The Impossibility of Justice

Tom-of-the-coast-of-Maine-2Justice is a term that is often misused and misunderstood.  To be correctly understood,  justice typically needs to be preceded by an adjective to circumscribe a domain of meaning.  For example, “social justice” defines one sphere of meaning while “poetic justice” refers to an altogether different sphere of meaning.

In the context of legal or juridical proceedings, justice implies, for most people, something like fairness, impartiality, evidentiary presence and clarity as well as openness to allowing that evidence to lead to an outcome that is not already determined prior to any judicial proceedings.

Ethicists define several subtypes of justice that are minimum requirements for “juridical justice.”  The first of these subtypes is “procedural justice.” This type of justice refers to the actual and perceived fairness of the process being used to reach a conclusion and implies rules of evidence, testimony etc. that do not favor one party over another and which ensure that all relevant information is available to those adjudicating a case or attempting to reach a personal or organizational decision.

A process which is procedurally just is a sine qua non for an outcome which is either “distributively” or “retributively just.”  Distributive justice is most often used in a social justice context to refer to the distribution of social goods and retributive justice is used most frequently in situations where the possibility of paying a penalty for wrongdoing might be required.  Both distributive and retributive justice are germane to the sphere of juridical and legislative decision making.

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Lady Justice

In the absence of procedural justice, it is impossible to have either a just distribution of the social goods under consideration, like a job on the Supreme Court or the application of just retribution, like impeachment for serious improprieties in office.  Adherence to the principles of procedural justice is one of the principal reasons that in the United States and other democracies, both ancient and modern, Lady Justice is pictured as blind and holding the scales of justice in one hand and the sword of righteousness in the other.

The recent United State Judiciary Committee hearings on the nomination of Brett Kavanaugh to the Supreme Court were an exercise in misogynistic procedural injustice.  The sub-committee did not hear from all the available witnesses nor ground their own reflection on an independent fact-finding investigation by the FBI.  Several Republican members of the sub-committee voiced their intention to vote for Judge Kavanaugh prior to the conclusion of the hearing.  Chairperson Grassley failed to maintain good order as he allowed Judge Kavanaugh to rail against the entire process.  Kavanaugh’s yelling and invective stood in stark contrast to his accuser’s heartfelt retelling of the evening she was attacked and the impact of that attack on her life.

As I write this, the sub-committee plans to go forward with a vote without an independent investigation, without hearing from all the relevant witnesses, in the face of the wholly believable testimony of Dr. Ford.  The procedure the sub-committee has followed is deeply flawed and therefore unable to provide a just outcome for Dr. Ford or anyone else.

In this case, Lady Justice was not blind to the position and power of the parties, she did not arrive with scales unweighted or the with the sword of righteousness ready to challenge its enemies.  With the exception of Dr. Ford’s testimony, the sub-committee was rather like Macbeth’s world, “full of sound and fury; signifying nothing.”

Dr. Ford sought to do her civic duty and “help” the sub-committee.  She sought to “signify” something and to make a difference but there was no justice for her and consequently no justice for any of us in a hearing that never had even the rudiments of procedural justice.