What Is "Just" or "Fair" in the World?

sławomir redo

what is “just” or “fair” in the world? english as an intercultural contribution to a united nations “common language of justice” Sławomir Redo

The single biggest problem in communication is the illusion it has taken place.

England and America are two countries divided by a common language.

George Bernard Shaw (1856–1950) A different language is a different vision of life.

Federico Fellini (1920–1993)

1. introduction This essay is written in appreciation of Prof. Skupiński’s deep academic interest in the human rights standards and norms in the administration of criminal justice, evidenced, inter alia, by the book edited in 1995 by him1.

The essay focuses on one essential component of those standards and norms, namely that the administered treatment of offenders and victims The author thanks Prof. Frank Höpfel (the University of Vienna, Austria) for his comments on the earlier draft of this article. [From the Editor:] Dr. hab.; Visiting Lecturer/Privatdozent at the University of Vienna (Austria); United Nations Office on Drugs and Crime (UNODC, 1981–2011). As a UN Senior Crime Prevention and Criminal Justice Expert involved in technical assistance projects implementing the United Nations law against organized crime in Central Asia. In other capacities assisted in the development and implementation of the UN crime prevention and criminal justice standards and norms, including cooperation between developing countries (South-South) and urban crime prevention. Specializes in UN intercultural and international crime prevention and criminal justice education. Member of the Academic Council on the United Nations System, and of the Austrian Society for Criminal Law and Criminology; email s@redo.net.

Standardy praw człowieka a polskie prawo karne (Human Rights Standards and Polish Criminal Law), ed. J. Skupiński, J. Jakubowska-Hara, Warszawa 1995.

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should be “just” and “fair” – two English-language adjectives often appearing in these instruments. Both run the life of their own in the United Nations (UN) world.

In the light of these two legal terms this essay reviews how the UN crime prevention and criminal justice standards and norms can be implemented better in the world so different from the time when the book edited by Prof. Skupiński first appeared – the time of pre-globalization. At about the time when that book appeared, two ground-breaking developments occurred in the UN signaling a new phase in crime prevention and criminal justice: adoption of the Guidelines for the prevention of urban crime (Economic and Social Council resolution 1995/9 of 24 July 1995) and the establishment in 1996 of the UN-Habitat Safer Cities Programme, now global and the first-ever UN urban technical assistance programme.

Drawing on such new urban policy developments and research, including emerging evidence relevant to global crime prevention and criminal justice, this essay argues that: 1) the English language and the Western concept of a Welfare State are both at the core of universalizing the sense of “justice” and “fairness” in the globalization era; 2) the “urban mindset”2 is a viable instrument to advance “justice” and “fairness” interculturally and globally.

In the above regard, this essay detours from a traditional legal and criminological treatment of the UN standards and norms. It ventures into the field of sociolinguistics, logic and culture – until now uncharted for the implementation of those standards and norms in a contemporary world.

Against the above background, this essay develops the idea of the intercultural harmonization of the concepts of “justice” and “fairness” for technically a more effective and humane treatment of offenders and victims of crime.

2. what is “just”, what is “fair”?

Unlike the academic world which has, e.g., the John Rawls’ theory of justice defining “justice” as “fairness”, or Aristotle’s definitions of both concepts in his Ethica Nicomachea, neither “justice” nor “fairness” in UN legal terminology have been defined by any treaty instrument.

R.E. Park, The City: Suggestions for the investigation of human behaviour in the urban environment, and Community organization and juvenile delinquency, both in: R.E. Park, E.W. Burgess, R.D. McKenzie, The City, with an Introduction by M. Janowitz, Chicago 1925/1967, pp. 1–46, 99–112.

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In the UN world, both concepts run a life of their own3. Regarding “justice”, according to the commentators on the UN Charter, it merely “means something different…[in] international law” than in domestic law. In the UN it does not refer to natural law4, to which Rawls’ and Aristotle’s concepts belong. In the UN Crime Prevention and Criminal Justice Programme specifically, ”justice”, qualified either as “criminal” or “juvenile”, has really been only a gradually and constantly developing concept, driven and shaped by various orientations regarding its meaning and scope, as stipulated in the Programme’s international criminal law and other legal instruments5.

Regarding “fairness”, although in art. 14 of the International Covenant on Civil and Political Rights international jurisprudence defines what is a fair trial, at the domestic level important fair trial procedures vary from one legal system to another.

Even less conclusive are the findings of what “justice” and “fairness” mean in the UN-Habitat’s Safer Cities Programme. UN-Habitat Global Settlements Report6 notes that the criminal justice system, including police, courts and prisons, is poorly adapted to the rapidly changing urban environment and is unable to respond to the concerns and needs of urban dwellers, particularly the poor. The report informs of a number of countries that are in the process of reforming their police and justice systems and that increasingly recognize the central role of municipalities as key actors and local authorities are developing community-wide strategies for addressing crime and violence. But the report stops short of indicating any common thread in responding to “urban justice” needs.

This is way only for its internal use, „justice” has been qualified as “an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large” (UN doc. S/2004/616, The rule of law and transitional justice in conflict andpost-conflict societies, § 7). See also footnote 5.

4 B. Simma (ed.), A. Paulus, E. Chatodou (ass. eds), in collaboration with H. Mosler, A. Radelzhofer, Ch. Tomuschat, R. Wolfrum, The Charter of the United Nations. A Commentary, Oxford 2002, vol. 1, p. 36.

5 “Justice” in these terms is an incremental “common good” with value-added treaty or soft-law provisions. Therefore it hardly can be defined in the United Nations law which in this part is of a developmental nature, driven by arts. 13 and 55 of the UN Charter. For an updated list of such provisions, see S. Redo, M. Platzer, The United Nations role in crime control and prevention: from “what?” to “how?, in: P. Reichel, J. Albanese, Handbook of Transnational Crime and Justice, Second Edition, Sage Publications 2013, forthcoming.

6 Enhancing Urban Safety and Security, Global Report on Human Settlements 2007, Earthscan, London–Sterling, VA, pp. XXVIII–XXIX. 3

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3. a call for a “common language of justice” No wonder that in the absence of any internationally recognized definitions of “justice” and “fairness” (or the thread thereof at the urban level), ever since the UN has been established there has been a growing need to better coordinate the efforts of Member States and many technical assistance agencies to improve the delivery of “rule-of-law” worldwide by operationally defining what is meant by it. Aware of that need, the Secretary-General called in his report on the rule of law for a “common language of justice”.

That call stemmed from realizing the fact that: “Concepts such as ‘ justice’, ‘the rule of law’ and ‘transitional justice’ are essential to understanding the international community’s efforts to enhance human rights, protect persons from fear and want, address property disputes, encourage economic development, promote accountable governance and peacefully resolve conflict. They serve both to define our goals and to determine our methods. Yet, there is a multiplicity of definitions and understandings of such concepts, even among our closest partners in the field. At an operational level, there is, for some, a fair amount of overlap with other related concepts, such as security sector reform, judicial sector reform and governance reform. To work together effectively in this field, a common understanding of key concepts is essential”7.

No other formal entity in the world, be it the World Bank, Organization for Economic Cooperation and Development, be it a powerful State or an influential international association of linguists or interpreters, no other informal arrangement of any character can contribute through a “common language of justice” to the “fair administration of justice”8 in a way the UN can, drawing on its political and operational field-experience, and the input of the academia.

4. why is the intercultural harmonization of the concePt of “justice” and “fairness” needed?

Three examples will serve here in finding the answer to the above question9. A first example comes from the time of the drafting of the UN Charter. A member of the South African delegation, veteran Field Marshal Jan Smuts originally wrote the opening lines of its Preamble as “The High UN doc. S/2004/616, § 5.

Ibidem, § 2.

9 For more examples see: S. Redo, Blue Criminology. The Power of United Nations Ideas to Counter Crime Globally. A Monographic Study, The European Institute for Crime Prevention and Control, affiliated with the United Nations 2012, pp. 209–211.

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Contracting Parties, determined to prevent a recurrence of the fratricidal strife which twice in our generation has brought untold sorrow and loss upon mankind” which would have been similar to the opening lines of the Covenant of the League of Nations.

There was a considerable argument among the drafters whether the proposed text was written in good English. The U.S. delegation criticized the text for its “clumsiness”, as “lacking any soul” and “a literary and intellectual abortion”10. Virginia Gildersleeve, a member of the US delegation and a Professor in English and comparative literature was successful in changing and shortening the draft Preamble11. The drafting Committee concurred. It emphasized that the Preamble “should have the harmony in ideas, the tone in words, and the light, which can awaken the imagination of men to the points at issue, kindle their feelings, and move them”12 .

Consequently, the agreed text reads: “We the Peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind” and “to unite our strength to maintain international peace and security”13.

A second example14 comes from the Korean War (1950–1953). On 23 April, 1951, no fewer than three Chinese divisions attacked one British brigade. Four hundred men from one of its battalions, the Gloucestershire Regiment, were cut off and surrounded on the crest of Hill 235 (“Gloucester Hill”), located south of the Imjin (The Republic of Korea). The battle at the Gloucester Hill started badly, then got worse. One British commander – with characteristic understatement – described the Gloucesters’ situation to his US counterpart as “pretty sticky”. This was misinterpreted on the American side as a situation other than critical. Reinforcements did not reach the British in time. Only 39 British soldiers escaped. The rest were either killed or taken prisoner.

A third example comes from Thailand. When in the late 1950s Thailand declared obtaining pure water a national priority, the US, one of S.E. Schlesinger, Act of Creation: The Founding of the United Nations: A Story of Superpowers, Secret Agents, Wartime Allies and Enemies, and Their Quest for a Peaceful World, New York 2004, p. 236.

11 Ibidem, p. 237.

12 UN doc. 885 I/1/34, Report of Rapporteur of Committee 1 to Commission I, at p. 5, in: Documents of the United Nations Conference on International Organization, San Francisco, 1945, vol. VI, Commission I, General Provisions, London–New York, United Nations Information Organizations 1945, p. 390.

13 Regarding the letter and spirit of the United Nations language and the difficulties in its intercultural comprehension, see: S. Redo, Blue…, pp. 44, 209–211.

14 Ibidem, p. 210.

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the foreign donors, offered technical assistance in drilling in hundreds of villages hand-pump wells. Since “technical assistance” as an art of helping one another has been only at its nascent phase, the US had very little local and general experience. Consequently, only few pumps still functioned after six months because the Thai villagers did not maintain them. It was found that those pumps broke, because there was no local authority identified for their maintenance. Incidentally, only those pumps located in the Buddhist monasteries’ grounds had functioned15.

Among many conclusions which may be drawn from these seemingly unrelated to “justice” and “fairness” examples, three are relevant for “a common language of justice”, and, in fact, for the concept of “justice” itself. First, as the two initial examples show, the communication in English alone indeed does not warrant a successful outcome of defining “what is what” even between native English-speakers (and is even more problematic for non-native speakers, in fact, also in any other language). Second, as the last example shows, for a successful outcome one should appreciate the local context in which crime prevention and criminal justice initiatives can work, if and when the identified local players cooperate. Third, whether or not a foreign technical assistance provider has a commanding authority, one must be sensitive to other countries’ cultural precepts and translate technical assistance “words” into “deeds” not only according to those precepts, but also in recognition of the general expertise involved in rendering it16.

The above three examples thus illustrate how since the inception of the UN, there has been a growing need to harmonize interculturally the delivery of technical assistance in the crime prevention and criminal justice area, for if within one language culture there are obstacles to communicate effectively, how can others communicate and understand in their own languages with their own national spirit, what is meant for and from them, in social justice and global security terms?

5. why “social justice” can be uniVersalized as english and in english?

When in 1945 the UN Crime Prevention and Criminal Justice Programme was conceptualized in the light of social justice provisions of art. 55 of the Charter, the Second World War allies (in particular, the US 15 A. Niehoff, Theravada Buddhism: A Vehicle for Technical Change, Human Organization No. 23 (1964), pp. 108–112.

16 See further S. Redo, Blue…, pp. 194–199.

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and UK) very much emphasized the need to universalize the Welfare State, as an expression of economic solidarity between poor and rich nations17.

This evergreen postulate arose out of the conviction of the Western countries that poverty breeds crime. And these countries began feeling the burden of crime that after 1945 continued to grow in its international dimensions. First evidence was already delivered in 1946 by the criminological study by Mannheim18.

It was the time when English strengthened its importance as a lingua franca advancing universal social justice19. Not coincidentally and not for its apparent simplicity, this lingua franca is therefore presently important for the UN with its 193 Member States which house over 5000 ethnic groups with some 600 language groups20, and which in its Charter emphasizes solidarity and harmony through international economic cooperation and peaceful settlement of disputes. Now, “English spreads downward in each national society: direct communication, life or online, without the expensive and cumbersome mediation of interpretation and translation, is of decisive importance if not only the rich and the powerful, but also the powerless and the poor are to communicate, network, cooperate, mobilize effectively across borders”21.

This leads to the questions on the effectiveness of communication in English: How effective that language may be, given the fact that multicultural as the UN is, it nevertheless projects its global messages first of all from English-speaking interactions among the staff of the UN Secretariat and Member States’ delegates, and yet all with very different cultural backgrounds, including language characteristics? How can such a language be truly effective worldwide for the intercultural implementation of a “common language of justice”?

P. Baldwin, The Politics of Social Solidarity: Class Bases of the European Welfare State, 1875–1975 Cambridge University Press 1999; B. Rothstein, Just institutions matter: The moral and political logic of the universal welfare state, Cambridge University Press 1998, pp. 19 & 23–29. The development of concomitant international criminal policy interest in Welfare State is discussed in: S. Redo, Blue…, p. 49.

18 H. Mannheim, Criminal Justice and Social Reconstruction, London 1946.

19 M. Pawlak, On kairos in intercultural communication: Application of the idea in multinational encounters, in: Language, Culture, Meaning. Studies in Logic, Grammar and Rhetoric, ed. by H. Świączkowska and K. Doliwa, 28(41), University of Bialystok 2012, p. 199; P. Van Parijs, Cultural diversity against economic solidarity?, in: Cultural Diversity versus Economic Solidarity, ed. P. Van Parijs, Brussel 2004, pp. 391–392.

20 A. de Swaan, Words of the World. The Global Language System, Cambridge 2001, p. 1.

21 P. Van Parijs, Cultural…, p. 392.

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6. why urban “justice” and “fairness” can “common language of justice”?

uniVersalize and oPerationalize a

Regarding the question on cultural backgrounds and of the intercultural implementation, the answers are partly contained in the answer to the third question (a fuller reply comes next). In this order, it should be at the outset acknowledged that globalization involves the weakening of the capacity of a nation-state to direct and organize its economy. Experts point to that among factors that contribute to the redefinition of the role of States vis à vis cities is not only a growing web of international laws (that now incorporate UN urban crime prevention guidelines), of intergovernmental organizations, multinational corporations, trade relationships, and transnational civil-society organizations, but also the devolution of legal responsibilities from States to cities, as the latter develop their own relationships to the global economy, including the nonprofit and private sectors. To some degree, those relationships bypass national politics and policies and form urban governance across national boundaries22.

Urban governance facilitated the growth of “global cities” and “technopoles”. There high-tech industrial “clusters” achieve a better position as a result of place-based synergies that occur with the co-location of businesses. When a business locates in a region that has other businesses in the same industry, it is possible to take advantage of informal innovation networks, a talented labor force, industry-appropriate financial and legal services, and networks of linkages with regional governments and universities. All around the world, national and regional governments struggle to build metropolitan industrial clusters with the hope of becoming the next Silicon Valley23 (in Poland, the case of the city of Wrocław is best known). “Urban mindset” is at work across the national borders. This process has created opportunities for local governments and civil-society organizations, but it has also created new patterns of exclusion24.

About 80 years ago the US “Chicago school” multicultural urban sociologist Ezra Park 25 (known in criminology for his pioneering studies on exclusion/social distance and social disorganization) precipitated that the city is something more than a congregation of individual men and of social conveD. J. Hess, Localist Movements in a Global Economy Sustainability, Justice, and Urban Development in the United States, Cambridge 2009, pp. 5–7.

23 Ibidem.

24 D. Holland, D. Nonini, C. Lutz, L. Bartlett, M. Frederick, T. Guldbrandsen, E. Murillo, Local Democracy under Siege: Activism, Public Interests and Private Politics, New York 2007, pp. 57–83, 155–198.

25 R. E. Park, The City…, See also: L. Mumford, What is a City?, in: M. Miles, T. Hall, I. Border, The City Cultures Reader, London–New York 2004, pp. 29–32.

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niences of various sorts, like police stations, courts, hospitals, theaters, shops etc. The city rather is a state of mind. It is a body of customs and traditions, and of the organized attitudes and sentiments that inhere in these customs and are transmitted with this tradition. These attitudes and sentiments contribute to urban development through which people eventually develop themselves.

He noted that the city is a kind of psychophysical mechanism in and through which private and political interests find not merely a collective but a corporate expression. In other words, the city is not merely a physical mechanism and an artificial construction. The city through a vital processes of its residents is a product of nature, and – in particular – human nature. As such city life has two basic features: it not only magnifies the darkest sides of human nature (including its manifestations in delinquency and crime), but also expresses the deepest attempts of changing the world according to our desires. Among those desires is that for urban justice and fairness, and countering exclusion through claiming the right to the city.

As regards “urban justice”, its first welcome and clear feature are the “Houses of Justice”. They deal with petty criminal cases and neighborhood conflicts, and have originally been established in the 1970s in Australia and Canada in remote communities for indigenous sentencing26. Nowadays, examples are many. Most of them involve poor communities in the cities.

Their residents were otherwise denied meaningful access to justice. The purpose of the Houses of Justice is to bring together in one place a number of municipal services responding to criminal and family violence, and to help clients resolve problems together. The continued use of restorative justice has the potential to impact community life by changing the ways in which the members respond to conflict. Since 2006 when the UNODC published its “Handbook on Restorative Justice Programmes”, the international community enjoys a very professional guidance on their promotion worldwide. There is no question that the introduction of restorative justice principles at the city-level accelerates developing one sense of justice globally.

It may be further strengthened by an even newer urban security policy whereby city authorities and residents are involved in the rehabilitation of offenders and prevention of reoffending, initiated in early 2013 by the European Forum for Urban Security (Paris, France).

As regards “fairness”, two experiments document its growing common sense across cultures and cities as the engines for spreading that sense.

In a first experiment (“Ultimatum Game”), several randomly composed groups of three strangers had to negotiate separately how to share among themselves certain amount of money. In each group there was one person who had that money to give to two other persons as one-time offer-“take 26

UNODC, Handbook on Restorative Justice Programmes, Vienna 2006.

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it or leave it”. In several iterations of this transaction, all involving either acceptance or rejection of this one-time offer, those two who had to “take or leave” agreed to take the money when the offer ranged between 43–48%, with the 50% as the most common offer. They rejected the giver’s lower offers (20%), probably finding them unfair and mostly benefiting the giver.

That giver was “rejected” (or “excluded” in crime prevention terms).

Research from conducting hundreds of trials of the “Ultimatum Game” with thousands of undergraduate students in Europe, Japan and the USA has shown that the responders frequently rejected low offers and proposers frequently proposed near equal divisions, even though it was to their monetary disadvantage. Average proposal for students from all over the world was usually between 42 and 48%.

Early experiments on undergraduates seemed to suggest that there was a universal sense of fairness. However, extended research in different cultures (hunter-gatherers, slash-and-burn agriculturists, nomadic pastoralists) has shown much cultural variation in responses, indicating that local cultural conditions (ethnicity, i.e. kinship/triabalism) play an important role in how people approach cooperation27.

In a second experiment on the perceived price fairness in China and the United States, the researchers found some unique shared cultural and marketplace characteristics. When Chinese consumers were comparing prices paid by another customer for the same good, they were more sensitive than Americans to their relationship with the vendor (whether he was a friend or stranger) and to the nature of the vendor-customer relationship (loyal versus first-time buyer)28.These differences, attributed to collectivist/ individualist cultural characteristics of Chinese/American consumers that orient Chinese consumers toward the in-group were supported by experimental manipulation of Eastern/Western persons’ self-perception, that is how do they see themselves vis à vis others (strangers/society).

Last but not least, the experiment documented that in a highly competitive urban marketplaces consumers’ fairness reactions to across-vendor price differences were similar across cultures. Regardless of the cultural background, consumers knew what was fair or unfair. It appears that because of urbanization there are remarkably similar responses to fairness among Easterners and Westerners.

27 J. Henrich, R. Boyd, S. Bowles, C. Camerer, E. Fehr, H. Gintis, Foundations of Human Sociality: Economic Experiments and Ethnographic Evidence from Fifteen Small-Scale Societies, Oxford 2004, pp. 413–435.

28 L. E. Bolton, H.T. Keh, J. W. Alba, Culture and Marketplace Effects on Perceived Price Fairness: China and the USA, published in e-journal Knowledge@Whorton, http://knowledge.wharton.upenn.edu/paper.cfm?paperID=1361.

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However, it still remains to be seen what is the influence on fairness of economic inequality at a city level compared with a whole country.

This is important because in Scandinavia, known of relative equality both in cities and countries, “fairness” must have its roots in a general social welfare policies and not in urban market policies. Moreover, the results of the above research come from the research on undergraduate students from leading universities in China and the United States (both screened to omit non-native participants and Asian-Americans). This shows only that contemporary undergraduates have the same perception of fairness across the world, but does not corroborate that perception exists among others.

Consequently, it may only be summed up that urbanization and market economy spearhead a common perception of fairness across the world among young and educated people. This is a positive evidence of modernization, and confirmation of what Ezra Park said about the “urban mind” that expresses the deepest attempts of changing the world according to our desires. On a general plane, and hopefully, the more common urbanization and market economy are, the more uniform the sense of fairness is. But this shows a long way ahead. By 2050 some 70% of people may be living in the cities. If a demographic forecast alone matters in a prognosis of more “fairness” globally, then in conjunction with the concomitant interurban market economy developments this concept may cumulatively embrace more people than now.

7. effectiVeness of intercultural communication in english Referring to the above, “[m]any people in Europe lament this, and have some reason to do so, especially among those whose mother tongue used to be the one most used in trans-national EU communication (French), among those whose mother tongue is the most widespread in the EU (German) and among those whose mother tongue is the most widely spread, as a native tongue, among all Western languages (Spanish). But the growing dominance of English is irrepressible, not as the achievement of a British or American plot, but… as the unplanned outcome of the powerful interaction of probability-sensitive learning and maximin use”29.

29 P. Van Parijs, Cultural…, p. 393. By “probability-sensitive learning” the author understands, how well and how fast one improves one’s competence in a language, how fully, and for how long one retains it is strongly affected by the probability with which one can expect to have to operate in that language, whether actively or passively, including the opportunities that invite interaction. By “maximin use” the author understands maximal-minimal language competence enabling to the speaker to figure out his/her inclusion into the communication with others (P. Van Parijs, Linguistic Justice for Europe and The World, Oxford 2011, pp. 12, 14).

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In this connection, and coming back to a fuller reply to the two questions on the effectiveness of communication in English (so it will not be illusive, as noted in the motto to this article), one challenging issue must be first emphasized. Namely, and contrary to Aristotle’s law of single identity (“It will be not be possible to be and not to be the same thing, except in virtue of an ambiguity”30), in the Chinese language neither “fairness” nor “justice” exist as single categories31.

If Westerners want to understand how the Chinese think about the “non-existent” (but only in terms of formal logic), then they should look for two joint ideogrammes (not for one or another) regarding “fairness”: 公平. They both emphasize the meaning of impartial, without any prejudice. 公平 describes the meaning of just and fair, equitable, because the sign 公 means common, general, public, and the sign 平 means at the same level, equal (compare with the appliance measuring the weight, but this sign must be read in conjuction with the other sign). Regarding “justice” written in Chinese as 正义, literally, the sign 正 means situated in the middle, without left and right, so it describes the meaning of impartial, without any prejudice. The sign 义 means righteousness, justice32 . Isn’t this a fitting illustration of the third motto of this essay?

The above exemplifies a bigger issue in effective English-language intercultural communication because of another reasoning and context involved in the expression of ideas (the law of double or ambiguous identity). In the UN, in addition to the intercultural communication in English (with its Aristotelian logos, pathos and kairos), and communication in other languages of like-minded Member States with their own interpretations of that Aristo-

Aristotle, quoted by H.P. Glenn, Legal Traditions of the World. Sustainable Diversity in Law, Oxford 2000, p. 325.

31 In other languages in which they appear as single categories, these terms nevertheless generate considerable translation problems. For their exemplary discussion in: Poland, see, e.g.: M. Płachta, Rzetelny process karny w Unii Europejskiej (Fair criminal process in the European Union), in: Rzetelny proces karny. Księga jubileuszowa profesor Zofii Świdy, ed. J. Skorupka, Warszawa 2009), pp. 29–31; Germany: R. Hamm, Die Entdeckung des “ fair trial” im deutschen Strafprozess – ein Fortschrit mit ambivalenten Ursachen (The discovery of “ fair trial” in German criminal procedure – a progress with ambivalent causes), in: Straf- und Straf verfahrensrecht, Recht und Verkehr, Recht und Medizin, Festschrift für Hannskarl Salger, ed. A. Eser [et al.], Köln 1995, p. 273.

32 The author thanks Ms. Yingjun Zhang, Law School, South-Central University for Nationalities (Wuhan, The Peoples’ Republic of China) for her assistance.

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telian logic33, there are also many States with languages pronouncing still other than Aristotelian “ways of thinking” because they originate from other legal cultures. Chinese is merely a case in point, but the list of languages is much longer34. All these ways meet in the UN – a place of a multivalent or ambiguous logic, a place of legal pluralism and multiculturalism whereby Aristotelian logic is merely a part of entire competence in intercultural communication. One now can finally appreciate the misunderstandings in “reading” what is in the UN, otherwise criticized by single-minded for its “stock of empty words” or “obsession with words”35.

The issue is even more challenging than explained above. Cognitive psychologist Richard E. Nisbett who researched the concept of fairness in South-East Asian (Chinese in particular), argues that the functional equivalent of the Western “fairness” is “harmony”. And what is matching Western “justice” is “conflict resolution”36. This seems to be in line with the UN experience involving the afore mentioned globalization of the “urban security” concept for countering haphazard growth of the cities experiencing excessive immigration, inequality and with lagging infrastructure. In China this concept has gotten the equivalent name of “harmonious cities”, eventually embraced by UN-Habitat 37. This shows how certain Eastern concepts are blended in the UN in the process of its pluralistic logic.

Nisbett also informs38 that there is some evidence that socialization of children in the East is moving toward Western pattern. In a study of the mothers of children in a particular elementary school in Beijing for more than a decade beginning in the mid-eighties, those mothers were asked what it was that they wanted for their children. When the study began, the mother’s concerns were for their children’s relational skills. Particularly, Best expressed through: “Had Aristotle been a Mexican, his system of logic would have assumed a wholly different form” (A.H. Sayce, Introduction to the Science of Language, London 1900, vol. 2, p. 329). A contemporary language philosopher would probably generalize this statement by saying that thinking is flooded by language, meaning whatever is the way of thinking, it is culturally conditioned (see, e.g., J-P. Reding, Comparative Essays in Early Greek and Chinese Rational Thinking, London 2004, p. 74).

34 See, e.g., H. Nakamura, The Ways of Thinking of Eastern Peoples, compiled by Japanese National Commission for UNESCO, Westport 1960.

35 Quoted by M. Bertrand, The United Nations. Past, Present and the Future, Alphen aan den Rijn 1996, pp. 67, 78.

36 R.E. Nisbett, The Geography of Thought. How Asians and Westerners Think Differently…and Why, Free Press 2004, pp. 5, 194.

37 See: UN-Habitat, P. Oberlander, Harmonious Cities: Back to the Future; D. Biau, The rise of Chinese and Indian cities, both in: Urban World, No 1, November 2008, pp. 9–19.

38 R.E. Nisbett, The Geography…, p. 221.

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what is “just” or “fair” in the world? english as an intercultural…

their ability to fit in harmoniously with others. Ten years later, the mothers were interested mostly in the same things that Western mothers are: Does my child have the skills and the independence to get ahead in the world? Aren’t these Western values which one way or another penetrated the urban minds of Easterners through English-language communication?

Finally, Nisbett cautions that this blending process is but one that may dominate the development in the future. “The world is not necessarily going to be safe for democracy or free markets”39. However, if and when blending continues this way, then the convergence may involve further blending social systems and values, for also ”[t]here are certainly indications that the West finds attractions in the East”40.

8. conclusion As regards the intercultural communication for the implementation of the UN crime prevention and criminal justice standards and norms, it follows, that: 1) Knowing the nominal equivalents is only a part of translating what “security”, “fairness” or “justice” mean in another culture, for it is not only the letter but also the spirit of the concept that matters; 2) The knowledge of foreign-language nominal and functional (logical) concept equivalents is only a part of a broader intercultural context in which technical assistance provider operates, where the knowledge of the local context is essential. That is the message from the third example from Thailand. Without that knowledge the illusion of successful communication remains. That is why, if “fairness” exists beyond the Western culture, then in the urban minds of people from developing countries, while in other situations there it is merely and nominally a Western desideratum through the UN standards and norms; 3) Bringing “fairness” and “justice” into the grass roots in developing countries is an art of technical assistance in its own way and of intercultural communication; 4) English is at the core of that communication.

As regards a UN “common language of justice” and its technical assistance, it follows that: 1) “Justice” and “fairness” as UN concepts are negotiable in the process of technical assistance and intercultural communication, as a part of UN crime prevention and criminal justice standards and norms; 39 40

Ibidem, p. 222.

Ibidem, p.225.

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2) From the UN progressive social justice perspective, they nominally bridge and narrow various socio-economic and cultural differences between developed and developing countries, including interpretations what is or should be “just” and “fair” for all (or – for that matter – what other standards and norms call for); 3) Implementing UN standards and norms carrying such nominal values requires in practice not only the knowledge of their functional equivalents in other cultures, but also of a local cultural context; 4) Since urban way of life spearheads common values, in negotiating a common crime prevention or criminal justice solution it may be useful to learn wherefrom the other party comes from.

summary What Is “Just” or “Fair” in The World?

English as an Intercultural Contribution to a United Nations “Common Language of Justice” This essay argues that for the implementation of the United Nations crime prevention and criminal justice standards and norms of some of their legal concepts (such as “justice” or “fairness”) can successfully be locally applied by contextualizing interculturally their original English and Western sense. On the basis of lexical and practical examples, against the background of global urban developments, and the UN response to them by the operationalization of its “common language of justice”, the author argues that its advances are visible in the urban crime prevention technical assistance. Through that avenue the UN and other providers of technical assistance may spearhead more global appreciation for a common sense of justice and fairness.

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