THE FACES OF INJUSTICE

YALE UNIVERSITY PRESS

Contents

PREFACE........................................viiINTRODUCTION...................................11 GIVING INJUSTICE ITS DUE.....................152 MISFORTUNE AND INJUSTICE.....................53 THE SENSE OF INJUSTICE.......................83NOTES..........................................127INDEX..........................................139

Chapter One

JUSTICE AND INJUSTICE

It will always be easier to see misfortune rather than injustice in the afflictions of other people. Only the victims occasionally do not share the inclination to do so. If, however, we remember that we are all potential victims, we might also decide to reconsider the matter and take a closer and more searching look at injustice-not only at justice-even though this is an unusual enterprise. After all, every courthouse boasts a statue of justice in all her dignity. Justice has been represented in an endless number of pictures. Every volume of moral philosophy contains at least one chapter about justice, and many books are devoted entirely to it. But where is injustice? To be sure, sermons, the drama, and fiction deal with little else, but art and philosophy seem to shun injustice. They take it for granted that injustice is simply the absence of justice, and that once we know what is just, we will know all we need to know That belief may not, however, be true. One misses a great deal by looking only at justice. The sense of injustice, the difficulties of identifying the victims of injustice, and the many ways in which we all learn to live with each other's injustices tend to be ignored, as is the relation of private injustice to the public order.

Why should we not think of those experiences that we call unjust directly, as independent phenomena in their own right? Common sense and history surely tell us that these are common experiences and have an immediate claim on our attention. Indeed, in all likelihood most of us have said, "this is unfair" or "this is unjust" more often than "this is just." Is there nothing much more to be said about the sense of injustice that we know so well when we feel it? Why then do most philosophers refuse to think about injustice as deeply or as subtly as they do about justice? I do not know why a curious division of labor prevails, why philosophy ignores iniquity, while history and fiction deal with little else, but it does leave a gap in our thinking.

Fortunately, political theory, which lives in the territory between history and ethics, seems to me to be ideally suited to do something about it. Injustice is not a politically insignificant notion, after all, and the apparently infinite variety and frequency of acts of injustice invite a style of thought that is less abstract than formal ethics but more analytical than history. At the very least, one might begin to shorten the distance between theory and practice when one looks at our many injustices, rather than only at accounts of what we ought to be and do.

My investigations are not meant to challenge in any way the worth of the various theories of justice, nor their search for its ultimate philosophical foundations. I simply want to consider injustice differently, more directly and in greater depth and detail, and also to illuminate a common condition, victimhood, and especially the sense of injustice that it inspires. Such a project may look less eccentric if we recall that European philosophy features many unconventional intuitions about justice and injustice and that these have often moved the political imagination to its greatest achievements. There are skeptical giants upon whose shoulders I can, with some presumption, try to stand.

What is really involved in the experience of injustice? Of course, the exact meaning of the word injustice is "not just" and of injury, "not lawful." But is that all that can be said about them? Why should we not think about injustice more amply than simply to note the absence of righteousness? The answer to this question is far from obvious, because the great tradition of ethics would seem to reject this proposal. For there is a normal way of thinking about justice, which Aristotle did not invent but certainly codified and forever imprinted upon all our minds. This normal model of justice does not ignore injustice but it does tend to reduce it to a prelude to or a rejection and breakdown of justice, as if injustice were a surprising abnormality.

The conventional pictorial representation of injustice thus faithfully shows a devil breaking the scales of justice, tearing the blindfold from her eyes, and beating her up. Injustice simply destroys justice. Moreover, although almost all versions of the normal model begin with a brief sketch of injustice, it is clear that it is significant only as the sort of conduct that the rules of justice are designed to control or eliminate. Injustice is mentioned to tell us what must and can be avoided, and once this preliminary task has been quickly accomplished, one can turn with relief to the real business of ethics: justice. I propose to question this program because it does not treat injustice with the intellectual respect it deserves.

At its barest, the normal model argues that any political society is governed by rules. The most primary of these set out the status and entitlements of the members of the polity. This is distributive justice, and the rules that it proposes are just if they correspond to the most basic ethical beliefs of the society. In a warrior society, for example, the brave must be rewarded, while in an oligarchy the rich ought to get richer, especially in honors and offices. More abstractly, the fundamental ethos of a polity can be and has been presented as a covenant or as the ensemble of its traditions, ideology, and civil religion. It may be treated as the prompting of nature, reason, and common sense. But in all cases distributive justice depends on something apparently elemental and solid for its authority. Even in a complex modern society in which there may be a multiplicity of belief systems side by side, the normal model reaches down to find some solid ground on which distributive justice can ultimately rest.

Distributive justice is, however, an unfortunate term, partly because it had a very different meaning in the Middle Ages and because it is never clear just what is to be distributed. I shall therefore call it primary justice, which is more neutral and merely indicates its place in the normal scheme. In addition to the primary rules settling what is due to whom, there must be effective, specific laws and institutions designed to maintain these rules in the course of private exchanges and to punish those who violate them. And no legal system can be just unless it is managed by officials who are fair, impartial, and committed to the task of maintaining the legal order that gives the society its whole character. When these norms are not followed, there is injustice. Governments that violate them or fail to enforce them are tyrannies, and their subjects may be encouraged to disobey such rulers. That is all that needs to be said: where there is no justice to quell it, injustice prevails.

I do not wish to suggest that there is something absurd about the normal model's construction of justice. It has, after all, been accepted by Aristotelians and...