LETTER NO. 3: ON JUSTICE
by Chris R. Morgan
In figuring out how I was going to write to you about justice, I came first to the problem of whether or not I was qualified to discuss it at all. Even though you invited the subject, there’s something kind of precarious about having a lawyer-in training as one’s audience. It’s like being invited to speak about death at a corpse convention. But having taken little time to get over that, my conclusion was twofold.
First was my realization that, despite our differing backgrounds and divergent careers, our main concerns come down to wrestling with language. What is the practice of law but a highly specialized art of reading? And what is the teaching of law but the teaching of an alternate English? For my part I can go only so far in being able to read it, but I can take in just enough to understand that a confounding concept like emanating penumbras has far-reaching implications. And so I was sent into something of a fugue state trying to figure out what justice means really. Which led me to my next conclusion.
Of course I can talk about justice because I am human. Indeed, lay people seem uniquely qualified to not only talk about justice compared to legal practitioners at whatever level, but to set its boundaries. Because I see justice as a concept created entirely by lay people. Though it is less of a precise word than it is a vaguely desired outcome, the base requirement of satisfaction between members of a society, and the reason for society existing at all. It is a resource lawyers are paid to mine, and what judges are paid—and worshipped—to value. Like Potter Stewart and his porn, we know justice when we see it.
So then maybe it is better to go about this by teasing out what I think is just than what justice may or may not mean. In fact when thinking about this I remembered our conversations from a year ago relating to Making a Murderer. I had many conversations about that show at the time, but yours stood out to me, not because of how your law school experiences may have shaped your thinking, but because I was learning what I took to be the morals that, at least in part (I think, please correct if I’m wrong), compelled you to take law school up. And they were morals to which I could relate.
For the longest time I had difficulty admitting that, at bottom, my thinking was primarily moral. Because I had grown up in a world wherein principled thinking was a hindrance more often than not. This is not to say that there was a total absence of rightness, but it felt ever contingent on favorable conditions. Pure principle was something of a weakness, a show of unintelligence, an incapability of managing the complex thinking required for pure pragmatism. This conflict made itself plain when I made Biopsy. Any digs made at moral absolutism in its pages were not as interesting as the digs made at the logical extremes of cold utilitarianism. At the time I read Posner with some fascination, not as someone who was wise but as someone who was clever. Pragmatism is not useless, by any means, but it’s seldom more than clever. Morality’s simple form obscures a more daunting substance.
So my embarrassment broke down and Making a Murderer played no small part. The sense of wrong, despite—even because of—the complications of the Avery family, was plain for everyone to see. People in power choosing to act against their oaths to serve pettier desires is something we all mostly hear about as rumor or as discontinued bad practice. I mean, libertarians are well aware of this, but I think people were quite taken aback by seeing the rekindling of grudges at the expense of one person’s life, another’s freedom, and a family’s unity.
If justice is the most favored outcome, injustice is the most egregious obstruction to it, which I take to be an act of one being vaulting above its station in life to lower the station of another. Even if there is no greater power strengthening it or protecting it, there is a thrill, I think, when someone catches someone else in their radar and to deem them as not being human enough; and to proceed as though certain basic entitlements do not apply to them. For instance, though I do not pretend to know the experience of a trans person, nor is it easy for me to understand trans people as they would prefer: as an identity rather than a subculture; but when trans people express fear of reprisal for the simple act of dressing and identifying in a way that, while unusual to most, is not harmful, I am bound to take it seriously. I remember distinctly last summer when Lila Perry, a trans high female in Missouri sought to use the girls restroom and locker facilities in her school—as opposed to the faculty facilities—which split the small town down the middle. There were protests from parents and students organized a mass walkout. I think for her trouble Perry was on The View. But the story is no longer reported, so I have no idea what became of the situation or Perry herself. What remained was a chilling sentiment reported from a local: “There is nothing wrong with being different. But when you are different, there are sacrifices.”
Until we see them so starkly challenged, we tend to be complacent about our worldviews. At some level I was never unconscious of the wrongs that could be made possible within and by this country. But it was always too far off and beyond my control. If I just kept voting for X or argued my family into the ground about Y, and intoned Lord Acton as I would the Our Father, then I’d have absolution. But every election in which I have been eligible to vote gave me fresh reminders of the futility, even the cowardice, of that thinking. Our most recent election is significant in that it drove that point to my face with the force of a mallet.
The struggle for justice always takes place outside of power centers. But I don’t think we, in our current state, are well prepared. Every protest movement since the mid-20th century is modeled in some way on the Civil Rights Movement, the history of which is taught less as a series of acts of civil disobedience designed to bring about specific social outcomes at great risk, but as a rite of passage, a kind of careful ritual. I am skeptical of those I know who are already getting into the romantic dissident mode in light of recent events, but they have a point. The onus is on us to reassert what is right and what we require of one another. The problem is that that there is yet no clear means to do this. The character of the incoming government, like our protest movements, is predicated on familiar models. It is perversely comforting to some that fascism, or whatever, as we have understood it is making a comeback. I’m not going to rule that out exactly, but I’m also not going to rule out more inventive, and therefore more unsettling, mutations taking place that would force the moral citizen to improvise.
The point of seeking justice—whether for yourself or for others—is that it should not require extreme risk as a first resort. Though in worst case scenarios it often happens that all sensible options give way very easily to domino effect before one is left with little other option than fight or flight. That, I think, is how dissidence works. Power twists the screws leaving certain people suddenly capable of defiance that, in any good society, would be foolish. In 1943, the German White Rose movement distributed leaflets decrying “National Socialist subhumanity,” and calling for Germany to become “a federalist state” that defends “freedom of speech, freedom of religion, the protection of individual citizens from the arbitrary will of criminal regimes of violence.” Three of its members, all no older than 24, were brought before the Nazi “People’s Court” and sentenced to death by guillotine, carried out on the same day as the hour-long trial.
Maybe I’m getting ahead of myself. I certainly don’t mean to imply that these are outcomes I want or want others to seek out; or that I personally am capable of doing that. On the other hand, a kind of psychological preparation is something I think is needed to a certain extent. If it becomes clearer going forward that we’ve reached that precipice, I want sanity as much as others want resolve. I want to have made clear an opposing order that is capable of going up against whatever disorder is coming. And I want to see us come out on the other side with our humanity largely in tact, and with a dignity as equitable as air.
This entry is part of the Christmas epistles series.