Reflections on Law and Social Justice Robin West, ‘Economic Man and Literary Woman’, Mercer Law Review
Amir Paz-Fuchs
When first approached by the editors of this volume to reflect on a text that was foundational in the development of my thinking on law and social justice, I did not hesitate. Well, that is not completely true - I knew very clearly what would be my first choice - Robin West’s ‘Economic Man and Literary Woman’. I was conscious of the fact that the editors may have been hoping for reflections on the modern classics - Ackerman, Rawls, Nagel, and Scanlon for the philosophically minded; Haley, MacKinnon, and Pateman for the gendered perspective; Edelman, Handler, Piven, Cloward, and Waquant for the critique of modern society’s treatment of the poor, to name but a few obvious candidates. I was given the much-unappreciated gift of time to truly delve into these writings during my doctoral studies, and, unsurprisingly, they found their way into my students’ reading lists today. Their place in the pantheon of law and social justice, in other words, is beyond question. And yet, I hoped that the editors would grant me the opportunity to return to a very different text, in terms of scale and formal prestige. Though Robin West is an extremely well-regarded American legal academic, who has published elaborate and thoughtful discourses in top law journals, this particular text is only 13 pages long and was published in a lesser-known venue.1 And yet, although it was assigned to me as an undergraduate, it has remained with me since. I can still recall not only the intellectual but also the emotional effect it had on me. Never before, or after, did my eyes swell up whilst reading an article in a legal journal. In truth, I doubt that many authors of such articles seek to take their readers through such an emotional journey. Perhaps Professor West didn’t either, but she did so, in this case. I therefore viewed the choice itself of this article as an act of social justice in its own right. A shining David battling it out against the Goliaths, an underdog in form, but not in substance, cartying the potential to light up a storm. I was thus delighted when Daniel Newman responded with enthusiasm to my proposal, and gave me the opportunity to return to this article with fresh (but mature ...) eyes, and to reflect on the path it opened for me.
From my vantage point as a more seasoned academic, I realise now (perhaps more than I did initially) that whilst the argument laid down in the piece struck an important chord with my young self, at least as important was the manner in which the point was driven, its clarity and the style of writing that accompanied it. I’d thus like to touch on all those.
The Premise
This article was published in 1988, a period in which Reaganism and Thatcherism were in the ascendancy; the political and economic ideology which will later be known as neo-liberalism (Harvey, 2007; Brown, 2015) was establishing itself as the new hegemony and academia - including legal academia, was not insulated from these developments. Earlier in that decade, Richard Posner published a book that - with the title The Economics of Justice (1981) - probably would not have been accepted for publication in the first half of the twentieth century. But the time was ripe, and economics was becoming the lingua franca of academia in general and legal academia in particle. The burgeoning field of law and economics sought to offer rational (i.e. economic) analyses to all legal problems, not only in contract, tort, and commercial law but also in family, criminal, and constitutional law.
It is against the background of this groundswell and, indeed, against the groundswell itself, that West writes. And the article’s prescient analysis and importance are even clearer 30 years on. For what is now known as neo-liberalism does not, as many mistakenly think, merely overlap with liberalism, or libertarianism, in its pursuit of free markets and small governments. Neo-liberalism is not about the state leaving the market alone, but rather about activating the state on behalf of the market or, to quote Foucault, to ‘regulate society by the market’ (Brown, 2015: 62). To do so, the state needs to change the way people think and interact. Recently, Wendy Brown referred to this approach as ‘economization’s enlarged domain - it reaches to practices and crevices of desire heretofore unimaginable ... [the] homo economic™ approaches everything as a market and knows only market conduct’ (Brown, 2015: 39).
Here we find, perhaps, the first aspect that, for me, sets apart truly important social justice texts: the willingness to engage not only with the grand questions (the structure of the economy; the place of the family; the role of law) but also with the underlying assumptions concerning human nature. Although they are not only social justice texts par excellence, Leviathan (Hobbes, 1651), Two Treatises of Government (Locke, 1689), On Liberty (Mill, 1859), The Wealth of Nations (Smith, 1776), and A Theory of Justice (Rawls, 1971 rpnt 1999), to give but a few examples, all have that in common - an assertion, and sometimes even an exposition - of what we are (egoistic? generous? communal?) and how we interact (afraid? reciprocal? competitive?). It is not sufficiently recognised that these assumptions, or assertions, form the kernel of the grand philosophical, political, economic, and legal theories. If Hobbes’ person in the state of nature was not so egoistic, uncooperative, and terrified of his neighbour, the thought experiment would have ended differently, perhaps on par with a Lockean, or even Rousseuvian, state. But whilst the writers of the 17th and 18th centuries laidtheir cards on the table, those of the late 20th century simply ‘assumed’ a certain disposition - e.g. that of a neutral, rational, utility-maximising individual (Posner, 1981: 1) who is seemingly genderless and raceless but in effect quite white and male. Posner, for example, explicitly accepts ‘the assumption that people are rational maximizers of their satisfactions’, for, in his view, ‘Is it plausible to suppose that people are rational only or mainly when they are transacting in markets, and not when they are engaged in other activities of life, such as marriage and litigation and crime and discrimination and concealment of personal information’ (Posner, 1981: 1; also Nussbaum, 2000: 346). It is those premises that West sets out to expose and debunk, and against which she offers an alternative.2
West distinguishes between two subsets of rational maximisation. The first is ‘cognitive’, whereas the second is ‘motivational’ (West, 1988: 868). By ‘cognitive’, West refers to one’s ability to know what is best for himself. In contrast, ‘motivational’ rational maximisation refers to one’s relentless pursuit of his or her aims after they have been identified. West’s paper is very ideological and not at all empirical, so it should be of little surprise that she spends almost no time on the cognitive subset. However, on reflection, I can identify that even this omission drew me to the literature on the flaws and failures of the assumptions of rationality. This is somewhat surprising (at least to me), as it suggests that an article’s importance lies not only in the ideas (or even - paradigm) that it successfully and persuasively convey, but also in the gaps it leaves, which turn into windows opened, to the reader for their own personal inquiry.
Luckily for me, this interest was perfectly synchronised with the illuminating and extremely persuasive - indeed, incontrovertible - research that suggests that, in many, many crucial decisions in our lives, we are wot rational utility maximisers. This would include, pace Posner, even the core examples of market transactions, let alone those far removed from it, such as marriage or a decision to discriminate. If we were rational, for example, we would assess the decision to sign up for a pension scheme on the merits and not on the basis of it being ‘opt-in’ (the default position being no pension scheme) or ‘opt-out’ (the reverse default position). And yet, changing the default position increased membership in the scheme by 70% (Ariely, 2009). And if we were rational, we would eat an apple if we were hungry, thought it tasty, and/or considered it nutritious, not on the basis of the apple being cut into slices or put ahead of the chocolate pudding. And yet, as school children and any marketing intern would tell you - these have an effect on decision making.
Brilliant empirical research from (what are now academic) household names such as Amos Tversky and Daniel Kahenman (1987), Dan Ariely (1999), Cass Sunstein and Richard Thaler (2012) has led to the development of a new field - Behavioural Economics (for which two of the above - Kahenman and Thaler, won Noble Prizes in Economics), which not only shatters the presumptions of rationality, but explains why exactly we are ‘predictably irrational’ and, particularly in the controversial nudging policies, what can be done to address our biases.
As noted, West alludes to, and even predicts more than contributes to, this literature, which developed well after her article was published. Her concern is centred on ‘motivational’ rationality, i.e. one’s drive to pursue his or her aims or agenda, with little to no regard for the aims or agenda of others. Moreover, the reason underlying the latter facet is not solely attributed to individual choice, but centrally because one cannot truly know what others need or want. In her lovely turn of phrase, such an individual - the Economic Man - is ‘a rational, selfregarding Hercules, and an empathetic, other-regarding weakling’ (West, 1988: 870). Against this caricature of an Economic Man, West posits a mirror image - the Literary Woman. The literary woman is no Herculean rationalist, for she is multi-motivational and ‘does not know herself... as well as she might’ (West, 1988: 870). But more importantly, for her purposes (and thus - for ours), the literary woman is very capable of ‘knowing’ the joys and sorrows of our friends, family, neighbours, and co-workers. We can join in anger and hurt for the misfortune of others, and we can rejoice and feel the happiness and pleasure in their moments of joy. In short, we can empathise.
This, to reiterate, is West’s core understanding of human nature, from which a theory of social justice must stem. For if she is mistaken, and the economic man encapsulates the true meaning of what it is to be human, then what would be the justification to prescribe, or even encourage, certain behaviours or advance (even through taxation, or ‘nudging’) certain aims and policies in the name of the ‘good life’? If a typical individual is someone who is ‘peculiarly able and peculiarly disabled: he knows everything there is to know about his subjective life, and nothing whatsoever about the subjective life of others’, what role could there be for policies that have a social justice aim in mind?
Luckily for advocates of social justice aims and policies, West fundamentally disputes this portrayal of a person. First, we do not ‘know ourselves’ as well as we think. West emphasises the role of literature, and text more generally, as a conduit towards ‘discovering ourselves’. As a young student and an avid reader, I remember being struck by the truth of those words. How some books seemed to speak about a child who has a very different upbringing, but to me spoke about my relationship with my parents. But more importantly, I found myself caring about the lives of (fictional) individuals whose experiences (as a non-white girl at the turn of the 20th century, for example) will never be my own.
Knowledge (of the Other) through Empathy
Why is one person’s experience, sitting with a book in her living room, snugged up under a blanket, relevant to questions of social justice? Because this literary woman, for West, holds ‘moral promise’. The empathy that one feels towards another, being the only member of a racial minority in the room, a gay person in a homophobic society, is a skill, a muscle that can and should be developed. And it is one that has immense practical implications as well: in an earlier piece, she claims that ‘law at its best can bring about an empathic and loving community’ (West, 1986: 860-861). Moreover, she even goes as far as stating that ‘[t]hegoal of law ... should be to encourage ... empathic intersubjectivity’ (West, 1986: 863, emphasis added).
West explains that this empathy can and should be learned through the literary narrative, through metaphor, to bridge our own, very' different experiences to those experienced by' others. She usefully' refers to Martin Luther King’s description of the effects of segregation: ‘it was as though a curtain had dropped on my selfhood’ (West, 1988: 874, drawing from Oates, 1982: 15). Building these bridges of empathy' is a crucial skill, inasmuch as losing that ability', becoming the economic man, is a dangerous path to follow. Reaching out to each other and understanding each other are what makes a community, and ‘ Without it, we would not crave, much less attain, justice' (West, 1988: 877, emphasis added). In contrast, sensing the danger that lies ahead, she warns that ‘we can surely' become the person posited as the economic man’ (West, 1988: 874). Recently, Zadie Smith (2019) has argued along very' similar lines. She quotes Emily Dickinson’s poem, ‘I measure every' Grief I meet’:
I measure every Grief I meet
With narrow, probing, eyes -
I wonder if It weighs like Mine -Or has an Easier size.
And though I may not guess the kind -
Correctly -yet to me
A piercing Comfort it affords
In passing Calvary -
To note the fashions - of the Cross -
And how they're mostly worn -
Still fascinated to presume
That Some - are like my own -
Smith explains that Dickinson offers the reader ‘the fascination of presumption’. Not necessarily' that our presumptions regarding the trials and tribulations of others are ‘correct’, but rather ‘that our griefs were not entirely' unrelated’.
West’s interest in the psychology of the individual as pitted against the values of a community' is present in an earlier article, in which she juxtaposes Richard Posner’s theory' with Franz Kafka’s writings (!) (West, 1985). There, for example, she discusses Kafka’s ‘The Hunger Artist’ in which the protagonist starves himself, eventually (and tragically) to death, for the amusement or curiosity' of the paying public. According to West, Posner will see no issue here since the ‘loss’ is consensual, a transaction in the marketplace. For Kafka, in contrast, the focus is on the failure of the community to relieve suffering. It is a story' of ‘a breakdown of community and brotherhood, not a legitimate response to a morally satisfactory' state of affairs’ (West, 1985: 410).
In the present article, West concludes with an extremely' moving example of the ability of metaphor to convey' the experience of a survivor of childhood abuse. The section is too long to replicate here, and it is impossible to do it justice through a concise summary'. With those caveats in mind, we can say that, through the metaphor of a shattered-but-reassembled vase that is somehow more splendid than its unblemished twin, the author targets the heart, and not only the mind, of the reader, and brings him or her as close as possible to the narrator’s experience.
This example enables West to introduce the reader, presumably a student of law, to an idea that holds a prominent position in literary circles, namely - that literature, and perhaps - art more generally, has the power to enhance empathy. And such empathy is of particular importance to legal scholars and practitioners, for a significant aspect of their professionalism presumably concerns judging - situations, culpability, behaviour, standards, etc. And the concept of empathy intervenes by suggesting that, to follow a famous aphorism, probably derived from a late 19th-century poem (Lathrap, 1895, cited in AAA Native Arts, 2020) ‘before you judge a man, walk a mile in his shoes’.3 Smith (2019), replacing ‘compassion’ for ‘empathy’ (terminological issues abound in this realm and will take us too far afield), quotes the Columbian author and activist Hector Abad in support:
Compassion is largely a quality of the imagination: it consists of the ability to imagine what we would feel if we were suffering the same situation. It has always seemed to me that people without compassion lack a literary imagination - the capacity great novels give us for putting ourselves in another’s place - and are incapable of seeing that life has many twists and turns and that at any given moment we could find ourselves in someone else’s shoes: suffering pain, poverty, oppression, injustice or torture.
And closer to the present discussion (albeit slightly more difficult to imagine), we find Atticus Finch’s advice to his daughter, Scout, in one of the most famous works of fiction which has at its core a legal drama: ‘You never really understand a person until you consider things from his point of view ... until you climb into his skin and walk around in it’ (Lee, 1960, rpnt 2010, 3.87).
Against Empathy (as Undermining Social Justice)?
It is not that the fundamental argument that West advances cannot be contested. In fact, it has been done so across several fronts.
First, one may ask if it is indeed possible to truly ‘know’ another, even through literature. Martha Nussbaum (1999) takes on this very project in her discussion of Virginia Woolfs To the Lighthouse. She begins with the musings of one of the main protagonists, Lily Briscoe: ‘How then, she had asked herself, did one know one thing or another thing about people, sealed as they were’ (Woolf, rpnt 1994: 79). Nussbaum finds this to be not only an epistemological problem, or one of evidence, but ‘above all, an ethical problem’ for whilst ‘we can never be certain what [others] are thinking and feeling ... we pursue the goal obsessively. Knowledge is a project that draws us to one another, and we cannot bear to let that project go’ (Nussbaum, 2000: 356). But is language, and particularly - literature, a good means towards that end? Strikingly on point (when we think of West’s argument), Nussbaum refers to language as ‘a very imperfect instrument of understanding’ (2000: 358). The reason is that one’s words cannot bedisentangled from his or her personal history. The same phrases can mean very different things when expressed by one person or another, and two people may hear different ideas and different emotions, although they heard the same words expressed. And what of reading? Both (clearly) West and (seemingly) Woolf place great value on reading, in two respects: reading texts and ‘reading’ another. But it is the former, literary’ text that is inferior to the latter. Ironically, this is because West is perfectly right - it is through the literary text that we have a perfect understanding of another’s mind (Rcichmann, 2006: 305). The author, if he or she wishes, can reveal, expose, and shed light on the very' soul of the agents, and we can decide to empathise and engage inasmuch as we wish. Crucially, however, it is one-directional. In real life, our relationships with real people are marred by' scepticism, jealousy, and heightened awareness and self-consciousness. It is against this background that we find that Woolfs discussion of ‘reading’ is more relevant for our purposes.
In To the Lighthouse, Mr and Mrs Ramsey’ are both avid readers of classical texts, but more importantly, in their love for each other they' work hard to ‘read’ one another, to understand each other, ‘learning to read not just statements but also gestures, facial expressions, silences’ (Nussbaum, 2000: 367). This realm of reading - ironically, reading itself being a metaphor - is far more important than the intellectual task, even when it is emotionally’ charged. Martha Nussbaum explains that even when it is done exceptionally well, it achieves a seemingly modest, and yet precious, result: ‘By' working patiently' to defeat shame, selfish anxiety' and the desire for power, it is sometimes possible for some people to get knowledge of one thing ... about some other people’ (2000: 373). This reading of others through interaction, even more than reading others through literature, is where barriers are overcome, and bridges and communities are built.
Second, it can be suggested that the ‘empathy' through text’ paradigm is limited in a different way, which has a strong class element attached. It should not be terribly surprising that, alongside the widening gaps in school funding, a strong link exists between deprivation and (not) reading books (Gleed, 2013; for a historical perspective see Cantwell, 1935). But this does not mean, of course, that only the upper classes learn empathy. In fact, it may' be that the reverse is true (Grewal, 2012). The crucial element within the text lies in its communicative traits. And, as such, it is but one way to communicate distress, joy, anguish, and love, for example. Direct communication - two strangers, neighbours, or lovers sitting on a park bench - can do just as well. Sometimes, for some people, even more. The point is even more salient for law and for legal education. The call to turn to literature ‘does not call upon law students to pass time with disenfranchised people ... in the inner cities’ (Reichman, 2006: 299). Looking to Dickens or Shakespeare runs the risk, in other words, of ‘edifying the profession, while ignoring the anti-poetry’ in our backyard’ (Krakoff, 2001: 1749). I would suggest, therefore, a ‘friendly amendment’ to West who, notwithstanding the emphasis of the piece, does include, at one point, the caveat that ‘Literature is one means by which we can glimpse this truth’ (about who we are) (West, 1988: 870, emphasis added).
A third objection to West’s argument questions whether empathy will truly lead to the ‘right’ approach insofar as social justice is concerned. Recently, Paul Bloom (2017) argued persuasively against empathy (as is the book’s title). He suggests that reliance on empathy may be crucially misguided, on several fronts, as ‘it’s a poor moral guide. It grounds foolish judgments and often motivates indifference and cruelty. It can lead to irrational and unfair political decisions’ (Bloom, 2017: 2). Why is this the case? Bloom makes three main claims. First, empathy is biased: we tend to feel empathy towards people who look like us, have a similar background, similar opinions, or whose life resemble ours. We feel far less empathy towards strangers, towards those who we find frightening or disgusting. The legal implications of empowering this type of empathy have strong historical antecedents and do not require much imagination in this day and age. To give but one example, Henderson (1987: 1613) reminds us that, when arguing in favour of imposing a one-year residency requirement for welfare benefits, it was argued that those newcomers ‘are not our people’ (see also Hoffman, 2011: 251, making the same point). In addition, empathy is innumerate, and individualistic, and tends to favour action to alleviate the pains of a single person, who is present, often at the cost of many others, who may be absent (also Hoffman, 2011). Finally, empathy could be ‘weaponised’ - populists and demagogues can, and do, use empathy to mobilise hatred towards others, by suggesting that ‘our pain’ (see the first point) is attributed to ‘them’ (see also Henderson, 1987: 1585).
One may add to Bloom’s argument that, even when it isn’t taken to the weaponised extremes, empathy could work in a manner that undermines social justice. Thus, one could imagine the empathy effects regarding a NIMBY argument by wealthy property owners who object to moving a centre for children with serious learning and behavioural difficulties to their neighbourhood. Policy makers may be far more inclined to empathise with this argument when contrasted with the case made by parents and carers for the children, whose worlds are very distant to those making the decision. Even more generally, Hoffman (2011, presenting a strong advocacy of the role of empathy in general and within the pursuit of law and justice in particular) concedes that generating strong empathy for victims of crime could lead to undermining procedural and substantive rights for the accused and the convicted (also Henderson, 1985).
A fourth, and final, objection to West’s emphasis on empathy is that, even where empathy could lead to just policies, does it truly motivate us to act? There seems to be an implicit consensus, on which West relies, that such is the case. Martin Hoffman, who has decades of experience researching empathy, suggests that since it is difficult to empathise with a group, it is much easier to generate empathy with an individual, and then, ‘realizing others are in the same boat, generalizing one’s empathy to the group’ (Hoffman, 2011: 236; similarly Massaro, 1988: 2105). He offers the examples of Harriet Beecher Stowe’s Uncle Tom’s Cabin as a book that was extremely powerful in changing minds towards abolishing slavery; and of A Sportsman’s Notebook (1941, 1992) by Ivan Turgenev, which was instrumental in motivating Tsar Alexander to abolish serfdom and bring about emancipation in the mid-nineteenth century.
And yet, notwithstanding these examples, and whilst empathy towards others may lead us to change our behaviour and even take action, it is clearly in the contention that this is always, or even routinely, the case. First, the move from empathy with a fictional individual to action to alleviate the predicament of a relevant group is a complicated one. In fact, Jean-Jacques Rousseau (1758, cited in Serpell, 2019) made the point that:
In giving our tears to these fictions, we have satisfied all the rights of humanity without having to give anything more of ourselves; whereas unfortunate people in person would require attention from us, relief, consolation, and work, which would involve us in their pains and would require at least the sacrifice of our indolence.
Moreover, it is not clear that even witnessing real-life atrocities would generate empathy (Henderson, 1987: 1582-1583). Bloom makes this point as well, citing a letter from a woman who complained of the neighbouring Nazi concentration camps. She wrote: ‘One is often an unwilling witness to such outrages. ... I request that it be arranged that such inhuman deeds be discontinued, or else be done where one does not see it’ (2017: 72). As Namwali Serpell (2019) concludes: ‘If witnessing suffering firsthand doesn’t necessarily spark good deeds, why do we think art about suffering will?’.
There are a number of judicial analogies to this literary phenomenon. On the one hand, we find the argument that it was judicial empathy that moved the court in the American school segregation case of Brown v Board of Education to deem the practice unconstitutional (Henderson, 1987; but cf Massaro, 1988: 2108). Another example comes from the employment realm, where the famous ‘Brandeis Brief managed to persuade the US Supreme Court to uphold a law that made it illegal to employ female workers in precarious occupations for more than 10 hours a day.4 Morton Horwitz (1992: 209) explains the importance of the ‘Brief:
Containing two pages of legal argument and ninety-five pages of sociological and economic data about the conditions of working women's lives in factories, the Brandeis brief, by highlighting social and economic reality, suggested that the trouble with existing law was that it was out of touch with that reality.
These are, indeed, important examples of the judiciary’s willingness to engage, understand, and empathise with the lives of some claimants and to translate this understanding into a practical resolution that advances social (racial, economic) justice. And yet, there are other examples in which courts, in the Rousseauvian vein, noted above, acknowledge the plight of claimants, but that is, more or less, all that they do. Taking the realm of employment law as an example, we find that the court was cognizant that the current, precarious situation of agency workers could result in ‘a significant move in the direction of the casualisation of labour and the growth of a two tier workforce [that] may create social injustice and a festering sense of grievance’ (James, 2008: 60). And yet, notwithstanding this show of understanding and empathy, the decision to deny the claim, and thus to deny workers statutory rights, stood firm.
Salvaging West’s Argument towards Social Justice in Law
So, ifWest’s central argument regarding the role of empathy in life and in law does not withstand scrutiny, why should it be considered a fundamentally important text for those interested in law and social justice? I would argue that it should, for two reasons: first, because we have it within our power to amend the central argument and restore its role in law and in the pursuit of social justice. Secondly, because there is more that the article has to offer, not only with respect to the process of law but also to way we perceive the political idea of law itself.
An important contribution of West’s article for a student of the law is one that is simultaneously modest and radical. It is modest because it does not, necessarily, require adhering to a particular perspective - that of the victim of sexual assault, of the black man who fears to speak out, of the gay woman who fears to come out. But it is also radical, because it suggests, albeit implicitly, that the law can and should take account of these perspectives. It suggests, in other words, that the pseudo-rational perspective of law is not the only one that is available.
We understood why empathising with a particular individual’s viewpoint may be hazardous, even disastrous, in law and policy. We may be adopting the ‘wrong’ person’s viewpoint, and replacing it with our own. But West should not be viewed as advocating this peculiar position. Instead, she highlights the fact that the traditional, analytic understanding of law implicitly (crucially, never explicitly) does that very thing: adopts a viewpoint, seemingly without the need to justify it. West thus can be understood to argue for the incorporation of additional viewpoints, additional voices, in the legal process.
Even if we are slightly less attracted to the prospect of walking in someone else’s shoes or wearing their skin, it is not at all superfluous to advise one who is empowered to judge, to truly take into account a multiplicity of views; to truly see reality through the eyes of all the characters. Rejecting ‘empathy’, Hannah Arendt (2006: 237) argued in favour of considering a given issue from different viewpoints by making present to my mind the standpoints of those who are absent; that is, I represent them. This process of representation does not blindly adopt the actual views of those who stand somewhere else, and hence look upon the world from a different perspective; this is a question neither of empathy, as though I tried to be or to feel like somebody else, nor of counting noses and joining a majority but of being and thinking in my own identity where actually I am not. The more people’s standpoints I have present in my mind while I am pondering a given issue, and the better I can imagine how I would feel and think if I were in their place, the stronger will be my capacity for representative thinking and the more valid my final conclusions. ... The very process of opinion formation is determined by those in whose places somebody thinks and uses his ownmind, and the only condition for this exertion of the imagination is disinterestedness, the liberation from one’s own private interests.
The final sentence must lead towards John Rawls’s idealised veil of ignorance, which is nothing if not a radical exercise in fairness and social justice: to what extent do I think that my position of privilege is justified? Would I feel the same way if I were in another person’s position? Note: I do not have to inhabit the person, only the position (Serpell, 2019). This argument thus suggests that multiple viewpoints can be integrated into the law. The law can include them and take them into account.
Notwithstanding the importance of this perspective, West’s article had an even more profound effect on this young reader, far beyond the concrete implications within the social justice narrative and analysis. The possibility of integrating viewpoints beyond those which the court chose in any particular instance suggested to me that the neutrality, or analytic coherence, projected by the courts on a daily basis, have very shaky foundations. Instead, lawyers, legal academics, and judges are routinely choosing to embrace a particular viewpoint, perspectives or paradigms, and the role of the critical reader and thinker is to refuse to take any of those for granted. Instead, she must unveil the premises, ask who they serve, and offer alternatives. The call for social justice in law should not, therefore, be a call for ‘unguided emotion’ but rather a ‘call to context’ which ‘counsels against complacency’ (Massaro, 1988: 2126).
Notes
- 1 It was, however, reprinted in the volume Law and Literature (Lenora Ledwon -cd, 1996, rpnt2015).
- 2 To be precise, West took on this approach in a more developed manner even earlier, when she took on Richard Posner’s ‘simplistic and false psychological theory of human motivation’ (West, 1985: 385).
- 3 Emphasis added. The comedian Steve Martin added his own spin on this suggestion, saying: ‘Before you criticize a man, walk a mile in his shoes. That way, when you do criticize him, vou’ll be a mile away and have his shoes’.
- 4 Muller v Oregon (1908) 208 US 412.
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