West on Ideas about Justice in Legal Thought

Robin L. West, Georgetown University Law Center, has recently posted her 2003 article Re-Imagining Justice.  It was published in the Yale Journal of Law & Feminism, Vol. 14, 2003.  Here's the abstract:

What do we mean by legal justice, as opposed to distributive, or social, or political justice; what is the justice, that is, we hope law promotes? What is the justice that lawyers and judges, peculiarly, are professionally committed to pursue? What is the virtue around which, arguably, this profession, and the individuals within it, have defined their public lives?

Justice – and more particularly legal justice – is a badly under-theorized topic in jurisprudence; perhaps surprisingly, there is little written on it. The paucity of writing of course has a history. It can be traced to the turn of the last century – formative years of legal pedagogy and legal curriculum – when legal formalists and legal realists, who disagreed on virtually everything else regarding law, oddly enough agreed on the need to sever law from moral philosophy and more generally from high culture. Formalists, so as to render law autonomous, deductively pure, "scientific," and resting on its own bottom, so to speak, and realists, so as to tie law to the prestige, aspirations, and methods of the then nascent but ascending social sciences. Both realists and formalists, albeit for different reasons, sought to disassociate law from the demands of religion, morals, or culture, generally from the Toquevillian aristocratic norms within which law had been nested in the pre-Classical era. Justice, the great formalist Christopher Langdell thought, was not a fit subject of thought for a rigorous and professional and scientific law school curriculum. Oliver Wendell Holmes, the father of legal realism, quite famously, was even harsher. "I hate justice," Holmes wrote. "I know that if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms." At least in the legal academy, we have indeed taken the Holmesian admonition to heart. Fearful of appearing sentimental, childish, or, worst of all, ignorant of the law, twentieth century lawyers and legal scholars, with only a few exceptions, have forsook the work of elucidating the concept of legal justice.

Holmes and Langdellian skepticism notwithstanding, one can quite easily discern a conventional, and largely uncriticized, turn-of-the-century understanding of legal justice, inside the academy and the profession. It finds oratorical expression in law day and graduation day speeches, in the major unspoken premises of countless conventional legal arguments, and in some, although again not much, jurisprudential scholarship. That conception – call it the dominant or conventional conception-I will argue below, is seriously flawed. More specifically, I want to suggest that it is seriously flawed in a way that directly and negatively affects feminist and progressive efforts at achieving political reform. Feminists and progressives need to take up the task of criticizing our conventional understanding of legal justice. More importantly, we need to take up the task of crafting alternatives.