Injustice Research Paper

The best recent treatment of the subject of injustice and its complex relations to justice and law is found in Judith Shklar’s The Faces of Injustice (1990). Shklar (1990, p. 19) tries to rehabilitate injustice as a subject of study, arguing that it ‘should not be treated intellectually as a hasty preliminary to the analysis of justice.’ According to Shklar (1990, p. 19; also Cahn 1949, Folger 1984), ‘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 known states. Most injustices occur continuously within the framework of an established polity with an operative system of law, in normal times.’

Shklar recognizes that injustice exists at one end of a continuum of human experience and is often confused with other undesirable conditions. To avoid such confusion, the study of injustice must be differentiated from what she calls misfortune. ‘When is a disaster a misfortune and when is it an injustice?,’ Shklar asks. For her the answer is to be found in the presence or absence of a responsible human agent. ‘If the dreadful event is caused by the external forces of nature, it is a misfortune and we must resign ourselves to our suffering. Should, however, some ill-intentioned agent, human or supernatural, have brought it about, then it is an injustice and we may express indignation and outrage’ (Shklar 1990, p. 1).

This analysis treats injustice as a matter of malevolent human action, rather than as a matter of structure or of institutional design. It embodies what Gordon (1996, p. 36) calls the perspective of ‘narrow agency,’ in which injustice is thought of as a wrong ‘done by specific perpetrators to specific victims.’ But Gordon suggests that the danger of this perspective is that it will lead us to ignore other kinds of injustices. He reminds us that injustices can be done by collective perpetrators to collective victims, such as the Nazi atrocities against the Jews. This kind of injustice involves what he calls ‘broad agency.’ In addition, injustice can be attributed to bad structures in addition to bad agents. An interest in this kind of injustice ‘takes the form of explanations rather than a search for villains and attribution of blame.’

1. Responses To Injustice

Whether defined in terms of narrow agency, broad agency, or structure, some believe that in the United States people are too ready and eager to use the language of injustice and to turn to law to redress conditions which in the past would have been regarded as the uncontrollable workings of fate. Typical is Lieberman’s (1981, p. xi) contention that ours ‘is a law drenched age … Though litigation has not routed out all other forms of fight, it is gaining public favor as the legitimate and most effective means of seeking and winning one’s just deserts. So widespread is the impulse to sue that litigation has become the nation’s secular religion.’ In this view, our legal culture is today governed by two principles (Friedman 1985, p. 43). ‘The first … is the citizen’s expectation of fair treatment, everywhere and in every circumstance … . The second … is the general expectation that somebody will pay for any and all calamities that happen to a person … .’ Together these two principles create a culture of ‘total justice’ (Friedman 1985) and what some believe to be a ‘litigious society’ (Lieberman 1981, Huber 1988).

In an article I co-authored in 1980, my co-authors and I argued that responses to injurious events are more complicated than arguments about ‘total justice’ or the ‘litigious society’ admit. These responses, we noted, could be understood as occurring in three stages (Felstiner et al. 1980–81). The first, defining a particular experience as injurious, we called ‘naming.’ The next step in the emergence of a claim of injustice is the transformation of a perceived injurious experience into a grievance. This occurs when a person attributes an injury to the fault of another individual or social entity’ (Felstiner et al. 1980–81, p. 635). It involves ‘blaming.’ The third step occurs ‘when some- one with a grievance voices it to the person or entity believed to be responsible and asks for some remedy’ (Felstiner et al. 1980–81, p. 635). This step we called ‘claiming.’

It was our contention that ‘only a small fraction of injurious experiences ever mature into disputes. Furthermore, we know that most of the attrition occurs in the early stages: experiences are not perceived as injurious; perceptions do not ripen into grievances; grievances are voiced to intimates but not to the person deemed responsible’ (Felstiner et al. 1980–81, p. 636). Paying attention to the process through which responses to injustice are formulated and to the high rate of attrition in, or resistance to, the making of claims was, we contended, a way of putting the burgeoning argument about the litigation explosion in context. We argued that the processes through which claims emerge, or through which people decide to ‘lump it,’ are ‘subjective, unstable, reactive, complicated, and incomplete’ (Felstiner et al. 1980–81, p. 637). Most of what occurs in this domain is cultural, not legal, occurring as it does in the everyday lives of ordinary citizens and in their struggles to make sense of who they are and who they want to be in a world of risk, danger, and injury (Sarat 2000).

Since then, some scholars have studied the way in which people actually react to the injurious events of their lives (Merry 1990, Yngvesson 1993, Greenhouse 1986, Ewick and Silbey 1998). That scholarship characterizes litigation as a process of contesting meanings and adjudication as the choice and imposition of one structure of meaning over another (Merry 1990). Contests over meaning in courts or communities thus become occasions for observing the play of power. Meanings which seem natural, or taken for granted, are described as hegemonic, but because the construction of the meaning of injurious events is, in fact, typically contested, scholars show the many ways in which different people respond to injustice. They have found that the tendency to label injurious events in the language of injustice is contingent and complex, varying from one community to the next, from one kind of injury to another.

In this process, law plays a key role. As Merry sees it, the relationship between injustice and law is not one in which law passively responds to expectations for ‘total justice.’ Law works, she says (Merry 1990, pp. 8–9), ‘not just by the imposition of rules and punishments but also by the capacity to construct authoritative images of social relationships and actions, images that are symbolically powerful. Law provides a set of categories and frameworks through which the world is interpreted. Legal words and practices are cultural constructs which carry powerful meanings not just to those trained in law … but to the ordinary person as well.’ Merry’s research shows that responses to injustice involve ‘a complex repertoire of meanings and categories understood differently by people depending on their experience with and knowledge of the law’ (Merry 1990, p. 5). This work connects the study of injustice to the world of law and is continuous with a long history of scholarship about the connections between law and justice and about the ways law is implicated in injustice.

2. Injustice And Law

Commentators from Plato to Derrida have called law to account in the name of justice, scolding and chiding it for the injustices which it does, promotes, or tolerates. They also recognize that all too often law, in this culture and elsewhere, is a tool of injustice (see, for example, Cover 1975, Irons 1983). For every step taken toward realizing the good, an equal, if not greater, number have been taken in the name of evil. These commentators have asked that law provide a language for responding to injustice and demanded that it promote, insofar as possible, the attainment of a just society.

They have done so, however, in relentlessly abstract and general language, as if the demands of justice and the problem of injustice could only be apprehended accurately outside of history and context, and as if only philosophers were fit to engage in conversation about these subjects. The justice which is spoken about is, as a result, elusive, if not illusory, and disconnected from the embodied practices of law of the kind that Merry emphasizes. As one writer noted, ‘there is no such thing as justice ‘‘in general,’’ one can meaningfully discuss only fairly concrete injustices and procedures for their mitigation with existing social machinery or possible ways of improving the overall social organization’ (Knight 1963, p. 1).

The turn to injustice is generally associated with an interest in context and particularity, in which attention is given to individuals and institutions and their contingent histories. In one sense, then, when scholars talk about injustice and try to connect it to law they are often reacting against the vexing difficulty that attends to the effort to examine the connection of law and justice.

In earlier days, however, speaking about law and justice was not so vexing or difficult. Justice ( jus, meaning ‘law’) was a legal term, pure and simple. At the outset, then, justice was defined and constituted by laws that were ‘given’ and held to be unchanging and unchangeable. This ineluctable link between justice and law had the virtue of making the boundaries of justice more or less clear, but it had the considerable vice of labeling even heinous, iniquitous laws just. Attention to the problem of injustice could do no critical/reconstructive work in legal scholarship because it was impossible to think of justice as external to law.

Hobbes (1958) to the contrary notwithstanding, most natural law thinkers have resisted this result by insisting that unjust laws are not law (see, for example, Acquinas 1988, George 1992, Finnis 1890, Hittinger 1987). Doing so meant the end of any easy identification of positive or human law with ‘real’ or binding law. The alternative, embraced by perhaps a majority of those who do legal philosophy (Hart 1961; for an important contrast, see Fuller 1964), is to cut justice and law free from one another, to insist that justice is more than mere conformity to law and to acknowledge that even unjust laws might nonetheless be law. This has freed students of injustice to direct their attention to the practices of law itself, scrutinizing them for their contributions to injustice in society.

More recently, the distance between law and justice, and the potential for injustice in the name of the law, have been recognized in postmodern theorizing about ethics (Cornell 1988, 1992). Thus, as Douzinas and Warrington (1994, p. 23) (see also Keenan 1990) argue: ‘Justice has the characteristic of a promissory statement. A promise states now something to be performed in the future. Being just always lies in the future, it is a promise made to the future, a pledge to look into the event and the uniqueness of each situation … . This promise, like all promises, does not have a present time, a time when you can say ‘‘there it is, justice is this or that.’’ Suspended between the law and the good … , justice is always still to come or always already performed.’

Severance of the definitional tie between justice and law has left both notions free (if also bound) to acquire new identities (Balkin 1994). It has opened the way for an examination of unjust actions or conditions and for an inquiry into the ways law is implicated in them. However, this definitional separation has by no means put an end to the commonplace conviction that the principal home of justice is law and the special concern of law, perhaps its principal business, is justice. As Clarence Morris (1963, p. 170) notes, ‘Though there can be law without justice, justice is realized only through good law.’ In fact, law and legal theory continue to be shaped by concerns about justice and injustice, just as understandings of these notions are shaped by an awareness of law and the concerns of legal theory (Lucas 1980).

3. From Law To Politics In The Study Of Injustice

By what might fairly be regarded as an accident of intellectual history, concerns about injustice as a motive for studying and reforming law have been somewhat muted in some contemporary discourse which seeks to expand interest in injustice beyond the sphere of law. They have been swamped by a preoccupation with distributive justice, a subject whose contemporary pre-eminence can unquestionably be attributed to John Rawls’ A Theory of Justice (1971). ‘Justice,’ Rawls (1971, p. 3) contends, ‘is the first virtue of social institutions, as truth is of systems of thought.’ But the justice he has in mind is almost exclusively distributive justice, not justice more broadly construed; injustice of a distributive type is not peculiarly the concern of law at all.

Similarly, the philosopher Agnes Heller (1987, p. 54) introduces the notion of a broad, though incomplete, ‘ethico-political concept of justice.’ In her view, justice and injustice are not simply about principles of distribution; they concern the perspectives, principles and procedures for evaluating institutional norms and rules. Developing themes in Habermas’s (1987) communicative ethics, Heller (1987, p. 54) proposes that justice is ‘primarily the virtue of citizenship, of persons deliberating about problems and issues that confront them collectively in their institutions and actions, under conditions without domination or oppression, with reciprocity and mutual tolerance of difference’ (Young 1990, p. 33). Domination, oppression, and intolerance are thus preconditions for injustice.

Iris Young (1990, pp. 34, 37) expands on even this notion, concluding that ‘the concept of justice coincides with the concept of the political,’ and while it is ‘not identical with the concrete realization of these values in individual lives,’ it is attentive principally to ‘the degree to which a society contains and supports institutional conditions necessary for the realization’ of the values of equal worth as these are promoted or confined in a society’s basic institutional arrangements. The study of injustice then moves from law to politics. On this account the subject is as inclusive as the political order itself.

4. On The Continuing Significance Of Procedure

Despite these broad and encompassing views of justice and injustice, the fact remains that injustice is generally thought to be involved in matters of procedure, punishment, and recompense (Aristotle 1985, Lucas 1980). Thus, while law in its legislative moments might share with other social institutions certain distributional objectives, it is generally thought that law has a separate and distinctive commitment to doing justice, located most conspicuously, though not exclusively, in matters of form and process. This is, of course, symbolized in the universal icon of justice (and invariably associated with law): the statue of Justicia, the blindfolded bearer of sword and balance.

Despite certain ambiguities, Justicia presumably embodies law’s central link to justice, impartiality (Curtis and Resnik 1987). The instrument of Justicia is a balance, not a scale, so it is only a comparative rather than an absolute measurement that is involved. She is blindfolded to prevent her decision from being inappropriately influenced or determined by forces of fear, bias, or favoritism. Moreover, she is blindfolded—not blind—suggesting a self-willed refusal of vision. If we are to avoid injustice, partial justice, or biased justice, what is required is a denial of sight though not of seeing, a regulation of information though not of knowing, a restriction on what is permissibly attended to though not a deficit of attention (Black 1989).

According to Curtis and Resnik (1987, p. 1727), ‘procedure is the blindfold of Justice.’ The proposition that procedure is itself an aspect of justice, and that procedural irregularities are in themselves instances of injustice, takes us some distance toward the further result that law and justice are ineluctably linked. Thus, to the extent that one supposes that the Rule of Law and the principle of legality are constituted largely by a commitment to regularized, self-limiting procedures, it is but a short step to the conclusion that procedural justice is inextricably tied to law itself.

Along some such path, it seems possible to argue further that procedures themselves must meet additional normative requirements, sounding in fairness and desert, and other dimensions of justice. As Hart (1961, Chap. VIII) has observed, a rule that is regularly, uniformly applied to prohibit certain minorities from using the town park might, despite its unfailing enforcement, be viciously unjust. Legal justice, then, involves more than general observance of the rules that regulate exercises of legal authority, the rules themselves must be fair, eschewing wholly arbitrary distinctions between and among the persons to whom they apply or on whom they finally have effect. The rules must provide suitable forms of what, in the United States, are known as requirements of due process and equal protection.

Acknowledging the relationship of procedure and justice has spawned a large and important empirical literature which explores what leads people to believe that law is just or unjust (Lind and Tyler 1988, Tyler 1989). This literature suggests that procedure is more important than substance, that the way one is treated is more important than the results one gets in determining whether people believe that they have been treated justly or unjustly in the legal system. As Lind (1998, p. 184) explains. ‘If authorities seem to be making decisions in fair ways, people assume that they can obey orders and follow rules without worrying too much about exploitation. If, on the other hand, authorities seem to be reacting unfairly, exploitation becomes a real possibility and obedience tends to be viewed with more suspicion … . Outcome-oriented theories of justice judgements err because they fail to recognize that people are generally quite ready to accept outcomes that are less than they had hoped for.’

5. Can Law Overcome Injustice?

Returning to the questions with which we started, we have seen that injustice is not simply an absence of justice, that it is a fact and an experience different from, though related to, misfortune, and that it may involve the relations of one person to another, of groups of people, and of the attributes of legal, political, or social structure. Though some would focus the attention of persons interested in understanding injustice fairly broadly, law seems to be at the center of any proper understanding of injustice.

Yet having envisaged ways of connecting the study of injustice and of law, it must be granted that not everyone regards the imagined association as an unalloyed good. Hayek (1982), among others, is persuaded that social justice is a mirage, a misguided affection the pursuit of which not only threatens liberty but, eventually, law itself. A somewhat more moderate concern is that the demands of distributive justice and the Rule of Law are inevitably at odds with one another, so that the effort to cure distributive injustices comes at a high price to law itself (Unger 1977, Barnett 1988). A third apprehension is that the meaning of justice is so ambiguous, expansive, and elusive that law invariably will be seen as falling short, as failing to meet justice’s demands, as always, then, implicated in injustice. As Balkin (1994, p. 16) argues, laws apportion responsibility, create rights and duties, and provide rules for conduct and social ordering. Law is always, to some extent and to some degree, unjust. At the same time, our notion of justice can only be articulated and enforced through human laws and conventions. We may have a notion of justice that always escapes law and convention, but the only tools we have to express and enforce our idea are human laws and human conventions. Our conception of the just relies for its articulation and enforcement on the imperfect laws, conventions, and cultural norms from which it must always be distinguished.

Some worry that law’s legitimate authority, such as it is, will be dangerously (and unjustly) eroded (Tyler 1990). Alternatively, but with consequences no less grave, the impossibility of satisfying justice’s demands may eventually be seen as the fault of justice, not of law.

Still other qualms dampen enthusiasm about the possibility of connecting law to the study of justice and injustice. Some believe that the embrace of legal justice is, at best, a rhetorically appealing device for quieting alarm about the excesses and inequities social and economic arrangements inevitably arouse (Hay 1975). So conceived, legal justice is largely a symbolic response to the incorrigible defects and injustices of liberal capitalist societies, not a positive virtue which these arrangements can promote or make possible (Marx 1978).

The fear that legal justice can be put to work in the name of legitimating social injustice, for example by ‘justifying’ outcomes that seem patently, outrageously disproportionate has been expressed in a different voice, and on different grounds, by Shklar (1990). She argues that the focus on justice inhibits the development of a community that both recognizes the culturally constructed quality of boundaries between the ideas of ‘injustice’ and ‘misfortune,’ and objects to passive injustice as vehemently as it abhors the active violation of rights. But Shklar’s dissatisfaction with a narrow interest in legal justice is pressed even further in her contention that contemporary theory tends almost exclusively to regard injustice as ‘simply the absence of justice’ (Shklar 1990, p. 15, Woozley 1973).

On this view, ‘once we know what is just, we know all we need to know,’ Shklar (1990, p. 15) writes. Or, as Knight (1963, p. 15) observes, ‘One misses a great deal by looking only at justice. The sense of injustice, the difficulties of identifying victims of injustice, and the many ways in which we learn to live with each other’s injustices tend to be ignored, as is the relation of private injustice to the public order.’ Scholars such as Shklar and Knight contend that we not only lack a full and coherent account of justice; even if we had one, it would not yield an equally full account of injustice, nor would it confront adequately our calloused complacency regarding vast, yet eliminable, misfortunes.

These observations call to mind a variety of uncertainties and ambivalences regarding the relationship of law and justice, but they fall far short of embracing the extreme position that justice be jettisoned from legal discourse. Rather, they remind us of the vastness of the subject of injustice, of the difficulty of constructing a single account capable of holding together its many strands, and of the space that exists to theorize anew about justice and injustice in law and legal theory.

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