Justice: One or Many? Writing from New Symposium 2007

Barry Sanders

Justice is a perfect cube —Aristotle, The Nicomachean Ethics

Beth Hamishpath. After six amazing days on the island of Paros, I leave on the 13th of May 2006 and fly to London. At 29,000 feet, in order to work on the opening chapter of a new book, I begin reading Hannah Arendt’s Eichmann in Jerusalem, her eyewitness account of the Eichmann trial in 1961 in Jerusalem. Actually, this is my second or third time sitting with her. The book opens with those words Beth Hamishpath: “The House of Justice.” The court usher shouts this out each morning to signal the opening of that day’s session. It is the equivalent of “order in the court,” but here the idea of order gets reflected in reference to architecture, to a house. If it is to stand, to withstand, the house must adhere to strict building guidelines. In this, the house of justice, all is ordered and regulated, all is made serious through symmetry—from top to bottom, from side to side, much like a perfect cube:

“Beth Hamishpath. These words . . . announce the arrival of the three judges, who, bareheaded, in black robes, walk into the courtroom from a side entrance to take their seats on the highest tier of the raised platform. Their long table . . . is flanked at each end by the court stenographers. Directly below the judges are the translators . . . One tier below the translators, we see the glass booth of the accused. Finally, on the bottom tier. . . are the prosecutor with his staff of four attorneys . . and the counsel for the defense, who during the first weeks is accompanied by an assistant.”

Eichmann sits inside that glass cube, emotionless, staring straight ahead. He wears a grey, three-piece suit. The reflection off the glass causes the details of his face to disappear. He is evil incarnate—that’s what we believe as we read page after page, until we come to the last three words of the last chapter, in italic: banality of evil.

What is justice, I wonder; what would be appropriate punishment for such a monstrous bureaucratic killer? Is there one? Does the banality, the utter mundanity of evil alter my view of justice? My mind drifts to George Steiner’s wickedly pleasureful novel, The Portage to San Cristobal of A.H. That book imagines the capture of Adolf Hitler deep in the jungles of South America, by Israeli Nazi hunters, and the long and deliberate journey to bring him to justice. But, again, that horrible question arises: what is appropriate punishment? How does the state go about, not merely executing Adolf Hitler, for that is easy, but meting out the appropriate justice to such a villain? Public hanging? Torture?

Beth Hamishpath: the words echo. Do we live always inside that house, no matter where we are, or who we are? And so, suddenly halfway through my London trip, an e-mail message from Chris Merrill: the Paros Symposium for 2007 will take up the topic of justice. How cosmic, as we used to say, how synchronic. Or, maybe not. Maybe the next step after the Commons—the topic for 2006—can only be justice. Our humaneness, our community, is certainly something we hold in common, and so much of what we call society rests on the idea of justice.

And so, from that moment, at 29,000 feet, until now, I have been thinking about this necessarily knotty topic, justice. I have realized very little. Let the following stand as ruminations, as those kinds of inklings and insights that the inventor of the essay, Montaigne, allowed himself. You might recall that, to aid him in both his thinking and writing—for him the very same activity—he wore a medallion around his neck, on one side of which he had engraved the line, “What Do I Know?” and on the other side a question mark.

I begin with the question mark. Justice does not, for me, exist as an abstract concept. I can write about justice only through the particular: I must have instances or events. History has even provided a statue, the goddess Themis, to make the idea of justice and order concrete. Thus, while I am aware of the fundamental contribution the philosopher John Rawls has made to the subject, I back away from any attempt at an academic and abstruse discussion of justice.

I find myself wondering, instead, about the character of this lady Themis, and how she has for so many centuries inserted herself into our lives. I believe she has very little connection to our contemporary experience, except when we sometimes find ourselves touched by the harsh reality of the court and its extreme punishment. I do not mean mere citations for illegal parking or a loud muffler, or even fines or sanctions or, more often these days, jail time. I refer to the severity—the finality—of capital punishment: the snatching away from us of the gift of life. To hear the news about some state-sponsored execution moves us, for a few brief moments anyway, inside this strange but powerful institution called justice. At 12:01, on May 1, 2006, at the Federal Penitentiary at Folsom, Kansas, so and so received the first of three injections. Justice was served.

Oh, that horribly passive construction, so familiar to us, “justice was served.” A sentence that makes the grammatical gaffe “agent deletion” so apparent: no subject, no actor. Justice, like a mighty oak, fell across the inmate’s path. But that’s not why I call justice strange. I do so because it runs so counter to our own expectations about the way the world works. Events upset us, disappoint us—things do not unfold as we had planned or hoped—and we say, That’s just the way world works. We may even go a bit farther and mutter, There’s just no justice in this godforsaken world. Things happen, events turn against us: That near-sighted or nearly blind watchmaker has wound up the universe and left it to run on its own.

That is why I single out that one act, capital punishment, for the reality of the state taking someone else’s life can yank us out of our solitary lives and make us think, not of ourselves, but of the community. That is one of ours, a human being, who has been executed, and so we ask the usual questions: Is it right for the state to take a life; does it have the right; is lethal injection humane, painless, painful, or just torture; what does an eye for an eye really mean? The image of some soul strapped to a gurney, or lashed into a wooden chair, or hooded before the executioner, provides one of the few opportunities in contemporary life, I believe—if we in fact choose to take the opportunity—for considering what Walter Benjamin calls the aura of actual breathing and feeling human creatures. Life turns from comedy or tragedy into a snuff movie.

Notice how fast I slipped from considering justice to confronting punishment. I moved quickly, and we all do, from the scales that Themis holds in her left hand to the sword she holds in her right. That lady means business. She is accustomed, like a no-nonsense but caring parent, to scaring her citizens into toeing the line. She will not play favorites. As she pitches her tough love, she means what she says. And we had better listen. For she stands before us as both judge and jury. A conflict of interest? —well, it certainly makes appeals more complicated.

Justice raises the most basic and perplexing questions. Is it even possible? Does such a thing really exist? Must we use the language of victim and victor whenever we talk about justice? Who checks the scales for accuracy? And why have we embedded the concept in a classical goddess, when, for so many other abstractions, like hate or jealousy or revenge, we have no statue? Indeed, the idea sounds ludicrous, a statue dedicated to hate or anger. Where would we place such a deity, outside the steps of the Pentagon, perhaps?

I begin, then, from this place of uncertainty to talk about one of the strictest, most thoroughly argued, regulated and controlling principles of civilized life, one that virtually everybody believes must be in place and in good working order for citizens to enjoy a humane society. And, while I have set aside John Rawls from the outset, I fudge—do I do him a slight injustice? —by borrowing from of one of his titles, Justice as Fairness. Fairness, Rawls says, “is a symmetry of everyone’s relation to each other.” I, too, want to talk about that part of justice that involves fairness—in so far as I understand that word—but not in the way Rawls intended. And I wish to start with the group that I think holds the concept, like the lovely Themis, in their very beings. To do that, I turn now to the other side of Montaigne’s medal, “What do I know?” and to those I believe understand justice best, and that is children.

Young children react to injustice—almost instinctively—as if some unspoken aesthetic ideal dear to their hearts had been violated. “Tommy’s not being fair,” Bobby screams at the top of his lungs on the playground, unaware, of course, that the word fair, in the English language, first described what appeared pleasing to the eye or not. While Bobby of course knows nothing about aesthetics—most probably not even the word—he does know, in that moment, that some essential symmetry has been lost: Tommy has broken the regular order of things, his act of injustice coming at Bobby as something unappealing, lacking in harmony, and just plain ugly. (On the playground, kids also know “fair” as the opposite of foul: a baseball hit out of the field of play has gone foul. It just aint pretty. It stinks.) Even though he is unaware of it, in his short life Bobby not only feels most at home with beauty, but he has come to expect it, as well. He moves through the playground with those two things, beauty and justice, interwoven in his young life. Over the years, we hang on with all our might to those twins—beauty and justice.

Bobby cries foul because he feels cheated: Tommy took Bobby’s turn at shooting baskets, or Tommy grabbed the basketball from Bobby, or Tommy made Bobby trip as he dribbled the ball. So, as I say, Bobby feels cheated; and we must answer the question: how can he be made to feel whole again? To use the language of the playground, how can Bobby get his rhythm and beat back? How can he walk once again with that high-school swagger, with that feel-good groove? Well, the coach can allow Bobby to have an extra free throw or two, or he can give the basketball back to Bobby, or he can throw Tommy out of the game. He can try to balance things out, and reach for justice and, if he’s good, make a public show of it, to boot. But Bobby can only believe that justice is being served if he has faith in the process; that is, if he believes that the coach will bring things to a conclusion with an even hand; if he believes that the umpire or referee is listening; and that Tommy will bend to the coach’s will.

All of this to say that justice lives, not in the decision, but in the procedure—“the system”; and in my rather silly example it takes place on the playground in front of the other young boys and girls: before an audience. Like Bobby, we all need to see justice at work, to observe the way it works. Even though we treat Justice as blind, that does not mean she has to be uncaring, as well.

The language of aesthetics is so deeply buried in the concept of playing by the rules that, throughout our entire lives, we flirt with justice without recognizing its long-standing connection with art. Thus, when Bobby protests that he feels cheated, he draws unwittingly on that connection, for the word cheat itself derives from cadence, a musical term, of course, which yields cadenza, but also words that interrupt the regularity of rhythm, like decadence and decay. And, as adults, when we say that a portrait does not do the sitter justice, we mean that the reproduced image does not closely enough resemble the real person: the artist has blown some aesthetic rule. The portrait is “off the mark,” not a “fair copy.” Likewise, when we denounce someone’s argument as specious, we refer to the way the argument sounds, its surface slickness and apparent elegance. In fact, specious first applies to statements of seeming justice, arguments that sound good but cry out for substance and real meaning. Here, the argument has violated the aesthetics, the elegance of logic. Our statements about right and wrong, especially at a basic level, typically conflate the language of aesthetics with that of the court, evident in sentences like, I did not get my fair share; things just did not pan out for me; I feel cheated. In the House of Justice, everything must be plumb.

But if injustice causes the world to wobble out of harmony, then we might reasonably ask, out of harmony with what? With the way we think things ought to be, or, perhaps more accurately, with the way we think they should look or feel or sound? Is racial equality, on its face, just plain attractive—in perfect balance—and capital punishment, no matter how strongly sanctioned by the state, no matter how villainous the victim, and no matter how carefully the executioner pays attention to details, just outright ugly?

The electric chair, the gurney—even if designed by Frank Gehry or Philippe Stark, would still appear gruesome and disgusting to us, given their context. Indeed, the electric chair is Mission Oak, designed by Gustav Stickley that, without its electrical apparatus, might sell for thousands at Christie’s or Sotheby’s. Nonetheless, we prefer to see it as not-a-chair—at least as a chair no one wants. Certainly, no one, except the cynical or highly curious, would want to sit on it. This is the aesthetic equivalent, I think, of protesting the death penalty in the only congruent way possible, with vigils of complete silence. To speak about such an act, to raise to the level of argument whether the state can humanely kill another human being is morally repulsive.

In my playground example, I suggested that Bobby must have the ball or bat returned to him. He must see the result and, if at all possible, so should the rest of the children, which is to say that they should see justice in action. The umpire or the coach or the teacher acts for the entire class. Unlike the public hangings of the seventeenth century, the state forbids us to view executions today. When we do, as with Saddam’s hanging shown in some graphic detail (more than I want) with a cell phone video, we hear, for a few days at least, public outrage. Capital punishment must take place behind closed doors, in secret, with only a few witnesses to testify to its reality. For many people, any execution indicts the process. For a great many people, execution stands outside any discussion of aesthetics. We may believe in the process, we may think that Saddam received a fair trial, but an abhorrence of the result impeaches the entire process. We must believe in the meting out of justice every step of the way, from beginning to end, from the selection of the jury to the uttering of the final sentence. We might call punishment the result, but it merely stands at the end of a lengthy judicial process.

If justice and righteousness—the same word in the bible, in Hebrew, and in Greek—do rest on a deep sense of proportionality, we might expect them, then, to operate within a reasonable human scale, or at least to make maximal sense in a human context. The Twin Towers, imposing themselves high over the New York skyline, were bound to “attract” trouble. (Recall the anger that Susan Sontag evoked by pointing this out early on in the New Yorker magazine.) In our own anger, we show that we mean business—No Mister Nice Guy—by raising the middle finger, the one out of scale with the others. We insist on its triumphal defiance, its ability to throw the hand out of all order, the middle finger towering over the folded ones. The Twin Towers, for some, symbolized the massive inequalities in American society that, to some extent, we export around the globe.

Proportionality, and thus a sense of justice, informs every major medieval building and virtually every medieval painting. That is why, in great part, medieval churches and cathedrals have little to do with design and everything to do with numbers—with progression, order, proportion, and ratio. Medievals conceived of beauty in a much different way from us contemporary folks. In their world, Pythagoras and not Frank Lloyd Wright reigns as king. Even in twelfth-century poetry, the regular beat of a romance, say, reveals the harmony of God’s plan in the cosmos—His blueprint. Architecture—the arke techne—the highest of the medieval arts, brings the Master Mason close, very close to God, for he makes concrete—real and tangible—the Divine ordo, God’s orderly creation, which, like Aristotle’s description of justice, radiates out in all four directions at once.

At Chartres, or in a thousand other, less magnificent churches and cathedrals, whether Gothic or Renaissance in style, worshippers enter into a building that has been filled with God’s righteousness--each church a house of justice, each service a collective dream in right behavior. Over the tympanum of the church, in bold iconographic splendor, one sees the commanding figure of Christ. In his right hand, he holds a pair of scales. Making the transition from the outside world to the inner sanctum of God, the congregation comes face to face with the process of divine justice: Christ weighing each soul to determine its fate. After the late twelfth century, the iconography changes. Christ is now literate, and he enters names in a book. Like an accountant or a scribe or an arresting officer, He makes a reckoning of each life.

That same kind of justifiable righteousness through architecture, lingered, but in a much more faded way, into the early sixteenth century. At that moment, printers began referring to the margins of their pages, which resembled the columns of a building, as justified. And it still lurks in the phrase, “fair and square,” just as Francis Bacon intended, when he first uttered it at the beginning of the seventeenth century.

Like the children on my imagined playground, medieval peasants could articulate no sense of aesthetics and could explain no theories of art. They did, however, conceive of beauty as moral harmony. As several historians of the period, including Umberto Eco, have made clear, “when the Scholastics spoke about beauty they meant by this an attribute of God. The metaphysics of beauty and the theory of art were in no way related.” Ernst Curtius, one of the great interpreters of the Latin Middle Ages, makes the very cogent point that we place such an exaggerated value on art today because we have “lost the feeling for intelligible beauty which the neo-Platonists and the medievals possessed . . .. Here we are dealing with a type of beauty of which aesthetics knows nothing.”

Disorder, disharmony, whatever seems to us unbalanced, asymmetrical and awkward, cannot on its face be considered fair, and thus exists outside the realm of institutionalized justice. The sides of the police cars in Los Angeles proclaim “Law And Order”—the same sense of order that the judge gavels into being each time the bailiff commands, “order in the court,” each squad car a kind of justice-mobile. The word order comes directly out of that medieval idea of the Divine ordo, and flows into the religious orders, then into ordination itself, and still later into ordinances and ordnances (imposing and maintaining order through military muscle). To be ordinary, in the best sense, is to be balanced and stable. The idea is implicit whenever anyone shouts an order, or even, at a restaurant, orders a meal. The Captain orders his men into battle, and in so doing attempts to create some sense of stability out of the chaos that passes for their feelings. Crowds and demonstrations, by definition, are unruly and thus out of order, or disorderly. Machines, too, and even public restrooms, can be out of order. In Robert’s Rules of Order, Major Robert hoped to bring more than order to meetings. Above all, he desired fairness through inclusion.

So the kid on the playground who feels cheated wants his fair share: he wants the situation righted, he wants inclusion. But we know that, after initially feeling short-changed, very few can ever wind up with his or her “fair share.” Escalation surely ensues. There is revenge—blind revenge—which is to say punishment out of proportion: all hell broken loose. Revenge, however, is not supposed to be blind. Only justice—Justice and Tiresias, the Theban seer—gain insight through blindness. Even though the highest level of understanding—in rank order of the senses—is, I think, sight, as in, “Oh, yes, I see what you are saying,” justice harkens after insight. But there is more here than meets the eye.

Justice voluntarily binds her eyes; but why does she, the goddess who holds society together at its very base, need to wear a blindfold? We answer that justice must remain forever blind to issues of status and birthright. She must hear only the details, the facts of this or that particular case—what rules her is text and not context. For her, aesthetics matter not at all: one needs eyes to see beauty—or, for that matter, ugliness. Justice listens. Justice smells. She cannot even feel, her hands occupied with holding a pair of scales. For her, exact measurement—a leveling—trumps everything else. An iota, a crumb more or less, sets the pans a kilter. She listens, she judges, she utters her sentence. Nothing more. Nothing less. (Notice that punishment is left to someone else, another round of jury deliberations, and another look by a judge. The courtroom holds its collective breath: they do not know what to expect. But shouldn’t they? If we believe in the process, then should we not know precisely the outcome—even if fate lies in the hands of twelve angry men?)

In front of any courthouse, even in the smallest burghs in America, the figure of Justice towers, like Winged Victory, over every citizen who makes his or her way up the front steps. But why has no one situated Themis where she’s most needed, in the center of any city’s slums, smack in the heart, say, of South Central in Los Angeles. Local authorities might even inscribe her base with a sonnet similar to the one that Emma Lazarus wrote and that wound up on the Statue of Liberty. Liberty, of course, wears no blindfold, and, without a pair of scales, cares not a whit, it would seem, about equality. Emma Lazarus, in fact, refused to call the statue Liberty, preferring instead, The Mother of Exiles, and made that mother speak these lines from her poem “The New Colossus”: “Give me your tired, your poor, /your huddled masses yearning to breathe free.” Liberty accepts each and every immigrant soul, without knowing anything about circumstances. All she needs is a torch, not so she can see the people, but so they can see her.

Perhaps justice has already been duly served in the inner city. Perhaps that’s what “Divine Justice” means, that in some Calvinist scheme, God has already decided the winners and losers in society, and so take it or leave it. In a society dominated by the amassing of more and more capital, the players sort themselves out, in what those on top would describe as a kind of distributive justice. (One might wonder here if capitalism prompts its own form of justice. Or, does the relentless pursuit of more and more money simply distort all forms of justice and make it defunct?) Look, look at how ugly those inner cities have become—surely that clot of poor souls has done something very wrong. So ragged and funky do they look. This is certainly different from what Aristotle meant, in the Nicomachean Ethics, by distributive justice, that is justice that radiates out in all four directions in equal proportions.

Escalation knows no aesthetic. Escalation goes beyond boundaries, breaks all rules of proportion. Justice, if it does exist, must be tempered and restrained. Is an “eye for an eye” ever justice? It sounds balanced and ordered and oh so biblical—tit for tat—but is that what we mean by justice? Gandhi says that such a form of justice ultimately leaves everyone blind. How ironic—does he mean that retributive justice turns everyone, unwittingly, into an embodiment of justice itself? If so, then anyone who has lost a symbolic eye in punishment for taking one, must know the truth and refuse to ever keep the flame of revenge burning. Maybe only then, when everyone is eyeless, can we ever hope for universal justice. What an extra-ordinary fate.

But we should keep in mind that Justice is not technically blind, at least not in the common way we use the term. Rather, by placing a bandage over her eyes, she has willingly deprived herself of sight. To make her decisions, these days, one would think Justice needs to have her eyes wide open, to see the condition of the people brought before her: the playing field, as they say, is not always on the level. And so I find it interesting that Justice only begins to wrap her eyes some time in the late seventeenth century. On the dome of the Old Bailey in London, 1673, for instance, Justice looks over her minions with eyes wide open. Likewise, on the west wall of the United States Supreme Court, visitors can see one of the oldest works of art in Washington: a plaster relief, done in 1817 by the artist Carlo Franzoni, of the statue of Justice. She wears no blindfold. The website for the US Supreme Court makes this quirky observation: some sixteenth-century English satirists added the blindfold to most statues of Justice, hoping to attack a corrupt regime that they claimed was protected by a judiciary, either tolerant or ignorant of contemporary legal abuses. In America, then, justice was not only blind. And that is something to think about.

The sun is setting, the shadows growing longer and longer. I must now return to the playground, for Bobby and Tommy are waiting to go home. You, too, I am sure, are tired and need to come to the end of this essay. As Montaigne tells us, essays have little shape, but as I have an aesthetic in mind, let me try to justify my own ramblings. It is here, in this country, Greece, in the archaic period, where I first came across the idea of the aesthetics of justice. For my conclusion, I am indebted to Professor Bonnie MacLachlan and her discussion of the concept of charis in archaic poetry, in her superb book The Age of Grace.

As I understand the idea, charis roughly translates as grace or pleasure. At least in the poetry, charis refers to the disposition of a person to return pleasure to the person who first gave it. Charis involves reciprocity, a kind of gift exchange. Charis also involves the allotting by some authority of one’s due portion; and this belief led to the Greek notion of justice, or dike. The Greek cosmos, like human society, maintained its stability and order through the equilibrium produced by opposing forces. If one force or one person encroached on the allotted portion of another, restitution had to be made to restore balance or order. “Equality, the counterpoise of equals,” MacLachlan points out, “reflected a healthy community, a harmonious cosmos.”

So the playground now turns quiet. Tommy feels a bit chastened, Bobby slightly vindicated. The former fell a notch or two in stature, the latter went up a bit. Things are about as equal as they can get. Dike, I think, rather than Themis, governed the coach’s actions, more interested, as he was, in proportion than punishment, in restoration rather than rehabilitation. At any rate, Tommy and Bobby are now fast asleep, resting, peaceful, getting ready for another round, in the morning, on the court. They dream of sky hooks and monster jams over the rim. In dreams begin greatness. As for us, at our model symposium here on Paros, I can do no better than quote MacLachlan again: “Dike, the equilibrium produced by different, even opposing, forces . . . results in the calmness of the symposium . . . and characterizes a city at peace.”

Let it be so. Let us take that spirit of equality and calmness home with us.

(I found inspiration for this essay in Elaine Scarry’s On Beauty and Being Just.)

B.S.