The argument for this new "story" of justice unfolds through eight chapters. Chapter 1 presents a critical overview of existing theories of justice, which disagree about the meaning of justice as they define it from different disciplinary standpoints in political, moral or legal philosophy, but which nevertheless all tend to regard justice as an abstract ideal such as distributional equity. And while some theories acknowledge that justice also involves human relationships, Penman proposes, in Chapter 2, a radically different story in which human relationships are primary and the meaning of justice is not an abstract theoretical ideal but a shared relational practice—"something we do vis-a-vis each other" (p. 26)—that people co-create in a process of communicating. Chapters 3 and 4 apply this alternative approach to problems of social justice, especially racial justice, while chapters 5-7 address problems of legal justice in the dominant adversarial justice system and in innovative non-adversarial processes such as procedural, problem-solving, and restorative justice. Chapter 8 wraps up the argument.
Penman's new approach to the problem of justice is informed by pragmatist philosophy, social constructionism, and the Coordinated Management of Meaning (CMM) theory of communication developed by W. Barnett Pearce, Vernon Cronin and others beginning in the 1970s. She defines communication as "a process of joint action between active agents who, in their engagement, generate new understandings and knowledge" (p. 33). It is in this constitutive process of communicating that we jointly construct a social world, whether justly or unjustly. Penman's practical theory of communication centers on the interrelated concepts of relating, participating, and communicating. The primary focus is on relationships, rather than individuals, because human existence is essentially relational. But relationships are not static entities. They are better understood as "relating," an active process of participating with others, which is a process of communicating or joint action. The relationships that emerge in this process can be experienced as just or unjust, and so it is important for a practical communication theory to illuminate the better ways of communicating that constitute just relationships. Those better ways of communicating can be described by terms such as relational responsiveness and responsibility, genuine dialogue, civility, and mutual respect.
Penman is critical of the usual ways of talking about social justice in terms of structural inequities in society that require structural changes brought about by governmental policies to enforce equal rights, redistribute resources, etc. Those remedies by themselves will never achieve social justice, she argues, if the patterns of domination and oppression in our ways of communicating do not also change:
"When we begin with communicating as the site of change itself for issues of injustice, the need for changing our patterns of communicating in relationships takes on priority over politico-economic distributive concerns.... [If] we cannot change our form of relating with others, especially those disenfranchised in various ways, then any attempt at making structural changes in the marketplace or by the state will always be limited." (p. 73)
This relational-communication approach to justice is applied to the problem of racial justice in chapter 4. In Penman's analysis, unjust relationships emerge from patterns of communicating that reproduce historically and culturally prevalent meanings that sustain oppressive racial hierarchies. Penman uses the concept of multiple levels of meaning from CMM theory to show how the "downward" contextual force of "higher" levels of meaning (cultural, organizational, or life script) might shape interpretations and actions in two specific cases: an encounter between a White male police officer and a Black male youth, and an exchange between a Black presenter and a White progressive audience member in a diversity training session. Even the presumably well-intentioned White progressive unwittingly reproduces racist cultural assumptions injurious to the Black presenter. To achieve more just interracial relationships requires that White people in particular actively resist the force of such assumptions through relational reflexivity and dialogic listening, and in general, by being respectful toward all others. Penman emphasizes that efforts to communicate in these ways can promote positive change but cannot guarantee that better and more just relationships will emerge.
I have no doubt that the better ways of communicating between individuals that Penman recommends are genuinely better and, if widely adopted, would promote more positive interracial interactions; however, I am unpersuaded by Penman's dismissal of "politico-economic distributive concerns" and "structural changes in the marketplace or by the state." For one thing, her argument for prioritizing change at the level of personal relationships over political-economic structural change implies a double standard: The structural change approach is rejected because it fails to produce ideal social justice as conceived by normative theories, while the relational-communication approach is recommended even though it admittedly cannot guarantee that better and more just relationships will emerge. And while it may be true that the effectiveness of political-economic reforms in the absence of change at the level of everyday human relationships "will always be limited," it is, I think, equally true that the effectiveness of efforts to persuade individuals to communicate better in the absence of supportive laws and institutional policies will always be limited. Moreover, those laws and policies (such as banning racial discrimination and mandating affirmative action) must not only exist but must be enforced as necessary by the coercive power of states and institutions. If this is true, then the pursuit of social justice must rely in some part on the legal systems of justice that Penman critiques in the following three chapters.
Those chapters are richly informative and thought-provoking. Chapter 5 develops an excellent critique of the adversarial justice system from a communication point of view. Judicial processes depend on judgments of truth as the outcome of a communication process. The adversarial system assumes that truth will emerge from an adversarial process in which testimony and evidence are presented in direct examination and tested under the challenge of cross-examination by opposing attorneys. Penman argues that this adversarial process is inherently incapable of producing truth because the communication process prevents the negotiation of meaning in a relationally responsible manner. For example, witnesses under cross-examination are not allowed to speak except to respond directly to the cross-examining attorney's questions, which are often designed to force apparently damaging admissions or in general to undermine the witness's credibility.
"Viewed relationally, then, the adversarial system of justice can be construed as an oppressive form of communicating that treats all witnesses as worthy of contempt by denying them the capacity to freely negotiate their presentation of self and, in broader terms, their meanings on which the legal case presumably rests" (p. 141).
It's worth emphasizing here that fundamental source of the problem Penman describes is not that participants in the justice system are personally unable or unwilling to communicate in a relationally responsible manner, it is that the system literally forbids them to do so, which means that better judicial processes will not emerge from personal efforts to communicate in better ways without structural reform of the system. On the other hand, a justice system designed to rely on better ways of communicating would seem to depend on participants skilled and morally committed to communicate in those ways, and it's reasonable to doubt how well that condition would be satisfied in proceedings to adjudicate high-stakes disputes or accusations of crime, considering the typical range of human motivation.
However, in discussing various approaches to structural reform of the justice system in chapters 6 and 7, Penman argues that a system designed in accord with relational-communication principles such as dialogic civility would be more likely to produce truth than the adversarial system, despite the predictably bad intentions of some participants:
"This different sense of truth that emerges from the moral quality of our relations is not necessarily predicated on the requirement that all parties to the emergent truth are acting honorably, or in good faith. Indeed, as one could well expect in a court of law, there will be persons acting in bad faith, especially in their attempts to cover up their less than honorable intentions, behavior and the like. Nevertheless, an open, more narrative, form of story construction is far more likely to expose such deception than an adversarial approach that mitigates against the possibility of being able to show good faith or otherwise." (p. 170)
This optimistic expectation seems to be based more on theoretical faith than empirical evidence, but Penman does review the available evidence regarding the effectiveness of several communication-oriented approaches to judicial reform, including therapeutic jurisprudence and procedural justice (chapter 6) and restorative justice (chapter 7). There is some supportive evidence for each approach, suggesting positive relations to outcome variables such as participant satisfaction or even recidivism rates, but Penman criticizes the lack of research on the quality of the communication process itself. A more fundamental problem with all of the existing reform approaches is that they must function in the context of an adversarial system of justice, which, for Penman, is what must be set aside to achieve genuine reform.
For me, the principal shortcomings of this book are: (1) that it provides few concrete examples, and no example in depth or detail, to illustrate the better ways of communicating that it advocates, and (2) that it doesn't consider the need for systematic research to investigate specific communication practices, the barriers and dilemmas that will inevitably confront those practices, and ways of managing those problems (see Craig & Tracy, 2021). Despite its practical orientation, the discussion of a relational-communication approach to the problem of justice remains at a fairly high level of abstraction.
The bottom line, however, is that I highly recommend Justice in the Making: Relating, Participating, Communicating. Read it for its insightful survey of current theories of justice across disciplines. Read it for its trenchant critique of the adversarial system of justice and its careful assessment of judicial reform movements. Above all, read it for its provocative new approach to the problem of justice as a communication problem, a sterling contribution to social constructionist thought that challenges common assumptions about justice and about communication.
To learn more about Penman's current thinking, read her Substack newsletter, "What if...? ideas for a better social world." And for more on CMM theory and practice in general, visit the website of the CMM Institute for Personal and Social Evolution.
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