Toward Humanistic Theories of Legal Justice
Cardozo Studies in Law and Literature, Vol. 10, p. 147, 1998
5 Pages Posted: 17 Jun 2011
Date Written: 1998
In an oft-quoted aside, Justice Holmes once remarked that when lawyers in his courtroom make appeal to justice, he stops listening: such appeals do nothing but signal that the lawyer has neither the facts nor law on his side, or worse, that he is ignorant of whatever law might be relevant. Holmes's remark has not gone unheeded. Holmes's legacy, in part, is precisely this lapse: we don't have, or teach, a guiding theory of legal justice, nor do we have, or teach, a family of competing theories of legal justice, that might inform our work in law, at least as that work continues to focus on the work of courts. Nor do we have, consequently, a specifically humanistic conception of legal justice that might move adjudication in a direction conducive to the well-being and just social arrangements of the species.
There are, of course, two striking exceptions to this general claim. Working in part off a Holmesian legacy, Richard Posner and other like-minded legal economists have persuaded a sizeable percentage of two generations of lawyers that justice is wealth and wealth justice, and that this is basically all they need to know: with justice so defined, and a few analytic tools, virtually any legal problem that may confront a common law judge yields a more or less definite and wealth-maximizing solution.' The judge interested in pursuing justice, and the lawyer interested in practicing it, need only seek the wealth-maximizing resolution of any legal dilemma. And, Ronald Dworkin, around the same period of time convinced a sizeable percentage of the same group of lawyers that justice is not essentially distinct from law itself, at least when read in the best possible light. Justice is law, one might say, and law justice, and that is all we need to know. The judge interested in pursuing justice, and the lawyer interested in practicing it, should seek and will find it in the law itself -- there is no meaningful moral norm, independent of the legal materials, to which he or she might turn for guidance.
There are familiar problems with both the Dworkinian and Posnerian reduction of justice to law on the one hand and wealth on the other: a law, a legal system, a legal pronouncement, a statute or a constitution, might be terribly unjust, in which case the romantic Dworkinian identification of justice with law generously understood will do little but blind us to state-sponsored injustice, and the simple pronouncement to maximize wealth, although it unquestionably quenches a thirst for certainty, might frustrate rather than serve the ends of a just order, in which case justice surely cannot be equated with wealth. I do not wish to rehearse or expand these objections here. All I want to stress is the simple point that these highly problematic, counter-intuitive, and, in some cases, seemingly cruel understandings are the only theories of legal justice -- the justice that courts and lawyers and judges are committed to pursue -- that have emerged, so to speak, from a point of view internal to the profession itself, and that accordingly might serve the needs of the profession. They have dominated the discussion to the extent that they have only because nature abhors a vacuum. Nevertheless, for all their power, and even given the dearth of alternatives, the Dworkinian and Posnerian understandings of justice, stated in their starkest and truest terms, have failed to persuade all but a few of us.
Keywords: Justice Holmes, Richard Posner, Ronald Dwarkin, theory of legal justice, law and economics, humanism, law and literature, Marianne Constable, Richard Weisberg
JEL Classification: K00
Suggested Citation: Suggested Citation