Sun, 25 Feb 2018

Writings on Justice

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Page 1

Melville's War Poetry and the Human Form

Printed in A Political Companion to Herman Melville, ed. by Jason Frank.

You can read the essay here.


"Justice," The Encyclopedia of Political Thought, ed. by Michael Gibbons (John Wiley & Sons, Inc.)(

The tension between legality and equity is only one of the fundamental ambivalences that run through the idea of justice. The good that is justice is either an absolute good or a relative good enacted by a particular political community; as distributive justice, justice is also a political good comprising the proper distribution of wealth and status in society. Some understand justice to be what is useful and brings advantage to the greatest number, while others hold that justice is an unchanging moral duty. Political economists identify justice with efficiency, while social theorists name justice fairness. Justice is frequently identified with legitimacy, although justice as a claim of obligation cares not for legitimating procedures. Moral philosophers think that justice can be determined by analysis and reason, while critical philosophers imagine justice to say the unsayable. And yet, despite all of these opposing ideals of justice, justice remains the central idea of politics and political thinking. This essay is outlines the major ideas and thinking about justice in the history of political thought. 

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Instituting freedom: Steve Buckler and Hannah Arendt on an Engaged Political Theory

European Journal of Political Theory 2014, Vol. 13(3) 372–377

Steve Buckler’s Hannah Arendt and Political Theory is most revealing in the final chapter, ‘‘The Role of the Theorist.’’ I did not know Buckler, but this final chapter of his last book must stand as his apologia, his attempt—mediated through Arendt—to offer an account of a lifelong pursuit of an engaged politics. The theorist, Buckler writes, thinks and speaks from ‘‘the standpoint of the reflective citizen rather than [the standpoint] Arendt takes to be the traditionally accented voice of the philosopher’’ (154). He writes political theory as a citizen first, which means that he shows a general concern for ‘‘the enactment of the political and the conditions of its sustainability—the common world that provides us with grounds of common sense and terms within which we can interact coherently’’ (154). Unlike so much political theorizing today that takes critical thinking to demand criticism of everything, Buckler insists that theorists ‘‘must now share a common concern with the actor—albeit from a different experiential perspec- tive—a concern with the world and with its unguaranteed active maintenance’’ (161). The thinker today must think ‘‘for the sake of the world,’’—he must love the world—and thus must attend to the world and even tend to the worldly in ways that moderate the unlimited criticism of those theorists who do not recognize the precariousness of the modern world.

European Journal of Political Theory 2014, Vol. 13(3) 372–377

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The Encyclopedia of Political Thought, First Edition. Edited by Michael Gibbons. © 2015 John Wiley & Sons, Ltd. Published 2015 by John Wiley & Sons, Ltd.

Justice is the virtue of acting rightly and properly with regard to others (political justice) and with regard to oneself (moral justice). Justice is also understood as the good, the appropriate, or what is right in a given situation. Rhadamanthus, the Greek judge of the dead, meted out justice according to the maxim: “Suffer what you have done.” The Roman jurist Ulpian writes: “Justice is the constant and perpetual will to render to each man his due.” The Golden Rule holds: Do unto others as you would have them do unto you. What these examples of folk wisdom share is the sense that justice is about proportionality and also singularity. The claim that justice is “to give to each his/ her own” expresses the aspiration for justice as equity. Because no two persons or circum- stances are the same, laws that treat everyone equally are, as Plato argued in the Statesman, stubborn and stupid. It is better, Plato concludes, to be governed by a wise philosopher- king than by rigid laws. Plato’s greatest student, Aristotle, agrees that there will always arise new cases for which the application of the law will be unjust. But his solution is not to discard law in favor of a philosopher-king, but to allow wise judges to straighten the defects in law. It is just, Aristotle writes in the Nichomachean Ethics (NE), to rectify the defect in law by deciding as the lawgiver would himself decide if he were present. This rectification of law, or equity, is one fundamental aspiration of justice: to do what is fitting in each particular instance.

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Should We Justify War

Published in "Just War in Religion and Politics," ed. by Jacob Neusner, Bruce Chilton, and R.E. Tully (University Press of America, 2013).


Abstract: In speaking of "just war," we speak not of justice but of justification. As a matter of justification, just war theory can and often does work to exclude and preclude the question of justice in war. What is needed, rather, is a determination to recall that justice, and not merely justification, has a place in war. Instead of the justifications offered by just war theorizing, we must demand that those who fight and we who think about war not blind ourselves to the illumination of justice amidst the fog of war's justifications.




Forthcoming, Encyclopedia of Political Thought. Ed. by Michael Gibbons

Apologies. This article is not yet available online.

The Angry Jew: Hannah Arendt on Revenge and Reconciliation

Roger Berkowitz, Philosophical Topics, Fall 2011.

Sholom Schwartzbard killed Simon Petlura in an act of revenge. He admitted his crimeand a French jury acquitted him in 1927. For Hannah Arendt, Schwartzbard’s actions show that revenge can, in certain circumstances, be in the service of justice. This paper explores Hannah Arendt’s distinction between reconciliation and revenge and argues that Hannah Arendt embraces revenge as one way in which politics and justice can happen in the world, but only under certain conditions. First, Arendt only endorses revenge when the crime calling forth vengeance is extraordinary, one that bursts the bounds of traditional legality. Second, the avenger must give himself up for judgment to the legal system, asking a jury to judge whether his extraordinary act was just even though it was illegal. These are strict conditions and will only rarely be met. When they are, revenge can be a profoundly political act in the service of justice, one that can restore a broken political order.

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The Power of Non-Reconciliation – Arendt’s Judgment of Adolf Eichmann (2011).

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From Justice to Justification: An Alternative Genealogy of Positive Law

University of California, Irvine, Law Review v. 1.3 (2011).

Apologies. This article is not currently available online.

Assassinating Justly: Reflections on Justice and Revenge in the Osama Bin Laden Killing

Culture & the Humanities, Volume 7 Issue 3, October 2011

Assassination has always been part of war and in recent years it has played increasingly important roles in United States military policy. The assassination of Osama bin Laden offers itself as an example of an assassination that nevertheless claims to be just. Comparing the bin Laden assassination with the assassination of Simon Petlura by Sholom Schwartzbard in 1927 and the kidnapping and trial of Adolf Eichmann in 1961, this article argues that assassinations, which under certain conditions are justified under international law, can also be just, but only when they are accompanied by the risk of a jury trial.

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Page 2

Why We Must Judge

Democracy: A Journal of Ideas (2010)

In 2004, The New York Times reported that numerous captured Iraqi military officers had been beaten by American interrogators, and that Major General Abed Hamed Mowhoush had been killed by suffocation. The Times has also published the stories of the so-called “ice man” of Abu Ghraib, Manadel al-Jamadi, who was beaten and killed while in U.S. custody, his body wrapped in ice to hide evidence of the beatings; of Walid bin Attash, forced to stand on his one leg (he lost the other fighting in Afghanistan) with his hands shackled above his head for two weeks; and of Gul Rahman, who died of hypothermia after being left naked from the waist down in a cold cell in a secret CIA prison outside Kabul. And the paper has documented the fate of Abu Zubaydah, captured in Pakistan, questioned in black sites and waterboarded at least 83 times, before being brought to Guantanamo, as well as the story of Khalid Shaikh Mohammed, waterboarded 183 times.

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Approaching Infinity: Dignity in Arthur Koestler's Darkness at Noon

Philosophy and Literature, (October 2009)

Human dignity underlies human rights and is a pillar of liberal politics. Yet what is dignity? And what is the place of dignity in politics? Arthur Koestler’s Darkness at Noon is a searing inquiry into the conflict between dignity and reason as opposing grounds of politics. Koestler shows how a rationalist politics corrodes dignity. In response, he imagines dignity as a countermeasure to reason. Political action, he suggests, must be informed by a non-rational and non-religious appeal to the infinite that is the one guarantee of a human politics. There is no justice, Koestler argues, divorced from infinite justice.

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Revolutionary Constitutionalism: Some Thoughts on Laurie Ackermann's Dignity Jurisprudence

Acta Juridica (2008)

- Reprinted in Dignity, Freedom and the Post-Apartheid Legal Order, ed. by Alfred Barnard (Jutta, 2009).

Justice Laurie Ackermann’s decision in Ferreira is a study in tonal dissonance. Ackermann’s 232 paragraph legal opinion begins slowly. It plots out the judicial history of the case; it wades through questions of jurisdiction and standing; and it frames the question of the case all without offering a narrative version of the facts.

One must read carefully and between the lines to discern that the case concerns a plaintiff, Clive Ferreira, who was employed by Prima Bank Holdings Ltd., a corporation that had gone bankrupt and ceased operations. Mr. Ferreira was summoned to give sworn testimony about the affairs and property of Prima Bank. He declined, asserting a right not to offer self-incriminating testimony. In doing so, Ferreira violated section 417 of the Companies Act that requires such testimony in administrative proceedings and also expressly allows that such testimony ‘may thereafter be used in evidence’ in a criminal proceeding.

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Transcendence & Finitude in Drucilla Cornell's Philosophy of the Limit

Memory, Imagination, Feminism. On Drucilla Cornell, ed. Renee Heberle and Benjamin Pryor. (SUNY, 2008)

At the end of my first year of graduate school, I was bored. Faced with the reduction of thinking to politics on the one hand and the perversion of thinking into an indulgent pastime on the other, I was experiencing firsthand the antiintellectualism that now pervades our elite colleges and universities. And yet, from out of the swamp that is the American academy, two discoveries gave me hope. One was the encounter with the thought of Martin Heidegger through my mentor in Berkeley, Philippe Nonet. The other was the work of Drucilla Cornell.

I had never heard of Cornell when I was assigned The Philosophy of the Limit in a seminar in the Berkeley Rhetoric department in 1992. What struck me in that book—struck me so hard that I sought out the author and, with her blessing, took a leave of absence from graduate school to journey back across the country to study with her for six months—what struck me was its force of thinking.

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Democratic Legitimacy and the Scientific Foundation of Modern Law

Theoretical Inquiries in Law, v. 8.1 (2006)

This Article explores the unacknowledged impact of the scientifc provenance of modern law. Justice, I argue, is threatened by social scientifc thinking that subordinates justice to legitimacy, efficiency, and fairness. In doing so, I contest the conventional wisdom that positive law originates not with science but with democracy. In addition, I show that the power of the asserted connection between positive law and democracy depends upon a dangerous blurring of the distinction between justice and legitimacy. Finally, I offer an alternative genealogy of positive law that shows modern law to have been transformed into a science. My hope is that by pointing to the threatened loss of justice as an ideal, my work can help to hold open the possibility that law reclaim its foundation in the art of judgment instead of the science of law.

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The Accusers: Law, Justice, and the Image of Prosecutors in Hollywood

Griffith Faculty Law Review v. 13, #2 (2005)

This essay begins with the observation that the American culture industry is nearly incapable of presenting state prosecutors in a positive light. Through readings of three apparent exceptions to this rule, the essay argues that prosecutors can only be heroically and positively conceived on screen when they abandon their traditional association with law and seek to do justice beyond the laws. To the extent that prosecutors can be seen as a proxy for the image of the ideal of legal justice itself, this essay argues that the imagining of prosecutorial justice in Hollywood shows that law has lost its once-assumed connection with justice.

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Error-Centricity, Habeas Corpus, and the Rule of Law as the Law of Rules

Louisiana Law Review v. 64 (2004)

On August 10th, 1927, as hundreds of thousands of protesters marched in New York, Paris, Berlin and in cities from South America to the Soviet Union, as workers around the world called general strikes and took to the streets, and as, in the words of one commentator, “the world waited,”1 a team of attorneys representing Nicola Sacco and Bartolomeo Vanzetti sought out United States Supreme Court Justice Oliver Wendell Holmes, Jr. Trailed by journalists to Holmes’ Beverly, Massachusetts summer residence, the attorneys pleaded with the Justice to grant Sacco and Vanzetti a writ of habeas corpus. If Holmes were to grant the writ, the murder verdict against the two Italian-American anarchists would be nullified, and they would be set free pending a new trial. As Sacco and Vanzetti were scheduled to be executed that evening, time was short and tensions were high.

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Law, Justice, and the Transformation of the Prosecutorial Ethic

Rechtssysteme im Vergleich: Die Staatsanwaltschaft, ed. Dieter Simon, et al. (2004)

One of the great puzzles of the popular genre of legal films is that despite the insatiable hunger for cop action films in which beleaguered police overcome great odds to put the bad guys in their proper place, their partners in law enforcement, the public prosecutors, are virtually invisible in the history of American film. Police dramas have no problem romanticizing the role of law enforcement; for some reason, however, the popularly conceived heroism that attaches to cops through the imposition of order on the chaos of centripetal passions does not carry over to prosecutors. On the contrary, prosecutors have been and remain one of Hollywood's most regularly scorned professions. Indeed, it can be said with a surprising degree of confidence that Hollywood has not produced one single film in which prosecutors are either heroically or sympathetically portrayed in their everyday job of prosecuting and convicting criminals.

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'Not Guilty' - Millennial Speculations on Legal Defense from Queen Fredegond to Bill Clinton

Advocatus Defensorum, ed. Dieter Simon, et al. (2000)

Accused of adultery, the 6th century Merovingian Queen Fredegond was challenged by her dead husband's brother to prove that her son, the future Clotaire II, was indeed of royal progeny. The Queen, in conformity with the law, defended herself by means of a compurgatory oath. The oath was in effect a formal and material denial of the charge and an assertion of her innocence. The success of the compurgation oath rested solely on the ability of the defendant oath-taker to provide the requisite number of oath helpers who would swear, not to the truth or falsity of the accusation, but to the honor and truthfulness of the oath taker. Fortunately, Queen Fredegond was so generous a lover that she had little difficulty rounding up three Bishops and 300 of the most honorable men in her realm to serve as her co-jurators. With her oath, the Queen alleviated the King's (assuredly justified) suspician, defended herself, preserved her son's claim to a noble birth, and repulsed the accusation of adultery. No evidence beyond her denail was introduced in her defense.

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Truth and Error: Legal Error and the Uniquely American Doctrine of Habeas Corpus

Error Iudicis. Juristische Wahrheit und justizieller Irrtum, ed. A. Gouron, et al. (1998)

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Page 3

The Judge as Captain

Europaische und Amerikanische Richterbilder, ed. A. Gouron, et al. (1996)

To pursue the question of judicial duty, it is first necessary to gain clarity about the concept of obligation. An obligation, if it is to be morally valid, must be absolute and unqualified. Oliver Wendell Holmes, Jr., one of the United States' greatest Supreme Court Justices, was one of the last legal thinkers to understand the necessity that duty be absolute. As Holmes writes, "[t]he test of a legal duty is the absolute nature of the command." If a judge is to have a duty, it must be absolute. But towards what is that absolute duty?

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