation: Insights from Theory and Practice, 36 Fordham Urb. L.J. 638 (2009).

3

See, e.g., the debates around the restrictions of political rights for convicted prisoners in the United Kingdom in Seyla Benhabib, The New Sovereigntism and Transnational Law: Legal Utopianism, Democratic Scepticism and Statist Realism, 5(1) Global Constitutionalism 109 (2016).

4

Id. at 125.

5

John O. Calmore, Social Justice Advocacy in the Third Dimension: Addressing the Problem of ‘Preservation-Through-Transformation, 16 Fla. J. Int’l L. 615 (2004).

6

Benhabib, supra note 3, at 126.

7

Id. at 135.

8

Fraser’s original sentence refers to the need for a “critical-theoretical approach that seeks to locate normative standards and emancipatory political possibilities precisely within the unfolding constellation” (at 77).

9

For criticisms on the abstraction of Nancy Fraser’s theory, see George Lawson, A Realistic Utopia? Nancy Fraser, Cosmopolitanism and the Making of a Just World Order, 56(4) Pol. Stud. 881 (2008).

© The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

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