The Sense of Injustice
by Edmond Cahn

A defense of the state and its legal process on the grounds that the process reflects our sense of injustice and is evolving toward a better and better approximation of justice. He reports some facts and expresses some reasonable views as premises. Then he expresses some unintelligible things, which seem to act as additional premises. Then he draws conclusions that I hate. His unintelligible premises include poetic nonsense, collectivistic ideas, and reification of the law.

He strings words together in original ways. When he manages to write something that makes sense, it is often quotable. He likes to show off his vocabulary and his familiarity with legal scholarship from antiquity and from various countries. Overall he is not a systematic thinker. He is a poet who worships the law.

"'Justice,' as we shall use the term, means the active process of remedying or preventing what would arouse the sense of injustice." (13-14)

"... inequalities resulting from the law must make sense." (14)

"... it becomes unjust when it discriminates between indistinguishables." (15)

"Poetic justice, rare enough as it is, is also imperfect, for the wholesale malefactor can die only once." (16)

The legal process incorporates attributes and procedures such as "impartiality, notice, fair hearing, and judgment of defined issues predicated upon identifiable evidence." (18-19)

"It [the sense of injustice] denotes that sympathetic reaction of outrage, horror, shock, resentment, and anger, those affections of the viscera and abnormal secretions of the adrenals that prepare the human animal to resist attack. Nature has thus equipped all men to regard injustice to another as personal aggression. Through a mysterious empathy or imaginative interchange, each projects himself into the shoes of the other, not in pity or compassion merely, but in the vigor of self-defense. Injustice is transmuted into assault; the sense of injustice is the implement by which assault is discerned and defense is prepared.
Justice thus acquires its public meaning, as those in a given ethos perceive the same threat and experience the same organic reactions. It is possible to speak of justice without utter relativism or solipsism, just because of this astonishing interchangeability within man's imagination. If a man did not have the capacity to recognize oppression of another as a species of attack upon himself, he would be unready--in the glandular sense--to face the requirements of juridic survival. In fine, the human animal is predisposed to fight injustice." (24-25)

"His survival does not require that the sense of injustice encompass infinitude; at a certain distance from the center in sympathy and circumstance, his reaction will shade off into contemplation, cool appraisal, and ultimate indifference." (25)

"The sense of injustice now appears as an indissociable blend of reason and empathy. It is evolutionary in its manifestations. Without reason, it could not serve the ends of social utility, which only observation, analysis, and science can discern. Without empathy, it would lose its warm sensibility and its cogent natural drive. It is compounded, indissolubly, of both and can subsist on neither alone. For sheer rationality without an emphatic fundament would usually degenerate to extreme skepticism and doubt; while empathy, uninformed by reason, would serve up only the illiterate gropings of animal faith. Together reason and empathy support our juridic world. Through them men may learn to identify their own interests with those of an unlimited community, no longer doubting in philosophy what they do not doubt in their hearts." (26)

"Like other biological equipment it endures because it serves, and it serves better through progressive adaptation." (27)

"Every positive act of justice represents not only the absence of attack but the bulwarking of habits, techniques, and standards which safeguard against attacks to come. This is a prime social beneficence. It furthers solidarity at the very seat of all centripetal impulses--the imaginations of men. We need not therefore rest content with a shallow utilitarianism, not assert that the useful is the just, that law is just only because it is socially useful. Justice has a nobler claim to regard. The law becomes useful in being just, for justice creates and confers utility." (32)

"Justice is to security and legal logic as bedrock to the foundation and flying buttresses of a cathedral." (37)

"The oldest and loftiest notion of freedom is presented by contemplative philosophy. ... This requires a rather complete exemption from labor and affection, from possessions, and perhaps even from compassion. It involves a resolute withdrawal from the arena of affairs, sometimes accompanied by a touch of contempt from those who remain." (51-52)

Here is an apt bumpersticker for socialism: "The insect that moves loses the advantages of protective coloration" (55)

"The medieval trials by ordeal likewise assumed that Providence was immediately concerned with the validity of each individual swearing. Like ourselves, Plato thought Providence was more importantly occupied, and accordingly proposed to abolish litigants' oaths." (64)

"The ancient stratifications were to be torn away and every man was to be given some chance in the contest. But a condition was attached: He must not whimper if he lost, no matter how adventitious or disproportionate his disaster. He must not look to the courts if he were ripped, for law and equity ... would stoically shield their eyes. And this robust neutrality continued until it came to be perverted by its own beneficiaries. The winners in the race for business success, finally wearying, asked the judges to perpetuate their leads by enjoining interference with established advantageous relations, and the courts, always respectful of possession, made it a policy to comply." (75-76)

"Everyone is free now to discuss transubstantiation or the divine right of kings, conceptualism or the merits of the manorial system, though topics like these are covered with some ancient bloodstains. The problem of mobility does not arise unless the intellectual issue under consideration pinches here and now." (79)

"... if all opinions are to be judged equally unworthy of trust, everlasting social debate is not worth its price in waste motion." (95)

"Even without a cultivated sense of injustice, human beings may be willing to risk death for their own freedom, for to become unfree is to lose power, to atrophy, to die in part. But only the mysterious interchange that informs the sense of injustice can spur men to accept that supreme risk for the freedom of others or enable them to protect the advocacy of the very thoughts which they detest." (103)

Although freedom itself is an amoral concept, it cannot be achieved "unless the sense of injustice can be cultivated in daily use, unless habits of justice can be learned" (104)

"The places where a man has reason to feel insecure are land, sea, and air, and the justifiable anxious hours of his day are twenty-four. His body is unsafe at all times, precariously balanced between forces that may at any moment maim or annihilate it before disease can consume it from the inside. His mind teeters on the narrow edge of sanity; neither he nor anyone else can be certain whether it has slipped over. And each separate man has his own private nest of insecurities to add to those of his species--the job, the status, the love that are always in danger of slipping away." (124)

Year Read: 1999


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