The two featured speakers at the 3rd Biennial John Jay College of Criminal Justice Literature and Law Conference, which was held in New York City in March 2012, each gave an address relating to the conference theme, the Idea of Justice. Professor Sen’s address was entitled “Law and Ideas of Justice”; Professor Anastaplo’s lecture was “Justice and Community, Ancient and Modern.”1 As an introduction to their thoughts, I here address areas of agreement and disagreement respecting their approaches to justice, beginning with their essays appearing in this issue and then touching on more general considerations.
To begin with, both Anastaplo and Sen would agree that there is a contemporary crisis of justice. Each of these scholars has endeavored in his work to address this crisis in one way or another. For Sen, the crisis is global in scope, and its solution also needs to be global; the solution proposed by Sen will require that the prevailing way of dealing with the idea of justice, one deriving from what he describes as the “contractarian” tradition spanning from Thomas Hobbes to John Rawls and his successors, be abandoned. This contractarian tradition, Sen proposes, needs to be replaced by a more realistic approach to justice, one that switches focus from the contractarian’s central concern with institutions (Sen describes this as “transcendental institutionalism”), to a focus upon people and the lives they actually lead. This switch bypasses what Sen views as the impossible challenge of achieving unanimous agreement on an ideal definition of justice and moves instead to achieving broad consensus about what Sen characterizes as “manifest injustices.”
For Anastaplo, the crisis of justice is in the West; it is a consequence of the break from the Western classical tradition initiated by Niccolò Machiavelli. The crisis is reflected in the rise in importance, beginning especially in the Early Modern period, of notions like “conscience,” the “individual,” and “privacy.” The necessary first step to identifying a solution to this crisis for Anastaplo is local—if one can so describe the West—and involves appreciating the extent to which the present crisis was initiated by the modern break with the Ancients (the shift from “ought” to “is” in political thinking), and identifying what needs to be retrieved from the things abandoned by the Moderns, things that continue to be of value and are worth restoring.
There is at least one additional item about which Anastaplo and Sen agree implicitly or explicitly: imaginative literature has a critical role to play in defining justice. Sen’s entrée to justice in his essay is the 4th-century Sanskrit play Mṛcchakatika by Shudraka, the title of which translates into English as Little Clay Cart. It is reminiscent of Shakespeare’s more troublesome comedies and romances in that it ends happily for the romantic couple and the political order, even though things appear headed in a tragic direction for most of the play. For Sen’s purposes, the play is particularly noteworthy because of its culminating rejection of what he calls “tit-for-tat” justice (the rendering of punishment strictly fit for the crime) in favor of an almost incomprehensible mercy. This in particular resembles Shakespeare’s Measure for Measure and the Duke’s perplexing use of his prerogative power to pardon.2
The protagonist and eventual political ruler in Little Clay Cart forgoes what would be required by strict, conventional justice in favor of freeing the would-be murderer, who clearly deserves the death penalty in the context of the play. Sen emphasizes the protagonist’s characterization of this mercy as “killing with benefaction” (Idea 2).3 In this regard, Sen notices that the stated objective of the ruler is “to make the world go well—with prosperity, happiness and security for all” (ibid.). Sen aligns this comment with what he describes as “an old distinction [about justice] from the Sanskrit literature on ethics and jurisprudence” (20). This distinction relates to the Sanskrit terms niti and nyaya, both of which mean justice, but in very different senses.
The justice exhibited by the ruler at the end of Little Clay Cart—one that is concerned with “making the world go well”—is consistent with nyaya, which Sen defines as “a comprehensive concept of realized justice” and contrasts sharply with niti, which means “organizational propriety and behavioral correctness” (3). Niti, according to the requirements of the operative law, would have required the execution of the would-be murderer. Literature, however, provides a vivid illustration of an alternative. For Sen, literature also provides an accessible outside perspective that enables one to see beyond the limits of one’s local situation and circumstances.
If some form of global government, and therefore global justice (or at least reduced injustice), is to be achieved, then there must be a way to provide a “position independent understanding of the world” (161). For instance, in order to overcome “long-established tradition[s] of relegating women to a subordinate position,” you would need to draw upon observations and stories from “other societies” where women who have had “more opportunities” have overcome local prejudice and circumstances and shown that they “have the ability to do just as well as men in [for example] the pursuit of science, given the necessary opportunities and facilities” (162).
Sen illustrates how stories can help to provide such an outside perspective by compelling his readers to see things as others might. He does so by drawing, for instance, from the exchange in Shakespeare’s King Lear between King Lear and Gloucester, following Gloucester’s blinding. There, Lear tells Gloucester that
A man may see how this world goes with no eyes. Look with thine ears: See how yond justice rails upon yond simple thief. Hark, in thine ear; change places; and handy-dandy, which is the justice, which is the thief? (Act 4. Scene 6. 150-153; cited in Idea, 155.)
This passage is particularly apt because it suggests that one can overcome dire circumstances to gain a new perspective; it suggests how one might go about doing it; and it suggests that the new perspective can produce profound, even unsettling changes in the person experiencing it. Viewing justice through literature enables us, even compels us, to abstract from our ordinary sensual engagement with the “real world,” and thereby avoid, for instance, the blind spots we all have when viewing a situation through our own eyes. The alienation involved in experiencing the world through literature is necessary in order truly to “see” the world in its full depth and complexity.
Anastaplo’s use of literature is perhaps more dialectical than Sen’s; his references seem more like conversations than examples. In the essay included in this issue, Anastaplo creates an intricate web of associations between and among a series of literary pairings. In the first half of his address he opposes Aeschylus’ The Libation Bearers, Sophocles’ Oedipus Rex, and Euripides’ Hippolytus, with, respectively, Shakespeare’s Hamlet, Macbeth, and Othello. He derives from these comparisons some key distinctions between the ancient Greek view of justice and the nature of things and more recent attitudes—those occurring in the wake of Machiavelli—attitudes which have complicated the idea of justice by, as noted earlier, elevating notions like “conscience,” the “individual,” and “privacy.”
At the center of his essay, Anastaplo pauses before transitioning from the literature of tragic drama he focuses on in the first half, to some comic drama which he deals with at the outset of the second half, namely Aristophanes’ Frogs, which he pairs with Shakespeare’s The Tempest. In this central section, Anastaplo draws a sharp distinction between the ancient Greeks and the (early) modern West, as reflected in the careers of Socrates and Thomas More. The point of this comparison is to oppose the profound moderation of Socrates with the more extreme conduct of Thomas More—a conduct seemingly dictated by More’s conscience. The suggestion seems to be that More’s conscience, in some fundamental way, prevents him from achieving the self-knowledge he needs to act responsibly. Towards the end of his essay, Anastaplo returns to tragedy in a more modern context, a context in which tragedy takes on a radically different quality, and produces different, more disturbing effects.
Shakespearean tragedy is not principally designed to purge problematic emotions by exposing them unambiguously as vice, or by illustrating how the practitioner of vice faces severe consequences, as was the case with classical tragedy. Consequently, one can wonder whether in the (early) modern context, tragedy might be seen on occasion to produce that which it formerly purged. Anastaplo, in the shift evident in the Oedipus-Macbeth coupling, sees an ominous association and perhaps foreshadowing of the career of Martin Heidegger, just as he sees in Friedrich Nietzsche a similar association in the Orestes-Hamlet coupling, and in Jean-Jacques Rousseau, an association in the Theseus-Othello pairing.
These pairings are meant to question some of the dominant trends in Western political philosophy. They also establish Anastaplo’s opposition to Sen. He raises the question of whether Sen’s move from considering justice in local terms to considering it in global terms is either as necessary or as beneficial as Sen makes it out to be. Anastaplo, it should be noted, follows in line of those who see in great literature a close relationship between morality and imagination. A comedian like Aristophanes in this light is “concerned with making [people] of the cities good and noble” by “concealing vice, [that is], by depriving vice of its attraction” (Strauss, Socrates 5). Aristophanes could perhaps even see it as his duty to take the great personal risk of telling the Athenians directly what justice should be, albeit “by treating the just comically” (ibid.). The tragedies of Aeschylus and Sophocles have a parallel civic concern: that of exposing vice to promote justice and the common good of the community.
This essay has thus far established that both Anastaplo and Sen see literature as important, but also that they invoke it for different purposes.
Having pointed out two things about which Sen and Anastaplo agree, namely that justice is in crisis, and that literature can be a useful tool for exploring ideas of justice, now, in the central section of this essay, it is necessary to step back and place the work of each of these scholars in a broader perspective. Doing so will help to clarify where they disagree and what they are trying to accomplish.
Beginning with Anastaplo, it is necessary first to consider the general outlines of the problem that he spent his entire career exploring. This is best expressed in the words of Leo Strauss, a teacher Anastaplo began to follow once it became clear he would not soon become a lawyer (Anastaplo, Artist 251):
We cannot reasonably expect that a fresh understanding of classical political philosophy will supply us with recipes for today’s use. For the relative success of modern political philosophy has brought into being a kind of society wholly unknown to the classics, a kind of society to which the classical principles as stated and elaborated by the classics are not immediately applicable. Only we living today can possibly find a solution to the problems of today. But an adequate understanding of the principles as elaborated by the classics may be the indispensable starting point for an adequate analysis, to be achieved by us, of present-day society in its peculiar character, and for the wise application, to be achieved by us, of these principles to our task. (City 11)
Anastaplo’s work involves translating “the classical principles as stated and elaborated by the classics” to the issues of the day faced by Western societies (Artist 251). These societies, in their current form, are both the direct products of the modern Western political philosophy and the inheritors of classical political philosophy.
Anastaplo is interested in showing not only how the classical principles, modified somewhat to fit present circumstances, continue to be relevant, but also how they are indispensable if we are to find “solution[s] to the problems of today” (ibid.). It is not immediately clear how or whether Anastaplo’s efforts apply to non-Western societies.4 In fact, the bulk of Anastaplo’s work concentrates upon his native society, and how issues facing that society interact with its founding principles, the ones so eloquently expressed in the Declaration of Independence, and with its other founding documents, including the Constitution of 1787 and its Bill of Rights.5
In contrast with Anastaplo, who views justice more as the local concern of a people, of a society, of a nation state, or of the West, Sen addresses the crisis of justice by advocating universal justice, which presumably will need to be administered by a system of loosely federated democracies.6 Sen hints that the move towards a world government of global cooperation is necessary to secure the poorest and most disadvantaged members of the world community against what he describes as “manifest injustices” (Sen, Home 21). His project for addressing the crisis involves a fundamental switch in emphasis from identifying “what is just, or justice,” a question which Sen argues is rooted in idealism and upon which broad agreement is consequently unlikely, to “what is manifestly unjust,” a question for which he suggests broad agreement can be achieved (152, 401, 412).7
Sen thinks such consensus is possible because the question of “what is manifestly unjust” deals with real-world concerns and the way people actually live their lives (10, 18, 135, 259, 262). Sen does premise the achievement of such a consensus upon the people who decide having the benefit of education and having relatively free access to information through a free press (327). He further assumes that there will develop a tradition of informed and civil discussion of public issues among a gradually more and more educated general populace. The ambitious and provocative list of manifest injustices Sen identifies as a starting point for such a discussion include 1) oppression (slavery, the subjugation of women), 2) systematic medical neglect, 3) lack of universal health coverage, 4) torture, and 5) chronic hunger (Idea xi). Until adequate structures of global cooperation are established, and the requisites to hold civil and informed public debates everywhere are established and become widely accepted, Sen proposes that the more developed nations have the duty to help remedy at least this initial list of manifest injustices in less developed nations (ibid.; Home 401-10).
Another area of disagreement between Sen and Anastaplo concerns Niccolò Machiavelli. Sen, in my opinion, imitates the profound move made by Machiavelli in Chapter 15 of the Prince, when he cautions against what we would today call utopian thinking:
But since it is my intention to write a useful thing for him who understands, it seemed to me more profitable to go behind to the effectual imagination thereof. And many have imagined republics and principates that have never been seen or known to be in truth; because there is such a distance between how one lives and how one should live that he who lets go that which is done for that which ought to be done learns his ruin rather than his preservation—for a man who wishes to profess the good in everything needs must fall among so many who are not good. (61)
Sen’s emphasis upon the “lives that people are able to lead” and “the actual behavior of people” over and against the contractarian emphasis upon ideal institutions resembles the move Machiavelli makes in rejecting “imagined republics and principates” (which focus on how people should behave) in favor of taking one’s bearing from how people actually behave most of the time (Idea, xi, 7). Anastaplo differs from Machiavelli and Sen here, concentrating on the moral fiber of those who run the political institutions. He emphasizes against the contractarians that these political figures be educated in a way that develops in them the Classical virtues of “prudence and moderation,” so that they conduct their official duties accordingly, acting with prudence and moderation “even in the pursuit of justice” (Moralist, xv; Artist, 279-283; See also Strauss, Natural Right, 120-164).
Sen delineates the contractarian tradition against which he is reacting as commencing with Thomas Hobbes and developing through Locke, Rousseau, and Kant (Idea 5). The label he assigns to this tradition is “transcendental institutionalism,” and he claims that it is the foundation “on which today’s mainstream political philosophy largely draws in its exploration of the theory of justice” (7).8 The key difficulty, according to Sen, is that theories of justice developed in this tradition “focused on transcendental identification of ideal institutions” and “required the presumed compliance by all” with what is determined to be “ideal behavior” (6). That is, transcendental institutionalism is concerned with identifying perfect justice or, what amounts to the same thing, perfectly just institutions (ibid.). Sen explains that because there are a “plurality of reasons for” and several “competing principles of justice” about which reasonable people can differ, “there may not indeed exist any identifiable perfectly just social arrangement on which impartial agreement would emerge” (11).9
Transcendental institutionalism ultimately falls short, according to Sen, not only in that it is too idealistic, or even “utopian”—in the old-fashioned sense of that term relating to an unachievable ideal— but also in that it fails to compare “feasible societies” and does not consider “the actual behavior of people” or “the kinds of lives people actually lead” (7, 10). In his emphasis on actual people and their behaviors and what is feasible, Sen, like Machiavelli, wants to prioritize “the effectual truth of things” over “the imagination thereof.” Strauss suggested that Machiavelli turned away from the classics and the biblical tradition, from the emphasis upon “the imagination of things” which he perceived in them, because he
tended to believe that a considerable increase in man’s inhumanity was the unintended but not surprising consequence of man’s aiming too high. Let us lower our goals,” [Machiavelli might say,] “so that we shall not be forced to commit any bestialities which are not evidently required for the preservation of society and of freedom. (Political Philosophy 44)
In a similar vein, Sen foresees the indefinite continuance of manifest injustices that will be suffered by a large portion of the world populace if the pursuit of justice continues to be guided by the contractarian tradition. He turns away from idealism for the sake of achieving what he sees as a realistic solution to the crisis of justice.
Anastaplo’s work is perhaps best characterized as a rearguard action defending against what he considered to be the corrosive effects of Machiavelli’s insistence that moral standards are a human invention and not innate in nature. He endeavored to free “himself from Machiavelli’s influence” so that he could see Machiavelli from a “pre-modern point of view,” a perspective which presents Machiavelli as “altogether unexpected and surprising,” as someone who appears entirely “new and strange” (Thoughts 13). Anastaplo strives to resurrect the vital teaching that there are indeed moral and political standards rooted in nature and discernible through reason (Berns, “Classicism”). This puts him at odds with Sen but also with the contractarians. Anastaplo does not argue that institutions are transcendental. Rather, he considers them to be local and traditional, embodying the values of particular communities.
Both Sen and Anastaplo agree on the primary importance of reason when it comes to justice. That is, they are both vigorously opposed to irrational ways of understanding and approaching the world, whether they be of the sensual/instinctive or the religious variety. But they disagree on the kind of reason upon which we should rely. Anastaplo looks to a more classical rationalism that is remote from the modern rationalism upon which Sen relies.
Many things flow from this difference, but perhaps none more important than the recognition in classical rationalism that its great competitor was religious belief. Anastaplo continued to wonder whether in the West, in some profound way, the tension between rationalism and religious belief was fundamental, and that the apparent relaxation of this tension in modernity was just a temporary anomaly associated with the rise of natural science.10
Sen, in contrast, appears to be fully modern in his outlook, a believer both in the scientific enterprise and the sort of progress that has flowed in its wake. While Sen anchors his rejection of religious belief to his temperament and to a long line of religious skeptics in the classical Indian tradition, the little he expressly says on the topic seems to align closely with thinkers such as Richard Dawkins and Christopher Hitchens (Home 63). Sen goes so far as to suggest that there is an alignment of Eastern and Western thought in his promotion of such skepticism in the service of a scientifically informed rationality (40, 89).11 The sort of modern reason drawn upon by Sen aligns closely with Enlightenment rationalism, and Sen projects that it can fuel continued progress towards the global reduction of injustice.
The classical reason invoked by Anastaplo is ultimately Socratic in origin, and like the religion that is its contrary, tends to find its roots in the local customs of communities.
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---. The American Moralist: On Law, Ethics, and Government. Ohio University Press, 1992.
---. The Artist as Thinker. Swallow Press, 1983.
---. The Bible: Respectful Readings. Lexington Books, 2008.
---. The Constitution of 1787: A Commentary. JHU Press, 1989.
---. The Constitutionalist: Notes of the First Amendment. SMU Press, 1971.
---. “The Declaration of Independence.” St. Louis Law Journal, vol. 9, 1965, pp. 390-415.
---. Reflections on Constitutional Law. U of Kentucky P, 2006.
---. Reflections on Life, Death & The Constitution. U of Kentucky P, 2009.
Berns, Larry. “The Classicism of George Anastaplo,” The Political Science Reviewer, vol. 26, 1997, pp. 90-113.
Machiavelli, Niccolò. The Prince. 1532. Translated by Harvey Mansfield. U of Chicago P, 1998.
Majeske, Andrew. “Equity’s Absence: The Extremity of Claudio’s Prosecution and Bernardine’s Pardon in Shakespeare’s Measure for Measure,” Law and Literature, U of California P, vol. 21, no. 2, Summer 2009, pp. 169-84.
Sen, Amartya. Home in the World. Liveright Press, 2022.
---. The Idea of Justice. Harvard UP, 2009.
Shakespeare, William. The Taming of the Shrew. 1594. Simon & Schuster, 2014
Strauss, Leo. The City and Man. The University of Chicago Press, 1964
---. Natural Right and History. The University of Chicago Press, 1953.
---. Socrates and Aristophanes. The University of Chicago Press, 1966
---. Thoughts on Machiavelli. The University of Chicago Press, 1958
---. On Tyranny. The Free Press (Agora Ed), 1963
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Tarcov, Nathan, and Thomas Pangle. Epilogue. History of Political Philosophy, by Leo Straus and Joseph Cropsey, 1963, 3rd ed., U of Chicago P, 1987, pp. 907-938.
Andrew Majeske is an NASJ editor, an Associate Professor at John Jay College of Criminal Justice (CUNY, New York), and an Adjunct Professor of Law at McGeorge School of Law (University of the Pacific, California).He is author of Equity in English Renaissance Literature (Routledge, 2006), as well as numerous articles ranging over a number of areas of interest. He is also an editor and contributor to Justice Women and Power in English Renaissance Drama (FDU Press, 2009).