Abstract
The life of any human being will inevitably contain an enormous amount of pain and disappointment; and for reasons both of morality and mental health it is important that each person decide, for each pain and for each disappointment, if it constitutes an injustice or merely a misfortune. It is a matter of morality that injustices should be resented and resisted and should occasion guilt and repentance in those responsible for them—all of these responses to be measured out, of course, in proper proportion to the seriousness of the injustices. It is different, however, with mere misfortunes. A virtuous person will attempt to accept them with courage and patience; and a mentally healthy person will allow no room in his mental life for the irrational (neurotic) resentments and guilt feelings that attach to that portion of the world’s ills for which nobody bears any responsibility. This is the insight contained in Reinhold Niebuhr’s famous prayer: “God, grant us the grace to accept with serenity the things that cannot be changed, courage to change the things that should be changed, and the wisdom to distinguish the one from the other.”
This is a review of The Faces of Injustice by Judith N. Shklar (the 1988 Storrs Lectures at the Yale Law School), New Haven: Yale University Press, 1990.
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Caption on an old New Yorker cartoon depicting two clearly successful captains of industry conversing at a fashionable club: “I, too, once wanted to do something for my fellow man. But I could not find anything that would not have put me to some considerable inconvenience.”
She has, for example, a particularly stimulating discussion of Giotto’s pictures La Giustizia and L’Ingiustizia in the Cappella degli Scrovegni in Padua. She does this to illustrate her claim, to be discussed later, that the concept of injustice has a rich and complex life of its own and is not to be understood merely as a denial of justice. She draws the title of her book from the faces portrayed in these pictures.
See Jeffrie G. Murphy, “Getting Even: The Role of the Victim,” Social Philosophy and Policy, Volume 7, Issue 2, Spring 1990, pp. 209–225.
“To take the victims’ view seriously, does not, however, mean that they are always right when they perceive injustice” (Shklar, p. 3).
I put the term “victim”in scare quotes in this sentence to stress its inherent ambiguity. A person who will take the trouble to bear the stress of accusing another of rape is surely a victim in the most general sense—i.e., has been made very distressed about something. There are, however, many possible sources of this distress, and perhaps many different (and not equally relevant) senses of the word “victim” to go with them. Perhaps the accuser has not been raped at all but is only making up the charge to get even with the defendant for some real or imagined rejection; or perhaps the accuser is not lying, but is a victim of a fantasy or misunderstanding; or perhaps the accuser has indeed been raped by somebody, but not by the defendant charged; or perhaps the defendant has been raped and raped by the very defendant charged. I have great sympathy for the claim of special rights against the defendant when those rights are claimed by victims of the latter sort—those I might call true victims—but very little sympathy when claimed in the other cases. The so-called “victims rights movement” does not, in my judgment, always take care to sort these distinctions out and thus I cannot give the movement more than a very qualified endorsement.
Supra, note 4.
Her discussion of certain classical thinkers is very rich, but she essentially ignores recent writers on justice. Since many of these writers seek to continue and refine what she calls the normal model of justice, one would think that a consideration of them would be required if one was going to refute the normal model. A refutation is truly fatal only if directed against the most persuasive and sophisticated versions of the thesis under attack. I am particularly surprised, for reasons that will become clear as this review proceeds, that she does not seriously engage the ideas present in John Rawls’s A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971).
It is, of course, absurd to suggest that injustice is to be understood as a departure from the social and legal rules we actually have. It does not strike me as comparably absurd, however, to suggest that injustice may be understood as a departure from the morally correct rules—i.e.the rules we would have if they were properly selected (picked by an ideal observer, or agreed to by parties in a Rawlsian “original position,” or in reflective equilibrium with the largest set of our pre-theoretical convictions, or maximizing utility, or commanded by God, or whatever your favorite moral theory happens to be).
One could regard Shklar’s claim that “we are all potential victims” (p . 15) as simply another way of stating that fundamental insight into the vulnerability of each of us that lies behind Rawls’s and other contractarian theories of justice. See also, Robert E. Goodin, Protecting the Vulnerable (Chicago: University of Chicago Press, 1985).
The idea that many theories of social justice meet shipwreck because they are based on absurdly optimistic assumptions concerning the knowledge it is possible to have of complex human interactions is, of course, a familiar theme in the thought of Friedrich von Hayek. In this regard it is interesting to read Shklar’s discussion of Hayek on pp. 76ff. Hayek is one of the few contemporary writers who gets more than a passing mention.
We are accustomed these days to the claim that political theory should listen to more “voices”—women, minorities, the handicapped, etc. Perhaps Shklar’s point is that one class whose voices should be heard—a class that cuts across all the others—is the class of all members of society who believe that they are victims of injustice. It should not be thought, by the way, that only majority grievances will deserve a hearing in a society governed by democratic principles. The idea of majority rule that one associates with democracy is merely a voting mechanism. It is not an account of whose interests are worthy of concern and respect.
Many of Shklar’s concerns with the perspective of victims can perhaps be incorporated into a liberal theory of justice. If Rawls is correct when he claims that a theory of justice should be regarded as justified only if it puts us into reflective equilibrium—i.e. , coherently orders and systematizes our pretheoretical moral convictions—then one might simply take Shklar’s point about victims to be a proper caution that we not be too restrictive about the groups of people we include in the words “us” and “our.” Of course, the more diverse groups we include, the more difficult it may be to achieve reflective equilibrium; and this could pose a serious problem for Rawls’s version of liberal theory. One hopes, of course, that this kind of problem can be overcome; for to give up on the idea of universality with respect to the principles that define the basic structure of society is to give up on political morality and to settle for mere interest group politics.
This depends, of course, on what you are looking for in the literature. So far as I know, Rawls never uses the phrase “passive injustice,” but he does speak of the “natural duty to support just institutions.” Would not a person who omitted to give such support exhibit exactly the same flaw that Shklar wants to note under the heading of passive injustice?
By costs and risks I do not, of course, mean simply matters of money. One cost of programs to aid the disadvantaged can be the possible impact of such aid on the rights of others. This is one of the reasons why programs of affirmative action are so controversial. It is possible, of course, that Shklar means to include the concepts of costs and risks in her words “can” and “possibility” and “could,” but the worries here are too important to her enterprise to be passed over so lightly.
Vt. Stat. Ann. tit 12, Section 519: “A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.”
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Murphy, J.G. (1992). Injustice and Misfortune. In: Retribution Reconsidered. Philosophical Studies Series, vol 54. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-7922-3_13
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