RHETORIC, LAW, AND JUSTICE
Thomas P. Crocker
University of South Carolina School of Law
How does rhetoric critique, alter, create, or illuminate the relationship between law and justice?
What does Justice have to do with law? Justice Holmes famously quipped that “I hate
justice . . . I know that if a man begins to talk about that, for one reason or another he is shirking
thinking in legal terms.”i As a pedagogical matter, few law school courses contain the term in
their titles, and even fewer focus on the concept, its meaning, or its applications. Justice is a
topic for philosophers or policy makers, not lawyers and judges. Beginning with Plato, questions
concerning Justice may require theories of the orderly arrangement of the state or of the soul, not
theories of law and its subjects.
Perhaps Justice may not be the subject of law, but rather its goal (telos). As a goal,
Justice is many things, albeit related as if by family resemblances. Justice is found in legal
process administered fairly, in substantive rules protecting liberty and equality, in corrective
settings redressing harms, in (re)distributive rules regarding benefits and burdens, and in
judgments assessing culpability and punishment. Thus, when we speak of due process, equality,
fairness, liberty, we speak of the many aspects of Justice appearing in different guises in
different circumstances. If this is true, then Justice is nowhere visible in law though everywhere
immanent—a kind of legal spectre.
Justice is an image of law, however. The Roman goddess Justitia is frequently
represented as blindfolded, holding scales in one outstretched hand and a sword in the other.
Justice is often represented on or at sites of legal practice. The frieze on the front façade of the
U.S. Supreme Court declares “Equal Justice Under Law.” Justice must have some relation to
law. Might rhetoric illuminate that relationship? Understood in part as a way of making claims
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visible before the law, rhetoric calls attention to the underlying importance of Justitia’s
blindness, and of the ways that we gain entry to the law. Before Justice can appear there must be
a claim—a wrong perpetrated, a distributive imbalance, some social discord—that calls attention
to a state of affairs, drawing it into a legal frame.
It is on the site of the visible field that we see injustices needing redress, that we discern
rules to follow, that we project normative conceptions of how our shared world should be seen.
Such seeing is the necessary condition for making claims of Justice, for law is a passive
enterprise awaiting claims to be brought rather than seeking issues to resolve.ii By focusing on
the visual field, I do not mean to neglect, for instance, the importance of the aural—the silences
and speech of law. Indeed it may appear that when invoking the concept of “claims of justice”
that one should focus on the word, on speech, on propositions, and on the linguistic utterances
through which legal claims are made. This thought is undoubtedly true, in part. But by focusing
on our ability to see claims of justice in the broadest sense in which one can have a view or
vision of justice, the conversation of justice is conditioned by our capacity for attention. Seeing
is itself a way of organizing our bodily responses to the world, and thus is not a matter of passive
reception, but of active engagement in producing a world that we inhabit and to which we attend.
Attention involves the body in the direction of a gaze, in the assumption of a physical posture or
bearing (leaning forward to listen to an argument), and in the gesticulations that accompany
language (the judge’s striking a gavel, the witness pointing to the accused). Before a legal
argument can be heard, before a claim can be made before a court, an appearance must be made,
a claimant must become visible before the court, even if the form of appearance is the discursive
filing of papers. Attention can thus also be a matter of discourse and dialogue about those topics,
those words, and those concepts to which we attend, and attention is made possible in its relation
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to linguistic articulation. Although we may encounter others through the linguistic traces they
leave, the degree to which we encounter embodied others in public spaces is first a matter of
directing our attention. Thus, the moment prior to the dialogic encounter is the moment of
seeing, the moment where another person is recognized and figured as subject of attention. So
not only are seeing and attending matters of embodiment, but also matters of language.iii
It might appear too that by focusing on seeing, I focus on the individual who stands at a
critical remove from the world perceived. Seeing, after all, is the practice of the spectator. Yet it
is not the spectator to whom I attend, but the active participant. Actions and responses to the
world, to other persons, depend first on the ability to see and attend to them; thus, using the
metaphor of seeing to stand for all the other ways of perceiving and orienting in the world, I
want to suggest that a “way of seeing” is a way of comporting oneself that is temporally prior to
(though not independent from) modes of articulation. A way of seeing makes visible particular
features of a shared world on which attention can be focused, whereas that which we cannot or
do not see does not arise as something that is a possible matter of concern for us. “Us” and “we”
throughout this discussion refer to the community by which seeing becomes possible. The active
participant is one whose identity depends on the community of others from whom one is
differentiated and yet to whom one is connected.
Justice is grounded in the practices that form the sight and insight of judges, legal
practitioners, legislators, legal scholars and other legal officials. On what kinds of claims will
judges be focused? In what shape or in what form must those claims be made? The answers to
these questions largely depend upon what the relevant actors are willing to look and see. But
oddly, if I am right that so much depends on what one is willing and able to see, so much of legal
and political theory depends on relative states of blindness: first principles decided behind a
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veil; first principles found in an originating state of nature, blind to the distributive issues of
complex social interaction; the primacy of judicial insight through carefully constrained, even
blindfolded, sight. Because of the centrality of the connections between seeing and responding
to claims of justice, and because of the unavoidability of some forms of blindness, the
conversation of justice always occurs in the tension between vision and blindness.
This tension is manifest in the drama that attends legal contestation. Two adversaries each
deploy discursive tools seeking to shape how a judge sees the issue, to craft an understanding of
a rule, to determine a particular judgment.
A judge or Justice’s organizing vision, which
provides a narrative account of particular provisions, and contributes to broader conversations of
constitutional culture, determines substantive outcomes and shapes the boundaries of social
life.iv There is a tendency in legal theory to concentrate critical inquiry on the moment when a
judge decides a case—a moment that occurs after claims, issues and particular aspects have been
made visible.
Although Justitia stands for more than the judicial decision, the fact that
representations of “Justice” blindfolded with paired scales frequently adorn court buildings
indicates the strong public identification of law and justice with judgment, perhaps more so than
with interpretation. Both involve the rhetoric of vision and blindness.
For example, the meaning of the Equal Protection Clause is generally not determined by
an interpretation of the clause’s textv or an “interpretation” of the Fourteenth Amendment, but
rather by the way in which the Supreme Court is willing to look at a problem arising under the
Equal Protection Clause. The first interpretive task the Court confronts in an equal protection
challenge is the task of determining how closely and how broadly it will look at the harm
alleged.vi It calls this doctrinal approach “tiered scrutiny.” How intensely the Court looks, the
way in which it focuses its vision, determines substantive outcomes. A classification strictly
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scrutinized leads the Court to look exceedingly closely, and with utmost care, almost inevitably
leading to a conclusion that the classification is unconstitutional,vii whereas quite the opposite
usually follows from rational basis review, a kind of minimal “looking.”viii Levels of scrutiny
guide not only how the Justices see the specific challenge before the Court, but also how they see
the challenge within a broader constitutional context.
After determining how narrowly to focus a court’s vision, the second interpretive task of a
court is to choose—even if only implicitly—a principle by which to provide equal protection of
the laws.
One candidate is the “anti-discrimination” or “anti-classification principle.”
Its
primary inquiry is determining which classifications of persons (e.g., race or sex) are suspect.ix
Such suspect classifications raise a presumption that their use—by favoring or subordinating one
class over another—violates equality. The focus of this principle is on neutrality—any use is
suspect no matter the motive or purpose in employing the classification.
By contrast, another
interpretive principle animating equal protection doctrine, is the anti-subordination principle.x
This principle begins with a healthy nod to the historical purposes of the Fourteenth Amendment
and sees its role as eliminating the use of race and other classifications where their use achieves
or furthers the creation and maintenance of a subordinated class of persons. The choice between
principles is one that itself set within a rhetorical hermeneutics. Each is located within a cultural
and historical background tracing back to Justice Harlan’s dissent in Plessy v. Ferguson. Each is
deployed in legal-political debates over the role of policies such as affirmative action, and each is
very much dependent upon what facts of social life are visible.
When we examine the relation of Justice to law we discover a tangled web. When looking
at one example from U.S. constitutional practice, we discover that the Court’s shifting vision
drives substantive outcomes. When the Court is willing to look searchingly at situation and see
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the perhaps hidden structural harm, then it intervenes and attempts a remedy. A cursory look
produces an opposite result. If the Court is not willing to look closely at the claims of structural
subordination, instead eschewing all classifications under the guise of neutral colorblindness,
then the Court will not see a justification for adopting a remedial role in the particular domain.
Although the texts of the decisions in these cases are presented as interpretations and
applications of the Equal Protection Clause, what drives the judicial doctrine here is less the
product of interpretation and more a product of the scope of the Court’s vision in applying the
constitutional doctrine. Willingness to attend to particular features of social structure and reality,
however, is itself connected to views about the purpose of equal protection doctrine and the
judicial role in enforcing equality norms. At stake is how the Court envisions the reach of
constitutional norms into more deeply embedded social structures. Calling attention to these
structures is the presumptive role of rhetoric.
Rhetoric’s role of attending is what also enables us to take responsibility for our own
actions and those of others taken in our name. To the extent that Justice is connected to acts of
judgment, then Justice is not only the institutional prerogative of judges. Under a popular
sovereign, it is the prerogative of all. Even in the context of judging, Justice requires others to
call attention to situates demanding redress. The Judge does not act alone. We are incapable of
bringing claims before the law if we remain blind to injustices, unable to see relevant wrongs and
social structures needing redress. Rhetoric, as a way of calling attention, is also a call to
responsibility. As Hannah Arendt suggests, blindness and acceptance of “lesser evils” prevents
us from “thinking and judging instead of applying categories and formulas which are deeply
ingrained in our mind, but whose basis of experience has long been forgotten and whose
plausibility resides in their intellectual consistency rather than their adequacy to actual events.”xi
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The presumptive role of rhetoric is making visible and prodding thought, without which Justice
has no relation to law.
i
Letter from Oliver Wendell Holmes to Dr. Wu, in OLIVER WENDELL HOLMES: HIS BOOK NOTICES AND
UNCOLLECTED PAPERS 201 (H. Shriver ed., 1936).
ii
Contrast Kafka’s portrayal of Justice as having “wings on her heels . . in motion,” turning Justitia into the goddess
of the Hunt. FRANZ KAFKA, THE TRIAL 145-46 (Breon Mitchell trans., 1998).
iii
This thought is closely tied to Wittgenstein’s emphasis on seeing and grammar: e.g., “You have a new
conception and interpret it as seeing a new object. You interpret a grammatical movement made by yourself as a
quasi-physical phenomenon which you are observing. . . . But there is an objection to my saying that you have made
a ‘grammatical’ movement. What you have primarily discovered is a new way of looking at things.” LUDWIG
WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS, trans. G.E.M. Anscombe, § 401 (1958).
iv
Writing in particular about relations to past legal cultures, Bruce Ackerman observes, “the way judges construct
the American relationship to the deep past is not a matter that any of us can take lightly: the things that they allow
themselves to see control, sometimes dramatically, what all of us can do in the here and now.” 1 BRUCE
ACKERMAN, WE THE PEOPLE: FOUNDATIONS 38 (1991)
v
“[N]or deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1.
vi
Tiered scrutiny is not without its detractors on the Court as exemplified by Justice Stevens’s repeated criticism of
this method. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2798 (2007) (Stevens,
J., dissenting) (“The Court’s misuse of the three-tiered approach to Equal Protection analysis merely reconfirms my
own view that there is only one such Clause in the Constitution.”)
vii
But see Grutter v. Bollinger, 539 U.S. 306, 344 (2003) (concluding the University of Michigan’s race-conscious
admissions policy satisfies strict scrutiny because it took several individualized factors, including race, into
account).
viii
But see Romer v. Evans, 517 U.S. 620, 626-36 (1996) (holding a state constitutional amendment did not satisfy
rational basis review because the only credible motive for the amendment was animus toward homosexuals and
bisexuals).
ix
Paul Brest, The Supreme Court 1975 Term, Foreword: In Defense of the Anti-discrimination Principle, 90 HARV.
L. REV. 1 (1976).
x
See Owen Fiss, Another Equality (Social Groups and the Equal Protection Clause), 2 ISSUES IN LEGAL
SCHOLARSHIP 1, 3 (2004)
xi
Hannah Arendt, Personal Responsibility Under Dictatorship, in RESPONSIBILITY AND JUDGMENT 39 (2003).