Summer Reading: Judith Shklar's "The Faces of Injustice"

Anonymous

Sat, 06/09/2012 - 05:33

Book Reviews

I recently read Judith N. Shklar's book <a href="http://books.google.com/books?id=vfqbGgwEIQkC&printsec=frontcover&dq=fa…; target="”_blank”">The Faces of Injustice</a> (Yale U.P., 1990). This excellent essay
about the difference between misfortune and injustice would not
appear to have much to do with government ethics. But there turns
out to be much relevant food for thought. 
 
The principal difference between misfortune and injustice lies in
how people perceive and interpret events. Those who cause suffering
have serious blind spots that make them interpret the event as
unavoidable and unfortunate, when in fact they are responsible
either for the event or for doing nothing to prevent or fix the
situation that led to the event. 
 
This difference is at the heart of the way high-level local
officials deal with government ethics. They do not see their misuse
of office as causing suffering. They say, to themselves and others,
that what they do is in the public's best interest, implying that
the public is wrong to see their misconduct as wrong and damaging.

They
say that everything is going well, that there are just a couple of
bad apples, not recognizing that, as Shklar wrote, "even when
justice and fairness do prevail, they are undramatic and
forgettable, while injustice is always felt keenly and memorably.”
When it comes to prevention, officials often say that the regulation of ethical
misconduct is expensive and unnecessary, even though it can increase
the public's trust and participation in the management of their
community, and these are priceless. 
 
They say that corruption is based on an individual's character, that
is, it is unavoidable and unfortunate (misfortune) rather than
unprofessional and unfair (injustice) and, ultimately, damaging to
the people in their community, in terms of money, pride,
participation, and the attraction of businesses. 
 
Another similarity between injustice and ethical misconduct is the
way the injured parties deal with them. In different ways, the injured parties give
in to hopelessness. Victims of injustice accept it as the way things
are, or even blame themselves. This is certainly true of the poor. 
 
Victims of ethical misconduct, that is, the public, tell themselves
that all politicians are corrupt, and there's nothing you can do
about it. They may vote in favor of a referendum creating an ethics
program, but they don't really believe it will work. Yes, they're
angry when it doesn't appear to make a difference, just as a member
of a racial minority is angry when they're treated badly. But anger
doesn't change things. 
 
In a <a href="http://www.huffingtonpost.com/patricia-mcguire/kwame-brown-resignation_…; target="”_blank”">Huffington Post post this week,</a> Trinity Washington
University president Patricia McGuire says much the same with
respect to the recent indictments and investigations of high-level
District of Columbia officials:<ul>

Every citizen of the city pays a heavy price for the moral failures
of our leaders. The solons of Congress [an ironic reference to the <a href="http://en.wikipedia.org/wiki/Solon">ancient Greek ethical reformer Solon</a>] who have never respected the
District of Columbia's fundamental freedom to govern itself now add
"too corrupt" to their private list of the "toos" they chant about
D.C. — too liberal, too urban, too Democratic, too black. Each new
scandal adds fresh meat to the table of bigotry where throngs still
feed regularly. ... 
 
Curiously, and sadly, public outrage over the betrayal of Home Rule
at the hands of its very stewards seems muted, a shrug not a scream.
The pervasive disenfranchisement of D.C. citizens is clear in the
largely passive reaction to each new indictment. We knew this was
coming; there goes another one; what do you expect.</ul>

Another similarity between injustice and ethical misconduct is that,
while there are thousands of pages written by political scientists
and philosophers about justice, they rarely write about the effects
of injustice (this is left to sociologists and psychologists), and
while there are thousands of pages written by public administration
professors about administrative ethics, there is little written
about the effects of ethical misconduct on the public (not even the
sociologists and psychologists have shown much interest). 
 
We cannot have effective, comprehensive government ethics programs
until we recognize the harm that is done by ethical misconduct, not
just to the day-to-day functioning of government, which can go on
despite it, but the many ways it harms the
community, placing a divider between official and citizen, making
people feel angry and helpless, making them passive and cynical,
making unfairness seem the norm, and undermining our democracy. If
this is not enough to convince officials to set up an effective,
comprehensive government ethics program, then they clearly have no
concern for the citizens in their community. 
 
Passive Injustice 
Another relevant issue raised by Prof. Shklar is passive injustice,
"the refusal of both officials and private citizens to prevent acts
of wrongdoing when they could and should do so. ... By passive
injustice I do not mean our habitual indifference to the misery of
others, but a far more limited and specifically civic failure to
stop private and public acts of injustice. … when we do not report
crimes, when we look the other way when we see cheating and minor
thefts, when we tolerate political corruption, and when we silently
accept the lies that we regard as unjust, unwise, or cruel. Public
servants are even more likely to be passively unjust, being by
training unwilling to step outside the rules and routines of their
offices and peers, afraid to antagonize their superiors were they to make
themselves unduly conspicuous. The resulting injustice is [due to]
many hands in general, who need to be reminded constantly of the
possible consequences of their inaction.” 
 
Passive injustice allows ethical misconduct to occur. The
existence of unwritten rules, the intimidation and fear, the
misplaced loyalties of an organization lead to silence and
acceptance of misconduct. Shklar believed that even citizens have an
obligation not to be passively unjust. “Passive injustice is a
strictly civic notion. It does not need the support of any
particular moral philosophy … Passive injustice refers to our public
roles and their political context — citizenship in a constitutional
democracy." 
 
With their fiduciary duties, government officials have a much
stronger obligation. If even some of them were to accept this
obligation and pay it more than lip service, there would be very
little ethical misconduct. Then, only very bad apples would misuse
their offices in any more than minor ways. 
 
Shklar picked out attorneys as especially responsible for passive
injustice. In proceedings, they act as insiders to whom it never
occurs to protest against ethical misconduct. It’s a game for them,
and winning is what matters. Government attorneys should not even
care about winning their cases; this is not always the best, most
fair thing for the community. And yet too rarely do they protest or
prevent ethical misconduct. 
 
Prevention 
Shklar felt that we should not focus on the whys of misconduct, but
rather on prevention: “The choice between punitive blaming and
indifference can be made less drastic if we do not look for personal
betrayal of trust, conspiracy, or culpable incompetence and
concentrate more on failures to prevent avoidable mistakes with a
view to making their recurrence less likely and repairing the damage
as well as possible.” This is exactly the goal of a government
ethics program. 
 
Plato and the Unjust 
Shklar discusses Plato's views on unjust people, which is amazingly
similar to what psychologists are telling us today (see the section
of my book Local Government Ethics Programs on <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Bli…; target="”_blank”">Blind

Spots</a>). She says that Plato thought "that unjust people did
not really understand what they were up to, did not act voluntarily,
and were usually so misguided that they really deserved pity. They
suffer from disordered psyches and are tormented by driving desires
and rages that they are not able to satisfy or control.
Irrationality, insolence, uncontrollable desires, aggressiveness,
and sheer stupidity are all, in their way, psychic diseases that
make us unjust, and we do such people no favor at all if we allow
them to continue to live in such a state. ... [T]he unjust person must
be punished and exorcised in order to purify him and the community,
and punishment is the only hope of improvement, though it is also
meant to teach others to avoid the same crimes.” 
 
And she says that Plato took what I would consider to be a
government ethics approach to misconduct, taking motive, and the
idea of integrity, out of the equation: "[O]ne may not consider the
unjust person as a whole but only those traits and acts that are
relevant to decide a given case. Indeed, to look too deeply into the
motives of those who take and get too much might lead to unfairness
in judging." 
 
Vengeance 
I have often criticized approaches to ethical misconduct that are
akin to vengeance, such as pension forfeiture, loss of office, and
jail time. Shklar recognizes the problematic nature of vengeance,
and expresses it well.<ul>

Probably nothing can assuage the sense of injustice as well as
revenge, which is incompatible with justice as it is normally
understood. Moreover, though we tend to experience injustice in
particular in individual instances, justice must of necessity be
general and social in its aims. ... [R]evenge is not detached,
impersonal, proportionate, or rule-bound. It is because of its
disorderly nature that … the law must weed it out. … Neither does
justice wipe the slate clean. Revenge at least equalizes the wrongs
… For most people retributive justice is justice, but it
remains a frustrating substitute for revenge, neither eliminating
nor satisfying its urging.</ul>

Conclusion 
Shklar ended her essay with the following sad observation:<ul>

All public agents are alike in one respect: all have a wealth of
excuses for the resentments they create. … They are usually
invocations of circumstances, unavoidable error, or just a shifting
of blame. Necessity seems to fence them in on all sides when they
are asked to face the injustices for which they are directly or
passively responsible. What their litany of evasions does reveal is
a dreary moral and linguistic uniformity.</ul>

Robert Wechsler 
Director of Research-Retired, City Ethics 
 
203-859-1959

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Summer Reading: Judith Shklar's "The Faces of Injustice"

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