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Introduction: Justice and Commensurability
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Justice and Commensurability

A bitter dispute has broken out between Aeschylus and Euripides, for dead poets, it appears, are not immune from those jealousies and rivalries that plague their living counterparts. As Aristophanes recounts this episode in his farcical play The Frogs , what occasions the dispute is a certain dining privilege—a chair by Pluto's side—a privilege long enjoyed by Aeschylus, but which Euripides, new arrival in the underworld, now fancies his due. And so the battle lines are drawn and the poets stand before Dionysus, taunting each other and hacking away at each other's poetry until, after some lapse of time, an enormous pair of scales is brought out to settle the dispute. "Poetry will be measured by the pound, . . . weighed in scales like so much butcher's meat,"[1] Aristophanes tells us, and the heavier one will be declared the winner. Three times the poets go to the scales, throwing in their respective lines, and each time Aeschylus wins hands down, for, unlike Euripides, who speaks only of "light and feather-brained" things (such as persuasion), Aeschylus has wisely gone in for the heavy topics. In one line, for instance, "Two chariots and two corpses he heaved in. / A hundred gypsies couldn't hoist them."[2] It is not much of a contest, after all.

The Frogs is, of course, a parody of justice, a parody of the way disputes are settled, conflicting claims resolved, a binding verdict arrived at. And yet the object of its parody, or at least the material emblem of it, is perhaps more organic than we might think to a conception of justice that is not meant to be parodic, a conception that takes itself, in all seriousness, as a normative ideal, the transcendent end of an adjudicative process. The conceit of the scales, I suggest, is central to our idea of justice, central to it in a rather fundamental sense, not only as a figure of speech but also as a figure of thought. For it is this conceit, with its attendant assumptions about the generalizability, proportionality, and commensurability of the world, that under-


writes the self-image of justice as a supreme instance of adequation, a "fitness" at once immanent and without residue, one that perfectly matches burdens and benefits, action and reaction, resolving all conflicting terms into a weighable equivalence. The language of justice, I want to argue, is first and foremost a set of cognitive postulates, a set of grammatical propositions describing the world and, not infrequently, dissolving the world in the very act of describing it, converting it into a common measure, a common evaluative currency, grounding the very possibility for adjudication on the possibility of such a currency. The language of justice is thus a language of formal universals, one that translates warring particulars into commensurate ratios, that takes stock of the world and assigns due weight to disparate things. Such a language, I argue, is most graphically expressed by that adjudicative instrument long taken to be its emblem: the scales.

Aristophanes, then, was both more and less parodic than he might first appear. Less, because the scales of justice are actually serious business, and more, because what is being ridiculed here is not so much a particularly absurd instance of judgment (though this one is certainly memorable) as the ground of judgment itself. That ground, I have tried to suggest, is something like a premise of commensurability, a premise about the weighable equivalences of the world and about the solvability of conflict on that basis. The search for justice, in that sense, is very much an exercise in abstraction, and perhaps an exercise in reduction as well, stripping away apparent differences to reveal an underlying order, an order intelligible, in the long run, perhaps only in quantitative terms. Aristophanes was, in any case, not the only one to wonder about the reductive grounding of justice. This was the uneasy sense as well of none other than Aristotle, who, in the much-discussed Book 5 of the Nicomachean Ethics , would give an eminently unparodic (though hardly untroubled) account of the numerical equivalences underwriting the idea of justice:

The just, then, is a species of the proportionate (proportion being not a property only of the kind of number which consists of abstract units, but of number in general). For proportion is equality of ratios, . . . and the unjust is what violates the proportion.[3]

Distinguishing between different forms of justice, Aristotle goes on to relate them to different forms of proportionality. Distributive jus-


tice, for example, should be conceived "in accordance with geometrical proportion" (for the just here "involves at least four terms," that is, at least two recipients of distribution in respective proportion to two distributive shares). Rectificatory justice, by contrast, should be conceived "in accordance with arithmetical proportion" (for here, "injustice being an inequality" arising from the fact that "one has received and the other has inflicted a wound," the task of the judge is simply "to equalize things by means of the penalty, . . . subtracting from that which has more, and add[ing] to that which has less"). And, finally, when it comes to justice in exchange, where "all things that are exchanged must be somehow comparable," Aristotle points to money as a necessary (if regrettable) instrument, for "money, acting as a measure, makes goods commensurate and equates them."[4]

As an epistemology which subjects disparate terms to a uniform reckoning—an epistemology which translates the tongues of Babel into a common language of ratios and equivalences—justice would seem to be the most elementary as well as most encompassing of virtues, one whose jurisdiction is not only coextensive with the world but in some sense constitutive of the world, one that not only covers all agents and all events but "weighs" each in turn, resolving each of them into a common measure of right and wrong, merit and desert, obligation and entitlement. Justice is thus often thought of as "complete virtue," "virtue entire," and "proverbially 'in justice is every virtue comprehended.'"[5] Still—and the point is worth emphasizing—that comprehensive justice does not seem to be Aristotle's own working definition. Indeed, in marked contrast to the breadth of the proverbial claim, his own understanding of justice turns out to be surprisingly modest, carrying with it always a definitional disclaimer, a conscious shying away from any presumed totality. "But at all events what we are investigating is the justice which is a part of virtue," he says, and "the justice, then, which answers to the whole of virtue . . . we may leave on one side."[6] The justice that concerns Aristotle is neither equatable with nor exhaustive of all imaginable human goodness; its operative limit—its inability to encompass the full range of experience, the full range of the ethically desirable—suggests that its domain is to be imagined not as one of adequacy but as one of necessary supplementarity: a domain by definition nonabsolute, incomplete.[7]

It is this scrupulous restraint on Aristotle's part—his refusal to


"cover" the field, as it were—that is progressively eroded in the ascendancy of justice as a philosophical concept,[8] an ascendancy most powerfully shaped by Kant and most powerfully exemplified, in our own time, by John Rawls. "Justice is the first virtue of social institutions, as truth is of systems of thought," Rawls writes in the opening paragraphs of A Theory of Justice (1971), a book regarded by many as a twentieth-century counterpart to the Nicomachean Ethics . Justice, for Rawls, is analogous to truth not only because it presides as an absolute ideal but also because it exists as an ontological given. Whether or not it is actually achieved, it will always be imagined as having an objective reality, a reality coincidental with the immanent relations among things and discoverable through a rational process of deliberation. Indeed, Rawls sees justice as nothing less than the axiomatic expression of human reason itself: it is "the choice which rational men would make" when their reason is given free rein, uncompromised by particular interests. Understood as the ideal endpoint of reason, justice is thus the first virtue not only of all social institutions but of all "human activities," embraced by all "free and rational persons," and underwriting "the fundamental terms of their association."[9]

This expansive claim made on behalf of justice is not unique to philosophers. In our commonsensical understanding as well we tend to see justice as a virtue at once transcendent and intrinsic, foundational and all-encompassing, a virtue descriptively answering to the shape of the world and expressively answering to the scope of human reason. We worry, perhaps, about the local implementations of justice; but the idea itself—its ethical primacy and its descriptive adequacy—is almost never questioned.[10] Justice, as our admiring idiom attests, is something that will eventually (and sometimes instantly) "prevail," not as a construct but as a kind of indwelling truth: an ethical order objectively immanent in, and therefore objectively deducible from, any given conflictual situation and adjudicative context. As John Stuart Mill says, "the powerful sentiment" of justice and the "apparently clear perception which that word recalls" are such as to make it "resembl[e] an instinct." At once reflexive of the world and incarnate in what it reflects, the concept carries with it an aura of the axiomatic, a kind of ontological coincidence with the world, so much so that "to the majority of thinkers" it seems almost to be "an inherent quality in things," as if "the Just must have an existence in Nature as something absolute."[11]


The broad ambition of this book is to unsettle this axiomatic conception of justice: to make it less immanent, less exhaustive, less self-evident both in its ethical primacy and in its jurisdictional scope. Justice, I want to argue, is one particular virtue, one virtue among others. And, rather than invoking it as a sovereign ideal, we should perhaps grant it no more than a particular claim, a conditional claim, on our allegiance. This nonfoundational character of justice is worth emphasizing, for its language—a language whose charge is to disentangle the world, to resolve its conflicts into a commensurate order—is a language that abstracts as much as it translates and omits as much as it abstracts. Focusing, then, on "commensurability" as a central premise (and a central embarrassment) within the language of justice, I call attention to the porousness of that language, a porousness especially noticeable and especially worrisome when seen against the stubborn densities of human experience. What issues from that linguistic porousness, I would also argue, is a category of "residues": residues unsubsumed and unresolved by any order of the commensurate, residues that introduce a lingering question, if nothing else, into any program of justice, whether corrective, distributive, compensatory, or revolutionary.

I am encouraged in this immodest undertaking by Mill's suggestion that "the feeling of justice might be a peculiar instinct, and might yet require, like our other instincts, to be controlled and enlightened by a higher reason."[12] For Mill, that "higher reason" answers to a very definite name, the name of social utility. But without embracing his particular advocacies, we might benefit, nonetheless, both from his skepticism about the absolute claims of justice and from his attempt to circumscribe its domain, to emphasize its incomplete summation of human goodness. In this context, it is especially helpful to be reminded that, etymologically as well as historically, justice is a derivative concept, given primacy only under the rule of law, only with the legal mediation of human relations. It is the "most legal of the virtues."[13] "Justum ," Mill tells us, "is a form of jussum , that which has been ordered.  image comes directly from  image, a suit of law. Recht , from which came right and righteous , is synonymous with law," and "la justice , in French, is the established term for judicature," so that there can "be no doubt that the idée mère , the primitive element, in the formation of the notion of justice, was conformity to law."[14] Given this genetic history, justice is thus centrally predicated


on the notions of rewardability and punishability, the twin operative tenets of the law. And it is predicated, above all, on the notion of "adequate repayment," which in practice (and perhaps in spirit as well) is how the law dispenses both punishment and reward:

No rule on the subject recommends itself so strongly to the primitive and spontaneous sentiment of justice as the lex talionis , an eye for an eye and a tooth for a tooth, . . . and when retribution accidentally falls on an offender in that precise shape, the general feeling of satisfaction evinced, bears witness how natural is the sentiment to which this re-payment in kind is acceptable. . . . The principle, therefore, of giving to each what they deserve, that is, good for good as well as evil for evil, is not only included within the idea of Justice as we have defined it, but is a proper object of that intensity of sentiment, which places the Just, in human estimation, above the simply Expedient.[15]

Extrapolating further from Mill, we might say that justice is ultimately a form of reification: the reification of commensurability itself. The commensurate order—good for good and evil for evil—is taken, that is, to be something of a natural order, an objective relation between the two terms in question, as if one good could equal another good in the way that one eye equals another eye, or one evil could equal another evil in the way that one tooth equals another tooth. It is this dream of objective adequation which makes the concept of justice intelligible in the first place: intelligible not only in retributive justice, where we yearn for a punishment equal to the crime, and not only in compensatory justice, where we yearn for a redress equal to the injury, but also, I might add, in distributive justice, where we yearn for a benefit equal to the desert.

Against this dream of objective adequation—this dream that the world can be resolved into matching terms, fully recuperative of each other or fully corrective to each other—I want to make a contrary claim on behalf of the incommensurate, understood both as the operative conditions and possibly as the operative limits of justice. What concerns me is the abiding presence—the desolation as well as the consolation—of what remains unredressed, unrecovered, noncorresponding. The phenomenon I have in mind is something like that of being "lost in translation," a phenomenon at work in any adjudicative process, any attempt to unify two disparate terms, to make them conform to a principle of equivalence. This skepticism about the adequacy of any commensurate order has been argued most lucidly by


Isaiah Berlin and Bernard Williams, among others.[16] There is no translation without loss, they suggest, nor conflict-resolution without residue. Beginning with this crucial insight, this book takes as its subject the losses as well as the residues occasioned by the exercise of justice, surely the oldest, most ambitious, and most comprehensive translation project in human history and one that, like human history itself, perhaps derives its intelligibility as much from what it fails to register as from what it does register. I want to foreground the epistemological violence entailed in this process as well as those moments when this process is palpably tangential to the world, palpably impoverishing of the world, moments when its descriptive thinness and experiential harshness cry out for supplements.

This critique of justice is not, I am happy to say, solely or idiosyncratically my own. Here I want to acknowledge two domains of discourse in which this critique has been most energetically argued: political philosophy and feminist theory. I have in mind Michael Sandel's Liberalism and the Limits of Justice and Carol Gilligan's In a Different Voice , both published in 1982 and both (emphatically in the case of Sandel and obliquely in the case of Gilligan) issuing in a challenge to the image of justice as a virtue sufficient unto itself. Sandel argues that justice, absolute and underived as it might seem, is actually predicated on two prior constructs—about the subject of justice, and about the circumstances of justice—neither of which can be said to be empirically exhaustive or epistemologically foundational. And so, against the dream of rational adequation in Rawls, and against the dream of rational adequation within the entire Kantian tradition, Sandel argues that justice is a necessarily limited concept, not because it can never be fully realized in practice but because "the limits reside in the ideal itself."[17] Gilligan, meanwhile, from the perspective of feminist developmental theory, posits two contrasting ethics—what she calls an ethic of justice and an ethic of care—the former characteristic of men and espousing a "formal logic of fairness," the latter characteristic of women and embracing a "cumulative knowledge of human relationships." Justice, for Gilligan, is literally an incomplete virtue, occupying no more than one-half of the ethical field. Its abstract impulse toward "balancing claims," she argues, must be tempered by a contextual awareness of responsibility "as given rather than as freely contracted."[18]

Indebted to both Sandel and Gilligan, my study also represents, I


hope, a historicized departure from both. Unlike Gilligan, I am reluctant to see justice as a rigidly gendered phenomenon, a rigidly locatable axis of differentiation between men and women. I am reluctant, in particular, to accept her model of causality, one elaborated strictly within the domain of object relations and glossing the concept of justice as, in effect, a function of male ego psychology. Against this unduly restricted (and unduly polarized) account, I want to experiment with an analytic frame of somewhat broader scope and perhaps less determinate boundaries. The concept of justice is historically interesting, I want to suggest, not because it crystallizes the psychic opposition between men and women but because the concept itself has never been without a zone of problematic residuum, a zone marked above all by the nontransparent relation between the various descriptive languages enlisted on its behalf. What especially intrigues me, then, is the "uneven primacy" of justice—the varying breadth of its claims and the varying fitness of its resolutions—a phenomenon analyzable not only across time but also across the cultural landscape at any given moment; for the differentiation among cultural domains must bring into play, I think, a significant unevenness among their languages of justice.[19] This book is a history of that unevenness. It is a history of two primary languages of justice, law and philosophy (as instanced by the changing jurisdiction of criminal law, or the changing definitions of torts, or the ascendancy of rights as an ethical norm). And it is a history, as well, of an alternative language, the language of literature: one that dispenses justice almost as a generic requisite and brings to that dispensation almost a generic question mark.

And here, departing not only from Gilligan but also from Sandel, I examine the concept of justice not as a unitary given (not as the settled expression of male psychology, in the case of Gilligan, or as the settled foundation of Western philosophy, in the case of Sandel), but as a concept more or less migratory and more or less mercurial in its migrations. Absolute and categoric in philosophy, negotiable and assignable in law, wayward and unsatisfactory in literature, justice, dispensed in different operative theaters, seems to carry different causal circumferences, different modes of evidence, and to yield up different styles of knowledge as well as different descriptive textures of the world. These conflicting images of justice call into question the self-evidence of that concept as well as its claim to being the axiomatic expression of human reason.


Indeed, it is the axiomatic nature of "reason" itself, its transcendent unity and its categorical imperative, that this book hopes in part to complicate, in part to contest. Putting aside its received image—as an objective given, unwavering in its trajectory and unvarious in its expression—I want to experiment with a nonintegral conception of reason, theorizing it, that is, as a field of uneven definition: more heterogeneous, more responsive to contrary plausibilities, and therefore less harmonizing, less effective as a foundational guarantee. Imagined as the ground for disagreement rather than the ground of commensurability,[20] human reason might turn out to underwrite not a unified propositional universe but many domains of thought, many styles of reasoning—overlapping to some degree, but not necessarily reconcilable with one another and certainly not collapsible into one another. These cognitive domains make up so many languages, so many inflecting media, for the idea of justice. This book is a tribute to their multiple inflections. Almost by necessity, then, this is a synthetic project, ranging incautiously but perhaps unavoidably from political theory to legal history, cognitive linguistics, even theology, and shuttling back and forth between Aristotle and Augustine, Kant and Marx, Locke and Luther, Noam Chomsky and John Rawls.

Alongside these figures, and in emphatic challenge to some of them, I will also be looking at a rather diverse group of nineteenth-century American authors—Herman Melville and Rebecca Harding Davis, Jonathan Edwards and Susan Warner, Walt Whitman, James Fenimore Cooper, William Dean Howells, Kate Chopin—although this is not, strictly speaking, an attempt to redesign the shape of American literary history. It is, rather, a series of intense (and sometimes counterintuitive) engagements with a group of texts that, to my mind, offer some of the most vivid demonstrations not only of the historical meanings of justice but also of its historically problematic relation to the densities and textures of human lives. It is among these literary texts, I argue, that we can encounter the idea of justice not as a formal universal, and not as an objective relation among things, but as a provisional dictate, an incomplete dictate, haunted always by what it fails to encompass. Literary justice is a point of commensurability rationally arrived at, but it is simultaneously registered as a loss, a strain, a necessary abstraction that necessarily does violence to what it abstracts. Such an image of justice, sedimented out of the cognitive conundrums of a different tradition and carrying with it a different vocabulary, a different language with which to describe the world and


what matters in that world, must stand as a supplement and a corrective to any legal or philosophical propositions.

Rather than being a formal logic, justice in these literary texts is a phenomenon whose lineaments are traceable in the fate of some specific characters, generating not only an ever-widening horizon of meaning but also an ever-widening spectrum of queries. From the democratic personhood in "Song of Myself" to the economic personhood in Life in the Iron Mills , from the punitive fervor of The Deerslayer to the compensatory fervor of The Rise of Silas Lapham , from the luck-driven universe of The Wide, Wide World to the rights-driven universe of The Awakening , the problem of justice is given a face and a voice, a density of feature that plays havoc with any uniform scale of measurement and brings to every act of judicial weighing the shadow of an unweighable residue. In the persistence of that residue, in the sense of mismatch, the sense of shortfall, that burdens the endings of these texts, we have the most eloquent dissent from that canon of rational adequation so blandly maintained in philosophy and law. Overlapping with both but reducible to neither, justice as a literary dream (and often as a literary nightmare) remains a live issue not for what it manages to put to rest, but for what it fails to.

We might think of literature, then, as the textualization of justice, the transposition of its clean abstractions into the messiness of representation. We might think of it, as well, as the historicization of justice, the transposition of a universal language into a historical semantics: a language given meaning by many particular contexts, saturated with the nuances and inflections of its many usages. Such a semantics of justice can serve no single purpose, even as it can tend toward no unified end. Literature, in this sense, might be said to be the very domain of the incommensurate, the very domain of the nonintegral. In its signal failure to make good its logic, to affirm the adequacy of any rational order, it denies us the promise extended by law and philosophy both. But for that very reason it is a testing ground no jurist or philosopher can afford to ignore. For if the image of justice is here rendered back to us, most often with a shock of recognition, at some rare moments, moments miraculous but not necessarily dismissible, it might also come back to us with a difference, a difference that is both less and more than the dream of objective adequation which justice is: less out of forbearance, and more out of hope.


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Introduction: Justice and Commensurability
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