Comments Elsewhere

Scott:

That seems a fair gloss. I’m tempted to redefine “injustice” as refusing to follow the law — but as we are using “justice” to define a Justices’ personal feelings as to the just and the unjust, it would probably make things more troublesome to shift definitions now.

I’m sorry if I’ve muddied the waters by not making my questions precise. I wasn’t asking about whether or not Supreme Court Justices have a duty to defer their own “personal feelings” about the content of justice to the feelings of someone else (e.g. the legislature or the people at large). I’m using “injustice” here to mean “transgressing against what is in fact just.” The issue of whether a judge happens to feel (rightly or wrongly) that a particular law is unjust doesn’t come into the question in any interesting way (if the judge were ruling based on a mistaken feeling about justice that would be a different case from the one I’m asking you about). The question is about cases where a judge is right to consider a law unjust.

So, for example, suppose that the libertarian theory of justice is true (i.e., justice is consistent non-aggression; an action is in fact unjust if and only if it involves aggression against person or property). Suppose also that the Congress and the several state legislatures pass bills amending the Constitution to authorize some power that manifestly violates those correct principles of justice by authorizing violence against non-violent use of property (an amendment to ban flag-descretation, for example). And finally suppose that you have a judge who (correctly) believes that the amendment authorizes injustice, and decides to ignore the amendment or declare it void on the grounds that it cannot be justly enforced.

The question is whether you are willing to say that the judge has done wrong by issuing a ruling in which she refuses to inflict injustice on an innocent victim. If you are willing to say that, then I have to wonder how anyone could get into a moral predicament where they are bound by duty to do something evil—i.e. where it would be doing wrong to refuse to do something evil. Does the Constitution have the authority to bind people to do evil? If so, where did it get that authority?

Injustice remains a vice, but refusing to follow properly enacted laws seems an equal vice, as it is the imposition of one’s personal sense of justice over what is, in principle, the sense of justice that one is supposed to be representing.

(1) How do you determine which laws were “properly enacted” and which weren’t?

(2) If your answer to (1) allows for some of the laws that you pick out as “properly enacted” to actually require acts of injustice (in the sense that I specified above), then why would you claim that refusing to follow properly enacted laws is always a vice? Don’t we usually consider people who refuse to co-operate with evil virtuous?

(Does the fact that the evil is being committed by a government make it even O.K. — let alone obligatory — to co-operate with it?)

(3) What’s this about “imposing one’s personal sense of justice”? If you are convinced that it’s just to break into my house and steal all my belongings, and I’m not convinced, and I hit you on the head with a baseball bat when you try to act on your theory of justice, I’m “imposing my personal sense of justice on you” in some sense, but would I be doing wrong to do so?