The law student confounded by the simple question, “What is justice?” now sits in an exceptional moment of reckoning. The question is not a facetious one, despite the grave irony of being asked in a country built on stolen land by stolen people, where even the most publicly adored jurist can callously dismiss an indigenous nation by wagging at “embers of sovereignty that long ago grew cold.” The question is all the more important in that grand institution called law school, which has tended socially and pedagogically to perpetuate inequities. Yet the law school curriculum appears not to answer the question, or at least not satisfactorily. This leaves the law student to either adopt narrow doctrinal assumptions about justice, or to go ask the question elsewhere.
Perhaps it is unfair to expect so much of a law school education. It is, after all, a practical education, and the marginalia of our casebooks (those passages that are not tested on exams and are minimally discussed in class) do include some adjectival discourse comparing the differences between retributive, distributive, restorative, et alia, theories of justice. But I think of Søren Kierkegaard, the Danish philosopher who, in the nineteenth century, wrote: “Today nobody will stop with faith; they all go further. It would perhaps be rash to inquire where to . . . In those old days it was different. For then faith was a task for a whole lifetime, not a skill thought to be acquired in either days or weeks.” One could say the same for justice.
Right now, all fifty states are rising in a tide of protests that began with the videotaped murder of George Floyd by indifferent policemen and all that they represent. If the law we had compiled in our tidy first-year course outlines amounted to justice, surely the protests would have ended after each policeman involved in Floyd’s murder was charged and arrested. But the protests persist. It would appear that the first-year curriculum presumed what justice was; in Kierkegaard’s terms, the curriculum taught us to go further than justice, while the protests invite us to stop and interrogate justice with the resounding chant, “No justice! No peace!” On such full streets are we given the task of a whole lifetime.
The casebook method used in all law schools presents an adversarial framework of justice. The method is outcome focused. The student reads the end result of a dispute between two litigants, and reverse-engineers from that result an underlying principle of doctrine. As the student becomes more efficient and is asked to read more cases, the story of each case is reduced to a quick tag in a semester’s outline: “Who fought whom for what?” And the moral of the story is further reduced: “Who won, and why?” Such a framework is univalent: two sides play, one side wins, the winner takes all. If that is justice, then justice looks like an all-or-nothing choice of one side’s victory over the other’s. It looks like conquest. And if conquest is king, then perhaps all the doctrinal principles and tools we reverse-engineer from the legal reasoning of judicial opinions—from economic incentives to procedural fair play—are less about justice than about how our system has learned to manage the politics of power.
The framework of large-scale protest, on the other hand, is not univalent. Of course, protest is adversarial in nature. It is composed broadly of two parties: the congregated body politic against the system to which it is appealing. The media especially tend to highlight the adversarial optic, framing the two sides as separated by clouds of tear gas, or by the concessions and pushback that traverse the boundaries those clouds mark. But as a protest turns into a movement and reaches the scale of actions seen around the country today, its nature becomes multivalent. Not only does the congregated body turn outward by appealing for change from an established system, it turns inward as well, organizing and sustaining itself with deep coalitional connections, inventing and practicing an alternative to the system to which it appeals for change.
This inward turn is especially visible on the streets. I have written elsewhere about the 2014 Umbrella Movement in Hong Kong, where the people of the world’s densest city occupied wide streets for three months and suddenly had the open space to envision, physically and metaphysically, a “living room” other than their own caged tenements. In 2019, this same undercurrent of movement organizing led to the emergence of Hong Kong’s systematic and subaltern “yellow economy.” Others have made similar observations about the alternative political economies distilled out of practice and invention on the streets of protests from Occupy Wall Street to Standing Rock and now to Seattle’s Capitol Hill Autonomous Zone, or “CHAZ.” (This blog piece was written in the CHAZ’s early stages, before its being renamed “CHOP” and other major developments.) The politics of these settings speak deeply to our tribal instinct as human beings to rise and build together in adversity, even in the aftermath of natural disasters.
Thus, this second, inward-looking valence is more than the negative reaction to injustice; it is the positive imagination and enactment of values that may comprise justice. This valence is more than the incremental reforms won by adversarial pressure. Notwithstanding reform’s importance, it is worth noting that past reforms have fomented an explosive disappointment as further police killings of unarmed Black people have only led to more repetition of protests over the years. (This is not to mention how this year’s protests against police brutality have also led to more police brutality.) In the face of such disappointment, reform by adversarial appeal can only come as close to justice as what one commentator, a would-be lawyer, once described with disdain as the “desegregated cup of coffee.”
This is not to say that the incremental work of reform is mutually exclusive from more imaginative departures from the system. We must not forget, for example, that calls for defunding the police have been made long before this year’s protests. But the Minneapolis city council’s recent decision to disband the police force cannot be understood as merely an incremental reform resulting from such calls. Rather, it correlates with the lived reality being demonstrated on the streets, where protestors enact an alternate social order and internal governance. It correlates with descriptions of the CHAZ as “an experiment in life without the police.” Thus, this second valence of movement-building—that of culture-envisioning—is not the token of an adversarial framework of justice. It is something more like justice created from within and by adversity.
I focus on this distinction not because it has any theoretical value in itself, but because it may light a different path toward understanding the law school curriculum and our place in the legal system. If the adversarial framework is fundamentally borne out of univalent conflict and the management of such conflict, then what the framework fixates on is not justice. Instead, it fixates on injustice, along with the expedient or otherwise acceptable methods of resolving the conflict arising out of such injustices. That we refer adjectivally to “social” justice, “retributive” justice, “distributive” justice, and so on, does not seem to suggest that we are capable of living in a multitude of justice, or a multitude of just societies. Indeed, it is more likely that human history has never known a truly just society; the first written Utopia was named with a Latin pun meaning both “good place” and “no place.” Those adjectival theories of justice, in competing with one another, seem rather to identify the injustice in the other’s methods.
It is no wonder that injustice is unmistakable and needs no stretch of the imagination to describe, while justice tends to be rendered imaginatively, evocatively, and vaguely. Consider, for example, a line oft attributed to Dr. Martin Luther King, Jr., and appearing on some protest signs: “The arc of the moral universe is long, but it bends toward justice.” The image has an evangelical touch with its deferral to a kind of afterlife; but it leaves us to the here and now, to a long human condition that is decidedly other than just. The law is a tradition with a long arc. We align ourselves with that tradition even as we reshape it to make room for ourselves and for our present. As T.S. Eliot wrote, “Some one said: ‘The dead writers are remote from us because we know so much more than they did.’ Precisely, and they are that which we know.”
Perhaps all I have suggested here is the already obvious: that injustice is our human condition, our finitude, that the caselaw precedent we study is an ever-accumulating, ever-receding discourse on society’s injustices, and that progress in the legal system may never give us the opposite of injustice, but only take us through octaves of tonally similar recurrences. But if we are to envision justice—to envision an infinitude—what we will need is not to know more, nor merely to build on the knowledge of the past. What we will need is to know differently.
We are like Walter Benjamin’s angel of history, whose face is turned toward the past where he sees, instead of a causal chain of events, wreckage piled upon wreckage: “The angel would like to stay, awaken the dead, and make whole what has been smashed. But a storm is blowing from Paradise . . . The storm irresistibly propels him into the future to which his back is turned, while the pile of debris before him grows skyward.” We are educated in the accumulation of caselaw, its stare decisis, its stories of injustice piled upon the law’s responses to injustice.
We will never be able to stop and make any of those injustices truly whole. But that accumulation is not the consummation of our education. A line from a Jack Gilbert poem comes to mind, although out of context: “To make injustice the only / measure of our attention is to praise the Devil.” There is a future behind our backs, and other angels around us. To envision a justice that the law cannot teach—to invent it—we will have to turn around to see and practice it together.
Henry W. Leung: J.D. Candidate 2021, UC Berkeley School of Law and California Law Review Vol. 109 Associate Editor.
Recommended Citation: Henry W. Leung, Angels of Injustice: What Large-Scale Protests Teach Us About Justice, Calif. L. Rev. Online (July 2020), http://www.californialawreview.org/angels-of-injustice.