Talk about books

A fortnightly newsletter by Art Kavanagh about things I’ve read

No. 20; 18 August 2021

Your favourite author’s ambivalence about justice

Attempting to equate the incommensurable

I’ve taken the title of this issue of the newsletter from my doctoral thesis, in which I argued that Andrew Marvell’s writing exhibits an ambivalence about justice. The external examiner pointed out that to ascribe ambivalence to Marvell wasn’t to say anything new. I realized that, while I recognize that there is a great deal of ambiguity in Marvell, I don’t generally think of that ambiguity as being a reflection of ambivalence: on many subjects Marvell had firm and definite views, even if he might be circumspect about expressing them unequivocally. But not about justice.

I could see there was a problem with my thesis but I conceived it differently from the external examiner. When writing my introduction and conclusion, I’d convinced myself that the ambivalence about justice that I’d found in Marvell was close to a universal condition. What was unusual about Marvell was that he drew attention to the ambivalence, and outlined its contours, more vividly and elegantly than most.

By “ambivalence” in this context, I don’t mean simple indecision or an inability to make up one’s mind, but rather an unwavering belief that two or more mutually contradictory propositions are true. Justice is unattainable and it is imperative that it be attained. I believe that most of us hold views something like that, and that Marvell did too.

It’s surprisingly difficult to define what justice means. I’m not going to try to arrive at a definition here but I’ll explain below why I think one may not be necessary. According to J S Mill, there seems to be an almost universal instinct for justice. He wrote:

The powerful sentiment, and apparently clear perception, which that word recalls with a rapidity and certainty resembling an instinct, have seemed to the majority of thinkers to point to an inherent quality in things; to show that the Just must have an existence in Nature as something absolute … (Justice, ed. Alan Ryan, 1993, p. 56)

However, Mill can see that the almost universal instinct for a principle of justice conceals a wide range of differing opinions as to what that principle requires in any particular case:

Not only have different nations and individuals different notions of justice, but, in the mind of one and the same individual, justice is not some one rule, principle, or maxim, but many, which do not always coincide in their dictates, and in choosing between which, he is guided either by some extraneous standard, or by his own personal predilections. (Ryan, p. 64)

Mill shows that perfectly reasonable and persuasive claims about, for example, setting the appropriate punishment for an offence, or the relative merits of a progressive and a flat-rate taxation system, can lead to directly opposing conclusions, the proponents of each of which may be quite sure that justice is on their side. So, while virtually everybody feels strongly that justice (in the abstract) is of the highest importance, there is often fierce disagreement as to how this translates into concrete terms.

Mill does not find this conundrum difficult to resolve. Faced with conflicting claims of justice, each of equal validity, the person charged with making a decision must choose the most expedient. But how are we to know that the claims are of equal validity? If they’re not evenly balanced, presumably Mill would agree that the weightier should prevail, regardless of expedience. We don’t seem to have any yardstick by which we can make a reliable judgment. Since judgment is at the heart of justice, this absence seems perplexing.

One of the problems with justice results from what I describe as friction. The machinery of justice is not perfectly efficient: being concerned in large part with commutative justice, it can be thought of as performing a kind of conversion and, as with all such machinery, not everything that goes into the process is incorporated without loss in the product that comes out at the other end. The most visible forms that friction takes are those of delay and cost.

In spite of the obstacles, the court lists are full of people suing negligent surgeons, dangerous drivers and employers who have failed to put in place a “safe system of work”. Let us consider only those cases where the victim has died, and compensation is being sought accordingly. Such cases will often be pursued even though the cost to the bereaved family members is high: in time, anxiety, forgone opportunities (to “get on with their lives”) and even in money. This is so even though nobody who can afford to make provision for his or her dependants is going to take into account the mere possibility that his or her departure from the world, when it eventually comes, will be occasioned by actionable negligence. In other words, a deceased person will either have been adequately insured or not, and in the latter case his or her dependants are likely to be less well able to afford to pursue an action for damages to the very end, although they will be in greater need of compensation.

Why are people prepared to pay such a high price for just the possibility of justice? One answer might be found in evolutionary biology. In his book The Language Instinct (1994), Steven Pinker argues, largely on the basis of Chomskyan linguistics, that humans are born with an extraordinary capacity for learning spoken language. Chomsky’s Universal Grammar seems to be already wired in, while young children have a remarkable ability to pick up the vocabulary of whatever language is spoken by those around them. Pinker (departing from Chomsky) argues that this instinct can only have evolved by natural selection. He describes it as a “module” that equips humans for evolutionary success, and speculates as to what other modules might have evolved in similar ways. In his list of the kinds of module one might expect to have evolved, we find “13. Justice: sense of rights, obligations and deserts, including the emotions of anger and revenge”.

In a later book, The Blank Slate (2002), Pinker expands on this suggestion, offering an explanation of the evolutionary pressures that might have led to the development of such a module: “People who are emotionally driven to retaliate against those who cross them, even at a cost to themselves, are more credible adversaries and less likely to be exploited” (The Blank Slate, p. 182), and therefore better adapted to evolutionary success. On this view, we have an innate propensity to refuse to cut our losses when we feel we have been wronged but to ensure that the wrongdoer pays, even if he or she will never pay enough to compensate us for the additional effort of pursuing them.

In his longest discussion of the topic, Pinker draws on the work of Robert Trivers on reciprocal altruism to argue that the sense of justice might more generally be called a sense of fairness, and probably evolved as an important concomitant to human altruism. The evolution of altruism poses interesting questions for evolutionary biology, questions that have received a lot of attention since Trivers first published on the subject in 1971.

It is clear that, when it does evolve, altruism is vulnerable to cheaters: that is, to those who take out more that they put in. If cheaters are not curbed, they will gain a clear evolutionary advantage and overrun the entire population, so that altruism will be selected out. According to Pinker (again drawing on Trivers), ever more sophisticated mechanisms of cheating and cheater-detection leap-frog each other from generation to generation (How the Mind Works, 1988, pp. 402–05).

More subtle means of cheating mean that the general population has to get better at identifying selfish behaviour, which leads to the cheaters’ need to become yet more subtle. So, over the course of human evolution, people have become very good at spotting unfairness and have developed a propensity to feel strongly that it ought to be deterred and punished. Our acute sense of justice is, on Pinker’s hypothesis, an evolutionary adaptation.

This hypothesis may help to account for the coexistence of a powerful “sentiment” as to the fundamental importance of justice with an evident reluctance to define it except in wide, abstract terms (e.g. “to give everybody his or her due”) that leave plenty of room for dispute as to what is required in any given case. If we can conceive (hypothetically) of “justice” as a quality whose presence or absence we are innately equipped to recognize, then our lack of a detailed and comprehensive description of what it entails may come to seem less puzzling.

It may be, though, that this innate recognition will work better if our “sense of justice” incorporates some degree of ambivalence. As humans, we find it necessary to attempt to reconcile our instincts with our observation, experience and interpretation of the world. These last three provide plenty of evidence that justice is generally elusive: awards of compensation that bear no relation to the defendant’s degree of fault, and only a notional one to the damage suffered by the plaintiff, equivalent sentences for supposedly similar offenders whose actual circumstances differ wildly, mistaken witnesses and high legal costs. These factors, among many others, make it almost inevitable that comparable cases will not always be dealt with in the same way.

On the one hand, scepticism about justice would seem to be inevitable, given the evident imperfectability of systems for the administration of justice, while the strength of the countervailing “sense of justice” may be an evolutionary necessity without which reciprocal altruism (and thus human society) would be impossible. If this is so, then ambivalence about justice would seem to be unavoidable. That’s how it’s possible that, one moment, we knowingly opine that the central figures in a financial scandal will never be punished, that is simply how the world works, while the next we vociferously insist that our neighbours should move their fence back to the boundary line and stop encroaching on our garden, otherwise we shall be happy to take them to court.

This ambivalence affects almost everybody, including most writers, so it probably manifests itself to some extent in your favourite writer’s work. It’s certainly to be found, for example, in Scott Turow’s legal mysteries, about which I wrote recently, and where I first noticed it. It appears somewhat differently in the fiction of Kate Atkinson, whose Jackson Brodie series will be the subject of the next issue, in two weeks’ time.

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Originally posted on Substack (Talk about books), 18–Aug-2021.