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Law in Contemporary Society
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What does justice mean?-- By AndrewMcWhorter - 13 Mar 2017 What do we mean when we talk about justice? Merriam-Webster, somewhat unhelpfully, says that justice is “the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments.” Which begs another question: What exactly is just? Again, Merriam-Webster says that being just is simply “acting or being in conformity with what is morally upright or good.” We might continue and ask what exactly good means, but the end result should be obvious. We would simply be led further and further down a path of adjectives that, at some point, would begin to circle back on itself, like a snake eating its own tail. This is a fundamental problem with language.More a problem with dictionary definitions, in which circularity is not consciously avoided.It is wholly self-referential, with no fixed extrinsic meaning. In other words, when we ask what justice means, the answer can only be justice. I doubt that's true. It seems to me that both Plato's Republic and the third book of Aristotle's Politics—not to mention both John Rawls' Theory of Justice and Roberto Unger's Knowledge and Politics—manage to get farther than this.Such an answer—that justice means justice—may seem unhelpful, but it nonetheless contains some important implications. First, it presupposes an ability to actually use the word justice. If it were necessary to resort to an external source in order to use the word justice, or any word for that matter, language would be impossible. Yet it isn't. The second implication, leading out of the first, is that justice is exactly what people mean when they use the word, and nothing more. Wittgenstein developed the concept of language-games, wherein words acquire their meaning solely through use. There is, therefore, no real definition for justice and no need for one, since we can continue to use the word effectively in the language-game of law. I don't think that's what Wittgenstein means, or how we might want to apply the insight to legal theory. I've given some thought to this, and have even written a law review article about the matter, as it happens. You might find it helpful in considering how this paragraph might be revised.This leads back to my original question, but casts it in a new light. What do we mean when we talk about justice? The answer depends on our community and on which particular language-game we are playing at the moment. What justice means is subjective on a community level as well as an individual level. In fact, the community subjectivity of justice is by far the more contentious. What looks like justice to one group looks like injustice to another and vice versa. For example, many reporters in the past few months have finally decided that, in light of the most recent election, it is time to go to “the forgotten places” and make an effort to remember them. From the isolated valleys of the Appalachian Mountains, to the bayous of Louisiana, to the country roads of my own home state, Alabama, these reporters have encountered the hard fact that what looks like justice to people from New York, Los Angeles, and Washington, D.C., does not look like justice to destitute, drug-addicted white people on the fringes of society. That wasn't the conclusion I drew from the various Hillbilly Reconsideration pieces I read. I had a feeling that (a) we pretty much agreed about justice; (b) people you speak of had come to believe that nobody engaged in politics or government was going to get them any; and (c) that they were therefore prepared to accept or even commit injustice to others in order to get some for themselves. This all seemed quite normal to me, but I'm not sure what it has to do with Wittgenstein.One allegory has come up over and over again in these encounters, and it seems to me very few people are trying to take a hard, honest look at what it means. Poor white people in the United States see a line. The line leads to what has always been the object of the American Dream: a comfortable middle class existence, with a chance to go further. They have been standing in line for a long time, and the line continues to move forward, but its pace has recently slowed considerably. But these people remain hopeful that their turn will come. There are minorities, immigrants, and women standing in the line as well, some ahead and some behind. Most of the poor white people do not wish ill of these other groups waiting their turn, but neither do they wish to sacrifice their own place in the line. Suddenly they see people cutting in line. It is the minorities, immigrants, and women they have seen standing behind them. Even some of the people in those groups standing ahead of them appear to be getting choicer places in line, and the government is helping them do it. They object to this preferential treatment, but are chastised for even raising the idea of impropriety. They are called racist, xenophobic, and sexist for even daring to make the suggestion. Still the line moves more slowly. This allegory is a flawed and incomplete picture, but it nonetheless represents a fundamental disagreement about what justice means. To one group of people, the shameful history of racism, bigotry, and sexism justifies putting a thumb on the scales in order to correct for the continuing effects of inequitable social systems. I think I'm one of this group of people, but I don't believe that. I believe that the sorts of measures you speak of are necessary to prevent illegal discrimination that will otherwise occur. I think the idea that this is somehow a form of corrective adjustment, a payback, rather than an effort to prevent the commission of new wrongs, is propaganda from the other side, effective but a lie.To another, punishing and ignoring people who were never the beneficiaries of those social systems simply because they are a member of an ostensibly favored race is unfair. Also to my group of people. When anybody just trying to make a living, raise a family, live a dignified and decent life, feels ignored or punished, then some injustice is happening somewhere. The idea that we can't prevent what would otherwise be constant, illegal, immoral discrimination without ignoring or punishing is also mere propaganda, equally false and of the same kind as the claim that we can't move away from a carbon-based energy system that ruins the planet without crashing our economy and hurting the same people who already feel ignored and punished, even before they lose their health insurance so that very wealthy people can have a half-trillion dollar tax cut. In short, I disbelieve that fundamental differences in perspective are the source of the social division that is instead, so far as I can see, the result of distortion of the questions in the interest of other parties with more power to shape the social discourse. I wish you would show more reason, in the revision, to adopt your view over this one.One perspective or another will likely seem more compelling depending on which community someone is from, but at the very least we can conclude that neither has a fundamentally stronger claim that justice is on their side. The two perspectives are playing different language-games, and their respective ideas of justice are mutually unintelligible. So what is to be done? If the only reasons someone should become a lawyer are love for justice or hate for injustice, then the idea that justice has only contextual meaning is of paramount importance. A theory of social action for lawyers that encompasses this idea must reach one conclusion: that doing things in society using words must necessarily involve affecting the meaning of the words themselves. Perhaps it is possible to create new language-games. In doing so we might create new communities and, therefore, new meanings for justice that are valuable and intelligible to broader groups of people. Put another way, we can make justice mean justice for more people. At an individual level, this need to create new meanings for justice requires absolutely that we, as lawyers, have firm understandings of what we believe justice to be. If only people who love justice or hate injustice should become lawyers, then that requirement itself has a prerequisite. Only people who have decided for themselves what they will mean when they talk about justice should become lawyers. You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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