How can we distinguish between injustice and misfortune? What can we learn from the victims of calamity about the sense of injustice they harbor? In this book a distinguished political theorist ponders these and other questions and formulates a new political and moral theory of injustice that encompasses not only deliberate acts of cruelty or unfairness but also indifference to such acts. Judith N. Shklar draws on the writings of Plato, Augustine, and Montaigne, three skeptics who gave the theory of injustice its main structure and intellectual force, as well as on political theory, history, social psychology, and literature from sources as diverse as Rosseau, Dickens, Hardy, and E. L. Doctorow. Shklar argues that we cannot set rigid rules to distinguish instances of misfortune from injustice, as most theories of justice would have us do, for such definitions would not take into account historical variability and differences in perception and interest between the victims and spectators. From the victim's point of view―whether it be one who suffered in an earthquake or as a result of social discrimination―the full definition of injustice must include not only the immediate cause of disaster but also our refusal to prevent and then to mitigate the damage, or what Shklar calls passive injustice. With this broader definition comes a call for greater responsibility from both citizens and public servants. When we attempt to make political decisions about what to do in specific instances of injustice, says Shklar, we must give the victim's voice its full weight. This is in keeping with the best impulses of democracy and is our only alternative to a complacency that is bound to favor the unjust.

THE FACES OF INJUSTICE

By JUDITH N. SHKLAR

YALE UNIVERSITY PRESS

Copyright © 1990 Yale University
All right reserved.
ISBN: 978-0-300-05670-9

Contents

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

Chapter One

GIVING INJUSTICE ITS DUE

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 Hobbesians, Kantians and utilitarians, liberals and conservatives, and most theologians as well. It corresponds to the common understanding of the matter, in short, and I do not propose to challenge it or to reject the legal values that it promotes. Without juridical institutions and the beliefs that support them, there can be no decent, just, or stable social relations, but only anxiety, mutual mistrust, and insecurity. The state of nature is a perfectly convincing just-so story reminding us of how dismal a nonlegal existence would be. What I do propose to question is not the principle of legality but the normal model's complacent view of injustice and its confidence in the ability of the institutions that it underwrites really to cope with iniquity. Some skeptics have always felt uneasy about these assumptions, and I share their doubts.

No serious theory of justice is simply indifferent to injustice, of course. Normal accounts do begin, as John Stuart Mill's typically does, with the thought that justice, like many other moral notions, is best defined by its opposite. He then goes on to tell us in a very few sentences what injustice involves. It means the violation of good laws, the breaking of promises, the refusal to recognize valid claims, to reward positive merit and to punish crimes, and finally, to be partial in deciding controversies. With that he leaves the subject, having, in fact, shown only that it is unjust to break the rules of normal justice. In this procedure he was by no means unique, but that does not mean that it is a wholly satisfactory one.

Injustice is the absence of justice only in an obvious and circular sense in Mill's account because injustice is presented from the outset as the sort of conduct that normal legal justice is designed to eliminate. To be sure, his real concern was to show why justice is binding upon us and why it is the first of the social virtues. It was not his purpose to draw a full map of all of the kinds of known injustice and their intractability. He was intellectually averse to contemplating the worst historical situations. It was not surprising that, like so many of his successors, he treated injustice merely as the take-off point for a wholesome and upbeat theory of justice. Injustice is not expected to go away, of course, but normal justice is taken implicitly to be adequate to the task of controlling it in practice and understanding it in theory. It is this belief that has often raised skeptical misgivings.

The skeptics do not accuse the normal model of forgetting injustice. They know that laws and conventions are meant to eliminate it. They are not, however, convinced that the normal model offers an elaborate or serious understanding of injustice as a personal and political experience or as a part of all societies known to history. Surely, injustice should not be treated intellectually as a hasty preliminary to the analysis of justice. And the real realm of injustice is not in an amoral and prelegal state of nature. It does not appear only on those rare occasions when a political order wholly collapses. It does not stand outside the gate of even the best of known states. Most injustices occur continuously within the framework of an established polity with an operative system of law, in normal times. Often it is the very people who are supposed to prevent injustice who, in their official capacity, commit the gravest acts of injustice, without much protest from the citizenry.

DOUBTS ABOUT JUSTICE IN THE EMPIRE OF INJUSTICE

These banal historical realities are the chief reason why there have always been political skeptics who have found the self-confident intellectual and moral claims of the normal model unwarranted. Only Plato rejected it entirely, to be sure. Most of the skeptics accepted the practices of judicial legality as unavoidable, but they had serious doubts about their real worth, and especially about their efficacy. They had taken the full measure of injustice and had found it to be vast.

Political skepticism is often rooted in a general cognitive skepticism, but it does not depend on any specific philosophical assumptions about knowledge in general. It is simply a doubting, unconventional view of accepted social beliefs. This kind of skeptic may well begin the journey away from the common understanding because he or she is overwhelmed by the evil of the times. Certainly Plato, Augustine, and Montaigne had every reason to look about them with despair and disgust. And in the midst of civil war and its debris, it is reasonable to ask: "Why do we do these appalling things?" and then, "What do we know about ourselves and each other?" and finally, "What can we know at all?" That is how the great skeptics came to doubt the moral relevance of the normal model of justice among other things and to reject or question it in ways that made injustice stand out more starkly than conventional political ethics permitted.

It is always the aim of skepticism to expose hidden ignorance. It is not, in fact, difficult to show that laws inspire false intellectual self-assurance that positively encourages us to be unjust. The great skeptics doubted that law-governed conduct could be effective or even possible because we simply cannot know enough about men or events to fulfill its demands. That is why Plato turned his back on the normal model, while Augustine and Montaigne reduced its relevance. All of them had an unusually enlarged sense of the various forms of injustice, and even though they did not focus on the personal sense of injustice, as more democratic theorists eventually would, they gave the theory of injustice its main structure and its intellectual force.

These skeptics did not, of course, deny that lawlessness, crime, and unfairness in exchanges and in judging were acts of wrongdoing, but they looked beyond these obvious misdeeds to rediscover injustice itself in its scope and endless detail. They saw it directly, not just as encompassing those acts that law and order are meant to eliminate, but all those occasions that make us cry out in anger and resentment: "That is not right!" I evoke their thought here chiefly to show the range of the moral and political puzzles that arise as soon as the normal model is put to a critical test. And if we are prepared to recognize these perplexities, we will be in a better position to take a new look at injustice. The great doubters should help us to raise some questions of our own, and that is why I shall begin this book with their enormous "no!"

Any effort to think about injustice in all its magnitude must begin with Plato, not because he has both the first and the last word on the matter but because he is so remote, so much the foreign mirror in which we learn to see ourselves. To read Plato is to be forced to start all over again because his is the most radical of all rejections of the normal model. There is no other intellectually comparable place to begin.

According to Plato, the normal model is an expression of deep ignorance. It is a bad joke, a circus. Far from altering unjust people, it only encourages and maintains their habits. Injustice, truly understood, is a condition of misdirected psychic energy, in which aggressive and acquisitive impulses expand, while rationality can barely assert itself. A society that reflects this character is not only incapable of educating its members, it, in fact, actively misleads them. Its art of ruling is reduced to keeping these disorderly tendencies alive by checking them, and with them a mindless society survives. For what do law courts do but invite the greedy to accuse the even more greedy of offenses arising from greed and aggression? The very existence of the normal model of justice is the most telling testimony to its own incompetence. It not only fails to fulfill its own promise to eliminate injustice, but in its inconsistency does not even try. In our ignorance we invite the unjust to pursue their claims by providing them with public facilities for expressing them.

Can anyone be said to receive or give others what is due, when no one is competent to do his or her assigned task and constantly meddles in affairs that are wholly outside the range of understanding? To Plato it was obvious that all historically known societies are simply unable to achieve their own norms or even to understand them. The reign of ignorance is thus not only inherently disorderly but also unjust in the conventional, normal sense of the word, since no one either gives or receives what is demanded by the normal social rules. If competence and occupation are never matched and there are no ruling principles according to which the inherently unlimited wants of men can be restrained and ordered, there is no justice whatever. The normal model, far from establishing justice, merely allows personal disorder to become socially systemic; it simply perpetuates injustice. Such is its effect and social function.

(Continues...)

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