Justice is as justice does

Scott Greenfield is at it again.  Bringing up one of our big disagreements.  He doesn’t post my comments on his blog, so I won’t bother over there.

What is “justice”?  This was the question of one of the seminal works of western civilization, Plato’s Republic.  The whole dialogue dealt with it.  Various answers were considered and discarded.  The one that was settled upon was:  Justice is giving every man his due.

Not a lot of content there, admittedly.  One could argue that it’s really just a tautology, since you would have to go on from there and ask:  what is due?  And you would probably wind up back where you began.

And yet, and yet…  There were four cardinal virtues in western tradition:  Prudence, Temperance, Fortitude and Justice.  None of them is easy to define, yet they formed the basis for ideas about virtuous behavior for centuries.  They still do.

Scott says, basically, justice is in the eye of the beholder.  It means one thing to you, a different thing to another person, a third thing to another, and so on, ad infinitum.

In other words, objectively speaking, there’s no such thing.

It’s weird.  Scott says over and over, explicitly, that this is what he believes.  And then he says over and over, implicitly, that he believes no such thing.  He calls his blog “Simple Justice”.  He chronicles bad behavior by judges and others.  He decries unjust behavior by cops, prosecutors and so on, and then disclaims any intention to do that.

He’s very smart and very productive and very well intended and very much a good man and very, very much a part of the problem, although he doesn’t mean to be.

The fact that something is difficult of definition or application does not mean it does not exist.  Love cannot be easily defined, and often means different concrete things to different people in different contexts, but Scott loves his son and writes about him sometimes.  He’d be offended – and should be – if I suggested that it was bullshit to say he “loved” his son when he can’t define what love is.

Does Scott dispute that there are “wrongful convictions”?  No.  But how on earth would you decide that a conviction was wrongful?

Scott’s stated positions on this subject (as opposed to his real opinions, which are easy enough to see) are just warmed over relativism, a largely early 20th century intellectual fad, though it continued to dominate law schools and academia generally and New York City and Washington DC long after it was really, really worn out.  It’s passe.  Vapid.  Vacuous.  Someone should tell Scott.

I guess I just did.



Filed under wrongful convictions

5 responses to “Justice is as justice does

  1. Rob

    SHG doesn’t want change. Well maybe he wants superficial change. You know the kind of change I speak of. The foundation of the house is corrupt. There’s a huge hole in the roof. But let’s just replace the windows. That’s the change SHG wants.

    But SHG is not alone in his desire for change that let’s him 1) sleep easier at night and 2) maintain his comfortable lifestyle. A yearning for change of that ilk is systematic to people who have never really suffered or been exploited. SHG has too much to lose and isn’t prepared for the sacrifices that real change entail. My Con Law professor–a man who clerked for a justice of the SCOTUS–was fond of saying that lawyers were charged with the responsibility of protecting the Constitution. Protecting the Constitution, as any service person can tell you, means a willingness to die. Is SHG willing to die for change? The question requires no answer.

    The problem at the heart of SHG’s post is this sentence: “Each of us sees Justice through our own eyes.” As you rightly pointed out, the sentence is disgustingly relativistic. But I see in it a second problem. SHG is content to give equal weight and credibility to each person’s idea of Justice. Aren’t all men, after all, created equally? Isn’t that right? Why then should we not fail to award equal significance to each person’s opinion? When the notion is spelled out explicitly, the absurdness is evident. Equal before the law–absolutely. But equal in ability, prudence, temperance, and fortitude? I think not.

    The world is constantly ordering and creating hierarchy. Assigning equal weight to every person’s changing whims is contemptible. Amazingly, a lawyer, a person of the elite, has his judgment so clouded by the ideology of the times–respect the opinions of the happily ignorant and mean masses–that he would let them dictate what is and what is not Justice simply because they have a mouth and can speak.


    • People are complicated. They’re right about some things, wrong about others. I wouldn’t call SHG or any of his opinions “contemptible”. I don’t know that he has or hasn’t suffered for his beliefs or efforts; often people who have been around the block a few times have, though. I don’t know if he’s willing to die for change. Maybe he is in a defined circumstance. The same could be said for most of us, I think. It’s not the kind of thing one should be eager to do, though. Life is precious, your own and others’.

      I do think SHG has a blind spot regarding the degree to which his dogmatic indifferentism affects his conduct and the world around him, and the degree to which it marks him as a product of his time, and of his intellectual upbringing. It’s limiting in ways he can’t see.

      I don’t even know if he’s “comfortable”, or if things bother him and keep him awake some nights. It’s probably a mix.

      I’ll say this, though: there’s almost no judge in the country who wouldn’t be greatly improved upon if SHG replaced him.


      • Rob

        I disagree. I think most people are simple. Most people wish to appear complicated because it gives their lives an artificial importance and creates excitement in an otherwise dull existence. You must be familiar with manufactured chaos? In truth, 99 percent of us are driven by the same basic emotions–fear, the need for love, the desire to be accepted.

        And while you wouldn’t call his opinions contemptible, you would call them vapid and vacuous. Those aren’t flattering adjectives.

        The strikes you call for penetrate deeply into the spirit and reality of this country. Striking would infringe upon people with great power and influence. Carrying out what you demand is risky and full of peril. People fear the consequences, partially because the consequences are undefined. I don’t know SHG’s or any other attorneys financial or life situation. What I do know, however, is people who take great risks generally feel they have little to lose. Can the attorney’s you call on to strike say the same?


  2. Rob: You make good observations. You’re hard minded, and I mean that as a compliment. The world could use a little more hard mindedness.

    Vacuous and vapid are intellectual criticisms, not moral ones.

    I agree that great risk taking makes more sense when the downside is limited due to already having been realized to some extent, although there are exceptions. In any case, where I come from, criminal defense lawyers are in a professional ghetto. They have little to lose and a lot to gain by having some method at their disposal to even the odds, even if only by a little. More importantly their clients, present and future, would be the primary beneficiaries of their enhanced position.

    The lawyer who sleeps through parts of a death penalty trial (though not, of course, the important parts!) is a portrait of despair. That such a thing can occur at all is a canary in the criminal justice coal mine. What is to be done, though?

    At one level, you are right about people’s simplicity, but that’s not all there is to it. Everyone has a better nature and a worse one. Everyone can revert to base impulses and motivations, and everyone can rise above them. The world gets better when the latter is more common than the former.


    • Rob

      Your last paragraph is well said. And just for our own little record, I would love to see a lawyer strike. To remain simultaneously hard minded and open minded–that, I think, is the trick. I suppose it means something like feeling deeply about something but realizing the limitations of your knowledge and experience.


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