THE
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INJUSTICE
JUDITH N. SHKLARK A 26/242
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ok Longe the CowPREFACE
‘This book had its beginning in the Stores Lectures
that gaveat the Yale Law School in 198, Lam grate
ful to Dean Guido Calabres for having init! me
nd for making it sucha pleasantoccasion learned
ot From talking to the students an faculty at Yle
and appreciated their kindness and hospitality am
also much obliged w Professor Sanford Kash, who
asked me to discuss the orginal lectures with 2
‘workshop atthe Boalt Hal Law Schoo at Berkeley,
‘session from which benefited great. At various
times I have also presented sections of this bok to
{informal groups a Harvard, and [found that each
‘one of them helped me to put my ideas in order,
Geotitey Havthor, Stephen Holmes; Quentin
Skinner, and Dennis Thompson read earlier drafts
ofthis book with eal care and gave me much exee
lent and dete advice about how to improve it,
almost all of which I was happy to accept Tb say
‘hank you to thems haedly enough. Tals received
valuable comments fom Yaron Ezrah, Moshe Hal
eral, Stanley Hotfmana, George Kateb, Robert
Keohane, Steven Macedo, Patrick Rey and Michael
‘Walzer Heather Houlahan Kindly helped meto pre
pare the manuscript for publication,
‘An eater and shorter version ofthe fst chap
ter of this book appeared inthe Yale Law journal,
June 1989.INTRODUCTION
‘When is» disaster a misfortune and when i it an
Injustice? Intuitively the answer seams quite obvi-
‘us. If the dreadful event is cused by the external
forces of nature, sis a misfortune and we must
resign ourselves tour suffering, Should, however,
Some intentioned agent, human or superat
‘al, have brought it aboot, then it aa injustice
and we may express indignation and outrage. Asit
happens, in actual experience this distinction, to
which we cing so fervent, does not mean very
‘much, The reasons become clear enough when we
recall that whats treated a8 unavoidable and natu
‘al, and what is regarded as controllable and socal,
fs often a matter of technology and of ideology or
interpretation, The perceptions of victims and of
‘those who, however remotely, might be vitimiz
crs, tend tobe quite diferent. Neither the fats noe
their meaning willbe experience inthe same way
by the afficted as by mere observers or by those
who might have averted or mitigate the sueing
“These people ate to far apart 9 see things in the
same way
'Nor isthe line between the human and the nat-
ural altogether relevant, Culture, in its perasve-
ress, may act upon us in much the same way as
the natural envionment does, and it is certainlyro esier—indeed it may be harder —to contro and ate The
‘most obvious example is pigmentation, which is certainly nati
‘al, butnothing else aboutbeing dati-skinned in Ameria Black
in America social, nota natural condition. And at various
times some have regarded dark skinas.a misfortune, some aways
‘new it to bean injustice, and nota few treated i as both, With
‘hat in mind i would sce hat the line between man and
nonkhuman causes may not matter very much’ Instead, 1 shall
‘gee, the itference between misfortune and injustice quently
involves ou willingness and our capacity to ator not to at
‘chal ofthe vitins, to blame of 1 absolve, to help, mitigate
and compensate, or to just ten away. The notion that there
‘tpl and stable rule to separate the twoisa demand for + moral
Security which ike 0 many others, cannot be satinfied. That docs
ot mean that Wwe should abolish the dstinetion or become
‘esgned tal ou ills, but it does suggest that wwe shoul econ
sider tad, especially tke anew look a injustice,
cach turbguae suey natural event, but hat isnot al hat
or wilin fact be said about it alot of damage is done and
‘Tany People perish wil be considered an injustice aswell an
x sme gute diferent reasons, The religous wll blame Good
“Weare not more wid than ther
cut for punishment?” And even more
specially, "why my child?” Among the lsd
eae sty oa levout victims, a
ASHE simply sy “nature cruel but they would nt be
» because a random, atitrary word is hard to bere
‘no swift transportation for he injured. Many wil ie who might
have been saved. Where had their axes gone ta? Squandered on
an expensive space program that was of no particular benefit
them, they might say
While this isan imaginary casei bears a certain resemblance
tothe recent earthquake in Armenia, but something less extreme
js not unimaginable in any part ofthe world have only slighty
‘exaggerated the prevalence of simple active injustice here, com-
mitted by crooks and corrupt oficas. Noone would try to exon
fate them, and, indeed, politicians will hasten to heap blame
"upon them. The less culpable governmental agent, who might
swell beacuse of neglecting the vitms by simply following r=
ine, would, however stess tat ths was a natural and unawoid-
tle disaster and that given the many other demands epon their
limited resources, they had done their best, and more. To he ey
“why us?” they would say, “e's unfair” which is also the favor
ite evasion of passively unjust citizens, the people who just stand
around and do nothing cal in the bei that “it could not be
helped” The victims would not have accepted excuses of “neces
sity” and inevitability They would have sen injustice and cried
‘ut in anger and they would have been quite right to do so,
because there was.a human, political element inthe disaster. And
ina free, constitutional democracy especialy in which public
Authonties are supposed to be responsive and accountable to the
taxpayers, the outrage ofthe victims on such dramatic occasions
isrightin itself, as wells being contribution tothe public good,
ince it might improve offical conduct when the next disaster
‘occurs. From the point of view ofthe victims and those who
sympathize with them, what began as a natural disaster was in
is flleffets a public injustice. Gven their expectations of eur
rent technology and bebe n politcal equality these citizens would
and should vent their outrage upon te established authorities in
the hope of atleast making them more efficent and careful and
less amogant nove and in the fature
“To take the victims’ views seriously, does not, however, mean
that they ae always right when they perceive justice. We often4 tntdcton
Sane oun and eich ther fr no ged ren.
fe weasel we el gly es me nee pre,
‘we tne anyone who seems mor oun han une
When aces a atl ce, tay not be he a a
Ga ofthe dates our pnts nose ese eso
aur om pa acs, bt mot ws Wl Bans oo alo
say aa mire ene tte at ng
that oul appen To ct me may see one sack
eel a, ugh hardy Bee
att: hee ates wen tse bat noon espe:
uly a egal inno eters tanning cae Ser
bone whe ch highs ncn ree
‘haben id hat we demanding ee tac ene
sn wos the ver common inpube tose outer he
ene ae und. Wout me st
lose the arden ofneviaity both ced on oe
al It ay
‘may be rue that wrongdoing by private and public org
way of rationalizing our reactions to potential and actual isa
ters? do not see how we could ever do that. Surely its psycho-
logically unthinkable that we ould ever desist from casting blame
"upon these who have injured us and who have disappointed our
soci expectations. How could we cept rleless word in which
things ust happened tows? Even blaming oneself s moc oer
be than folding up infront of so absurd if. As ong os we have
8 sense of injustice, we will want not only t understand the
forces that cause us prin but also to hold thems responsible for
iti we ean identify them, How punitive we shoud be quite
another question, and it would take an additonal book to cn
ser it adequately
Tobe sure, the objects of our suspicions do constantly alte
‘Werno longer Blame witches for our personal misfortunes, 35 we
id unt a ew centuries ago. Some misfortunes ofthe past how:
‘ver, are now injustices, such as infant mortality and famines,
which ae caused mainly by puble corruption ad indifference
[Nevertheless though its undoubtedly changeable and inde
ite, the diference between misfortune and injustice will not go
‘ay, and there are good pubic reasons why we should retain
it We need it not only to make sense of our experiences but
abo to control and restrain the public sources of danger to our
safety and security. But we must recognize that the line of separa
tion between injustice and misfortune isa politcal choice, not
simple role that can be taken as a given. The question i, thus,
‘ot whether to draw a line between them at al, But wher to do
50 in order both to enhance responsibility nd to avoid random
‘etalon.
‘Accusations of injustice are often the soe resort open, not ony
the victims, bu tall ctizens who have an interest in main
laining high standards of public service and rectitude. They can
also discourage passive injustice, which isthe refusal of both
cas and of private citizen to prevent acts of wrongdoing when
they could and should da so. tis a notin as old 2s Cicero that
hullenges mos of us, who would prefer todo nothing, by emind-
‘ng us that we ma, in effect, be contributing to injustices. Not‘everything that aff vitims is jst bad ack, an alert citizens
and oficial an do much to alleviate and prevent injustice
By passive injustice Ido not mean our habitual indifference to
the misery of hers, but afar more limited and specifically civic
failure to stop private and pubic acts of injustice. The possibility
of such preventive ci acivty fy fr eterna fe soe
‘tan in feorien and ethan ones so shal eat as
{pt of he baton of cizens of consintonaldemoxraces
ly. And indeed aithogh shal dw examples fom many
cs end ines, this whe books ely abut Ameri ot
Because tthe most unjent sc by any means ut because
now test and becuse one might wel ot nes ge at
{nes county when one writes soutien Aner
ss, mareoes tha the charac oferty has aay ea,
and remains, a matter of daily discussion. As citizens, we are
stunts, when So not po nes
hen we lk the ae ay hen nese heating adn
thet, when eet pie crapion and when we ty
‘ccept asta we ead unt, ue el
be servants are een more ely wo be pase unis
being by taining ingot ouside he lesan votes
‘feos and pers sao antagonneUer supern
ome he dl cnc Tere se
3 ot de to naturlferces oro apareaay nat opto
ut to many hands in genera who need to Be tnd con
‘tan fh pose conseqencsolhrinacton Many sel
oat and doctors knew that lite Joshue DeShaney’ eter
‘tet einghin ral al sevorer “day ected
{hee incidents her flesh she did athe ove ak
{he sul that ie now perminenty brn dase. ces
‘esas any that a modern state can commit
"Nevertheless, ome could say that the child was the vicki of a
Ineducion 7
misfortune, first to have sch a father then 40 fll hough the
cracks —to use a fitingly impersonal metaphor—of the system.
‘One might goon to argue that no sate has any business to intr
ferein ay fil even this on, since the rlations within itarea
holly private mater. In truth the line separating the private
fom the public sphere iseven more uncertain than the one drawn
between misfortunes and injustices. Ti, 00 isa political cic,
depending on ideology and deep cultural habits of mind. Need
‘one eal that unt very recently twas genezall taken for granted
that a white primary was a private arrangement? Anyone who
‘thought otherwise was giving way to sudjetie personal atitudes.
Any fe citizen must insist that ain be drawn somewhere
bbenween the private and the public so that the state will be pro-
Init from entering into the many aspects of our lives where
‘wehave the right to actas we choose. The exact point ofits exc
son i, however, historically movable, and few are the liberals,
‘who would now treat domestic violence against women and hil
dren asa protected private sphere. The way to decide when an
Injustice isso evident ato require iizens and ofa to inter:
fereannot, however, be found in the dferenc between pubily
recognized injustices and merely subjective reactions. That di
tinction is, i fat, ne more secure and no les political, than thot
‘eween nature and culture or between the objective and the sub>
isctive view It isa question of who has the power to define the
meaning of actions
‘What usully passes for validated injustice san act that goes
against some known legal or ethical rule. Only a victim whose
‘complains match the rule governed prohibitions has suffered an
injustice. Wf there is no fit, iis only a matter of the vit’ sub
jective reactions, a misfortune, and not rally unjust, She may
not be Iying of mistaken about the facts, though that 10 be
Suspected, but she has misdefined her experience, Her expects
tions were groundless, Not ony does this procedure miss good.
deal about what iis like to sue justice, I also assumes 3
Stability of perspectives that is ust not there. Who exactly i 0
decide what does and what docs not constitute a valid expectson Tea of cnt ay dos wel enough forthe
sons deg cvs tlhe aes te a eons
cat there hat have oting fo do wih conocer bisa
promis
ets sume tht he vii sexpecatonsmay othe een
‘oped sal byte who eo she cae Be
{rover ipertal rer Toy may ton Deepa 7
Istindeand may edhe bc hed up as uch
sen of her oi eli tienen 90 tau
sec ups in eft under Crow a To Rove
ined ha ck Aran ies mighexpe han xy
themes n white er weld have app a
ssid expectton, an epesin ola eee
ne. Ystray ks al aay fly and a
Norissosal chang the ol rene hep sat
Iudgmens Te repr of wine fo cet the peoh
Oxy perception te ptt persona sn pus el
sep otrntpreve acral elie sn Sry ai
‘el tno. et weal pend ta the a one
‘cont os what alpen nd wth 9S
‘as amirune eran We nec oes to
us ep pyle ans, at nt Be we ct
itt ein Knowle Ne ital he ina al
se. That ny my sepes aoe ae
‘Ricco mye mache Sed
Sompocretcuopin cu dy ean a
1 eine pt na nthe
scence te nse Rammestatee oe ee
‘xchoteranstou lot tan we nace eae
faz in Fors vy fan at wes ey hot
y, UBustine, and Montaigne thought, and I shall begin this
Say mang tn dub wih ey aes
howe be mae modest nd moe poll on ane to
Simpy toshow hat none othe eal ul ne
anaidequate account of injustice because they cling tothe ground-
less tit that we can know and draw a stable an rigid distne-
tion between the unjust and he unfortunate. Moeeover this belief
inclines us to ignore passive injustice, the victim's sense of injus-
tee, and ultimately the ful, complex, and enduring character of
Injustice as a social phenomenon,
‘Consider the celebrated case of Bade Pick, The facts. a8
they appear in Dickens's Pickuik Ppes ate a5 follows. Mr. Pck-
‘wick has been renting rooms from the widow Brdell for some
time when he suddenly decides to hire a manservant. Owing
his utr inability to express himself leary and simpy, he sie
“Mrs, Bardel the impression that hei proposing mariage 0 her
‘wher he was trying ote er of his new domestic arrangements.
“Anyone eading his speech can see at once that she might isin
terpret his remarks, expedally ifthe wish was mother tothe
thought, She is “a confiding female” and though an excellent
wok, none too bright. In any event, she isso overcome by his
‘words that she faints into is arms just as his rend ener the
room. They se ahighly embarrassing scene and cough lisrety
As they would duly testify, “She cetainly was reining in his
arms." This is Vieloran England and Mrs. Bardell hasbeen com
promised and so has Pickwick
Although there are three reliable witnesses who have sen Pick
wick embracing Mes. Bardel, wear the only people who really
now what happened, Dickens and his readers, who tke God
have created all these people, are omniscient, We know ever
thing and we are so remote from the events that we canbe totally
lmapatal, This is never posible sn eal fe as the eat skeptics
hve reminded us ll along, As ordinary people we areal nthe
Same position as Pickwick's and Mes. Bardel’ fends, who have
‘every reason to believe thatit was no accident that she wos rec
ingin his arms. Yee we go right on acting asif we knew 98 much
about those whom we judge a God does. Inthe event, snot
fesy fo decide who was and who was not unjust, even with all
the unnaturally complete information at our disposal
‘Mrs, Bardell’ and Pickwick experience of injustice has hardly10 tntodsion
ep, Peseta pr of syste lnwyers, Dodson and Foxe
tle ons Bardel"on apc” oracotingeny esa
in he United States, andthe sues kwh foreach prom
ie The jay eos out Mir. Brdel and the witness to het
son. On the evidence avaible to them they could not pss
By have decked anyother way thant hl fr Mis uel,
td seb aarded oie sum a damages, We beng
crmicen ofcuse, know that ths isan just vei, ees
Fekwk id ot propor to her But even hs ends cee
“se i whl Pak campiine he oe
ambiguous eases, when a ruler must act dishonorably, how he
does so and in what sprit makes all the diference. "When by
‘ngent circumstances, or some sudden and unexpected ever, &
rulers obliged, for reason of state necesito shuffle out of fis
word and break his faith. he must regard it as toe of the
divine rod... is indeed a misfortune” Suchastain upon one’s
fronted. For all ts realm, necessity ws abet emerge oy
inthe wake of far nore fala eologies. Uni cet Marestand Darwinian philosophies of history reintroduced ron neces
‘ties nto politics, which justified measuretess slaughter In Ame
ke, even before Darwin's work was raped for rast purposes
'srographical and biological necessity doomed the naive Amer
in population to “removal.”
the present state of our country” the House Committee on
Indian Attire forecast in 1818, “one of two things seems] tobe
rscesar. iter that those sons of the forest be eiviized or exter
‘minated” Nothing can be more revealing than Senator Thomas
Hae Bentons celebrated words on the same subject. "Chia
tion or extinction has been the fate of all people who have found
themselves in the track of advancing whites” was necesty
‘edd not egret. These wellknown samples of poical nectar)
should remind us that nothing es wl bring us otal numa
‘ty 0€ loss of tational retains. Can anyone forge the com
‘tring forces of manifest destiny that leds into Mexico, Cab,
and the Philippines? Ths specch by Rep. Samuel 8, Con of OFS
‘in 159 was typical. “Theresa from which noone can escape,
that the weaker and disorganized nations must be abworbed by
the strong and organized nations. Nationalities of inferior grade
"ust surrender to those of superior cvization and poli! The
Mexican races must obey the law of nature” Even John Quincy
‘Adams thought that there were “laws of political gravitation”
“Cuba can gravitate only toward the North Ametiean Union.
which by the same las cannet cas her off rom its bosom.
Given the dates ofthese commonplace sentiments, thete 6 m0
‘aint in pinning the blame on Darwin, The phrase the suri! of
the its was simply added as an ornament tolong standing ds
Pestons. Physical necessity was aleady in place to overcome
‘conflicting politica urges andthe by.no-meens silent opposition
{0 these policies, Indeed, one may well suspect that itn eee
‘exietes where there i vigorous opposition to wale polices
thatthe argument of necessity is loudest, but that sna the cave
Wis the stape item of ideologial discourse everywhere,
Although necesstyhasaways been the favorite word of foreign
Policy specialists, they have certainly not memopolied it use,
Advocates ofthe fre matt valu ound ple itn te
fxpuents amino way judging the coo aly ofthese
orany other economic dctns tnd shal i yl oom
Sidergonly the poll impatons, special ter rotons
efsocial necesita nut The ie make, be
Sselicent animes, but tds ot mean allo ets
treabve pital gent Thy may beth ono or nae
‘bl miortines Some maybe esl psec ora
test ar not beyond human cml some may eo iio
‘oor to change tu espense does notconetaeinponty
The greatest gelato on our plea opine aco
ingtotheheraran creche meebo anny ve do
not have a prey fee ark, Cap, Mit Fdnan
‘ine ot itl sufcent teour edo, prov sa
{nd cot Rasa show butts anably ec condo
AmecanFint Amendment ight epenent pone pos
ty atnding tena npaynent when pi rate re
hwo input ti gree wee
‘ple othe pent san apc of pur con we
them iemsonunly enya roe
tanctns the govenment interes with he ite ster
smust low thre ound abe a compete os of prope
Ande. Ts conelsondepensmoreon thew hen
Cyan the goverinent—oy owerentare defined than
otras Thats hy acon
Soviet shld together by adele ad and any gone
tent that does more than scare property ane the ras
thea ofthe mart sue invite a clups the lance
etapeement, Sach dup of eros ol bonds il ead
toamad scramble nests an endinchs taery st
be encurge, ehh far rm dangers gas iexpases
ise what orto goverment acy Ce ec
‘its amp fn enone pers
rave he ober oppesive, peel and coe then
iene nd meta hone edranc te
‘omer can prevent the ump iyanny™76 Misrtune an Inustie
oe thee san acco rence mise nd
ars boo, hs not el fat ion spat om ee
inerabie iments fiery ta eve sth opel
ico undead bh fences a fe ma
ofthe misortane itera, ne must tar tome eck
by Fei Hayek In The Ming el Juste here
and deat ak whether the misrtues that th peso sco
my must cus can be regarded sun Whe hese het
thi not the case, he has eran ot eroded sty of the
sess ois positon Inthe, ange =
We nee th ie mart othe “spontaneous ae Hay
ca ne cur remedaeornce, Tho
fone ignorance that she acest bie oor
Soomlege o market warns Indus mate te
mc ecsonin tran fh ute th ne
depenison heh feos other prs Wea
nol mee yan inl tty on uno han Nett
‘itis nor cautions pty appear oe ot soy ae a
citing the wking of he and maya dey
not becuse we alo hin scenic but brant oon
Weare letin he dak as me make cur cheers
Inspteo Hye, aa
sol gnoance dw not yl any specie
infeenes. Tete wo way king Wh We mld dots
Of pet uncertainty but theres ntl ob
‘Pontes, or any ether fer The most poate overs
ovldbe puny since theron erence ned
{Tpke inno projec tke fw rasan fos Me pove,
hg would kw the criminal lw and wha eure a ne
sy bth wouldnt beenogho pe emseon stots
um. Having inertia whch ose cen
Soni ey far fr alr, Bt mths pe leo
no Preity cane ring about ponerse ved gee
SEeeeepraton gn meen ee
2 parc diction, though tmedty scan te ee
plausible. : .
Hayek vision of
aye ignorance, it must be repeated is nota phi
sophicl skepticism, stich as Pat's or Montaigne’ Its highly
Selective He believes that we do, infact, know a great deal, spe
ally about the course of ou history It ean evoltonary cul
‘ural process in which individuals spontaneously and function:
ally adapt to changes in oder to maintain the order ofthe whole
We know sehat is and isnot functional n shor. The invisible
hand is thas not jst an explanation of comple soil patterns
‘hat are the outcome of human decisions but not of expt ind-
dual designs.” Itcan also be used o predict the future ofthe
whole order Anat sternly points tothe stiflimits of what sand
whats not possible. In specific detail the operations ofthe hand
ae inexplicable, given our ignorance, but we ean recognize the
whole and predict accurately how twill behave inthe future,
‘specially if we do not obits demands, The certain punish
ment for disobedience i tyranny.
“The spontaneous order isa game of pre chance, and we can
not personally guess what to expect. All we need and ought
Ihave are clear, general rules of personal condt and ownership
‘hat make fe tolrably prediclable and maintain the game ie
This isthe “rule of law” and it consists of general directives ke
the rules of the road, but nothing speci Its nt, ora east
should not, be deliberately made by human legislators. It has
been the positivist’, especially Hans Kelsn’s unfortunately self
falling prophecy that makes us actualy legislate, rather than
‘merely record, the rues that emerge in the integrative evolution
ty process. The tak of general rules ito help people toadap to
‘volutionary changes that ate not planed but are wholly spon
neous emanations ofa multitude of inaivdually blind ations
Although Hayek has many harsh things to say abot people
who cannot shake off ther inherited animist superstitions, his
‘ew of aw asa self woven nets, ashe recognizes, deeply tra
Yona In this he is not wnlike Michael Oskeshot. who thinks
that we can have a good society, but only if we Teave government
10 people who have had 3 least the generations to acquire the
‘habits of conduct required forthe task. * For it des not all for
skills or general des, ost for an inherited capacity 10 recognize78 Mfume ae Injustice
he itmations of one's scty and to ast upon those share
understandings Sucha government would know tat thas
ingto dstbute and these cannot be sponte oper
juste Honor fice, and wealth ae not at pol
merely reais nuitvey othe trations «pope, ot al
219 pln orachiw any spec esals, but mercy talon ey
one urs thr chosen ars ina play hatha noah sa
that appears sinply to beter I we do nt sco the sept
ithas developed over in, we wl ace taster of ht wat
4d trary are the most vcs That these wee a et
in ancient Geese and Rome, nor in medial England, tot
‘mentioned. ta
‘This inng of taonals polis ore make economic
Sar om new: Wiliam Graham Sumner’ akon ess Ny
eral account fh possibly fering sel ant
i was eventually wren into our onsttaions! le the
Supreme Courts decison nis Foon ofunlmentad nee
0. Not that Sumer lacked! moral fervor He thought tat he
Iarkt selected the vious for wealth and thee dow the
inelicent a they deserved. Milknnes were choc ore
wots and we all benefit om i Asha often been ote, i
version fhe ive hand bora dove esenblans she Pos
‘ene of is Calvinist rcienn |
In his way, Milton Friedman echoes him when he war
tha ahough racism is "bad taste? it ean be tduned nly bp
“el pes, not yon ae soit Moree sl
"orb onaivea fo suppose that deopseted ales ond lel
canbe uprooted. bya The ats ofthe re kth
hie lis “atomiatatin” of sackty thin the spntanous
order 7
‘shoul fin this traditionalism reassuring, The cumulative
‘fle. given how rigid the rules ofthe game itself must be,
rually to eliminate socal choice, And inthe real of necesty
itis absurd to complain of injustice,
1 isnot only that distributive justice is a “mitage” to use
Hayek’ term, injustice is a necesary and inherent part of the
‘sPontancous society When the established expectations of ind
‘duals re isappinted they may wal that hey arse
ing an injustice, bat they ae wrong It is merely 3 misorane
Hayek specifically takes Willim Graham Sumner to tak for