Vol. 14 No. 7 (July 2004), pp.520-524 

RE-IMAGINING JUSTICE: PROGRESSIVE INTERPRETATIONS OF FORMAL EQUALITY, RIGHTS, AND THE RULE OF LAW, by Robin L. West. Burlington, Vermont: Ashgate Publishing Company, 2003. 204pp. Hardcover. $99.95 / £55.00. ISBN: 0754622967.

Reviewed by Gloria C. Cox, Department of Political Science, University of North Texas. Email: gcox@unt.edu

According to Robin L. West in RE-IMAGINING JUSTICE, our traditional interpretation of legal justice has failed us. At the turn of the nineteenth to the twentieth century, courts “regarded the threat to freedom posed by minimum wage laws as a greater danger to individual freedom than the threat posed to individual survival by sub-minimum wages” (p.5).  Similarly, as the twentieth became the twenty-first century, the same system “regards the greatest threat to free speech as emanating from innocuous campus and university speech codes, rather than from cross-burnings, gay-bashing, or the vandalizing of menorahs on those same campuses” (p.5).  The author believes such rulings constitute ample evidence of the failure of our legal system. In response, she calls for a reinterpretation of the important legal concepts within legal justice and the establishment of a progressive legal system that can bring about the good life and the good society.

The author posits that the term “legal justice” is best understood in terms of three concepts: the “rule of law;”individual rights;” and “formal” or “legal equality.” She argues that it is possible to identify dominant interpretations of legal justice ranging from conservative to libertarian, and (in keeping with the views of the critical legal studies movement), she finds both perspectives inadequate and outdated. West faults the conservative approach, so closely followed by some judges and attorneys, for helping to preserve the status quo. Although conservative rulings may be useful to promote stability and maintain the structure of society, that advantage becomes a disadvantage when law is used to maintain unfair distinctions, such as racism and sexism. From the libertarian or liberal perspective, West sees the problem as too much emphasis on freedom, which prevents government from entering various private spheres and taking the steps necessary to create a good society—or at least a better one.

The solution that West proposes in this brief volume is a reinterpretation of each of the components of legal justice. Her vision is that these new constructions will be developed on a base of concern for humanity and adherence to moral principles.  New interpretations would also acknowledge the relationship between law and politics and would cast government in the new role of agent empowered to create the best society. The author’s proposals are controversial in legal scholarship, mainly for her willingness to criticize legal ideals developed over centuries and deeply revered by the majority of the legal community, but also for the new constructions that she envisions. [*521]

I found the book provocative at times, as when West argues that the law should be capable of reaching into private spheres to bring about positive change, such as protecting those whose work is care giving. She writes “we must from time to time interfere with rather than relentlessly honor the liberty that comes from our certainty regarding the legal leviathan” (p.8). Nonetheless, even those of us who relentlessly honor liberty find it rewarding to explore such well-presented ideas. The excellent and generous documentation only adds to the scholarly complexity of the author’s work, and the book is impressive in its lucid discussion of many ideas and their connectedness. Still it is not easy reading, as the author writes as easily of philosophy as of legal opinions and politics, weaving in important court cases, mythology, and popular culture. Whether one agrees with her statements or not, it is entirely appropriate to respect the intellectual ability that makes such discussion possible.

Following the introductory chapter, West begins her discussion of each of the three concepts, beginning with the Rule of Law, which is commonly understood by liberals and conservatives alike to mean that judges apply relevant rules from the body of law that society has created over time, both legislatively and through cases. This fidelity to law, while not ensuring justice, is supposed to keep judges from usurping the work of legislators and result in similar outcomes for those similarly situated. This is a complex, closely reasoned chapter, and the author’s ideas cannot easily or adequately be simplified.

An important argument woven throughout RE-IMAGING JUSTICE (and the critical legal studies movement) is West’s assertion that lawyers and judges are using faulty logic when they view the Rule of Law as protecting the citizenry from politics and the political process. To her, law is not separate from politics and never can be, and law and politics are close relations rather than enemies. In West’s words, “Law is political through and through” (p.124). She writes that it is the political process through which people voice their views about issues and let representatives know their needs, and it should not therefore be discounted. In her words, politics “is the means by which communities and individuals create meaning” (p.9).

An interesting example of the debate over Rule of Law is illustrated by a letter, signed by some 700 attorneys, condemning the Supreme Court’s ruling following the Election of 2000. The attorneys argued that the Court, in its decision that made Bush the winner, had betrayed the Rule of Law. West discusses how other legal scholars who disagreed with the Court still refused to sign the letter, because they did not believe that the current interpretation of Rule of Law supported such a conclusion. She goes on to say that a progressive construction of the concept, however, would have provided ample reason to disagree with the actions of the Supreme Court.

West chooses to consider Rule of Law in light of the ideas of Thomas Hobbes and Thomas Paine, which makes for an interesting analysis. The author uses the ideas of Hobbes to justify her view that Rule of Law should be reinterpreted, noting that Hobbes considered government as a positive force and saw [*522] law as “an improvement over the chaos of a state of nature” (p.56).  One is tempted to point out that Hobbes held a very different view of society and human nature than that which we now embrace.  As for Thomas Paine, while he saw law as giving “direct voice to the people” (p.54), he was comparing a system that runs on law to the rule of monarchs that have no accountability to the citizenry.  West writes, “the Rule of Law, if we take Hobbes and Paine seriously as Rule of Law theorists, expresses a commitment to politics and democracy that goes well beyond the bare commitment to judicial constraint, and legal determinacy, at the heart of contemporary Rule of Law debates” (p.55).  The hard question, it would seem, is whether we can accept the premises of Hobbes and Paine over other theorists (John Locke, for example) concerning the Rule of Law.

Chapter Three moves on to the second component of legal justice—the concept of rights.  The nature of rights in American society is negative, protecting the citizenry from certain kinds of interference by the government. The author notes that this characteristic has made our rights more full of promise than substance, because it keeps the state from moving in the direction of the good life or the good society. West includes the argument made by some that “the state is obligated to do whatever it takes to provide that minimal level of well being to each of its citizens,” but the negative character of rights keeps the state from taking the overarching kinds of actions that would lift up the weak and poor to higher status (pp.75-77).   Additionally, our rights create areas of non-interference around us, which allows us, if we are of that mind, to exploit others, away from public scrutiny and retribution. Negative rights establish “a privilege to exploit others” (p.77), which accounts for our inability to deal effectively with issues such as spousal and child abuse.

In addition, the author asserts that rights are morally empty because they fail to recognize the moral obligations we have to one another (p.81).  She again turns to Hobbes and his view that government exists to protect the citizen against private violence. West argues that rights could in fact be asserted as positive, as in a right to a clean environment, a violence-free society, adequate health care, and so on, regardless of cost, which would save us from the cost-benefit analysis that now passes for consideration of rights (p.92). (Notably, in the international arena, the second generation of human rights includes the same positive rights that West includes in her analysis, recognizing that free speech means little when people lack food, shelter, and other necessities of life.)

The author asks, “What might a liberal state look like, if it employed positive and relational rights, as well as negative and individualist rights, and conceived of those rights, furthermore as directed toward the protection of capabilities and autonomy both” (p.92)? That state would include welfare rights and rights to work, as well as a right to security against private violence. The right to that security would take many forms, such as protection for lesbians and gay men against violence, as well as adequate laws to ensure the safety of school children and provisions to guarantee that members of one group were not more severely punished than those of another [*523] for the same infraction of laws (pp.92-93). The author also includes the right to doulia, which refers to the state’s protection of those who are dependent as well as those who provide care (pp.94-95). West maintains that economic institutions are not likely to compensate such work, and women are more likely than men to be adversely affected by that fact (pp.95-96). She says “most fundamentally, liberalism ought to recognize such rights because such rights are necessary to a good, and liberal, society, virtually regardless of how that society is defined” (p.96).

The author constructs many new rights, not currently part of our guarantees, but she is not merely putting them forward for consideration. She posits that judicial remedies are not effective in bringing rights to fruition, and argues instead for reliance on legislative changes, such as the legislation of the 1960s that effected greater racial and sexual equality (p.99). The result would be “imaginative reconstruction of rights from negative to positive” (p.100). She advocates for their adoption, and even asserts that they are not controversial (p.95).  Most readers would regard her assertion as bold, especially in light of the comprehensive nature of such rights and the level of government activity and intrusion into private spheres that their implementation would necessitate.

In Chapter Four, West deals with the third of the components, “formal equality,” by which judges decide like cases in like manner. The idea that like cases should be decided the same is supposed to guarantee that litigants are treated equally. Some scholars criticize the ideal of formal equality, noting that it is never really equal to treat everyone the same way, as we are not comparable and the creation of categories is always subjective and value-laden.  Others criticize breaches of the ideal, as when sex, race, or economic status places one in a situation of advantage or disadvantage. West defends the concept of formal equality, preferring reinterpretation to abandonment. As she explains, “When a citizen is treated differently, or singled out for harsh judgment, or exempted from laws to which the rest of us are held, or when one group of us is awarded with legal largesse while similarly situated groups are not, we feel a moral insult, and we feel it toward the court that breached the ideal itself, or upheld the constitutionality of the breach occasioned by the offending legislation” (p.133). To illustrate her ideas, she turns to popular culture for examples and includes dialogue from Huck Finn and Aunt Sally, lyrics from Bob Dylan, and recollections of O.J. Simpson and Nicole Brown.

West provides a useful illustration of how the progressive view of legal justice would work by reviewing the traditionalist and libertarian perspectives in the case of UNITED STATES v. VIRGINIA MILITARY ACADEMY (1996). She sees Justice Ginsburg as using the libertarian model to strike down unconstitutional sex discrimination, while Justice Scalia dissents from the ruling with the traditionalist approach that would permit protecting the traditions of VMI and its all-male student body. West suggests that a progressive view of law would take a humanitarian perspective that acknowledges shared values among men and women who want to serve their country through military service. [*524]

In the final chapter, West elaborates on her view that positive use of the law is a good thing, allowing for rules to ban the exploitation of children, to prohibit some children from bullying others on the playground, to protect victims against domestic violence and from other harmful actions common to our society. She also sees progressive law as the basis for international covenants that protect the helpful while punishing terrorists and genocidal rulers (p.166).

RE-IMAGINING JUSTICE is a bold and complex book that provokes thoughtful consideration of ideas.

REFERENCES:

Kairys, David. “The Politics of Law: A Progressive Critique.” The Critical Lawyers’ Handbook, Volume 1.

McArdle, Elaine. “From Ballistic to Holistic.” The Boston Globe, January 11, 2004.

CASE REFERENCES:

UNITED STATES v. VIRGINIA MILITARY ACADEMY (1996).

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Copyright 2004 by the author, Gloria C. Cox.