THE SENSE OF JUSTICE

Vol. 17 No. 2 (February, 2007) pp.109-112

THE SENSE OF JUSTICE: EMPATHY IN LAW AND PUNISHMENT, by Markus Dirk Dubber. New York: New York University Press, 2006. 224pp. Cloth. $40.00. ISBN: 0814719732.

Reviewed by Debra S. Emmelman, Department of Sociology, Southern Connecticut State University. Email: emmelmand1 [at] southernct.edu.

What is the “sense of Justice”? What is it not? How has the concept, correctly or incorrectly, been invoked in American Law? What is its specific nature or form? And what role does the sense of justice play in American penal law? These are the questions that Markus Dirk Dubber addresses in his book, THE SENSE OF JUSTICE: EMPATHY IN LAW AND PUNISHMENT.

According to Dubber, the sense of justice is not vengeance. Nor is it benevolence. For that matter, the concepts of “procedural justice,” “distributive justice,” or even “just deserts” appear to have little or no place, at least not in this particular exposition. Instead, the sense of justice is defined as a sentiment, or perhaps better stated, a sensibility about, consciousness of, or empathy with our fellow human beings as human beings equal to ourselves. Moreover, and quite possibly most importantly, it is the capacity to assess whether one person has treated another as an equal as well. It is, in other words, a specific moral form of empathic role-taking.

It should be stated from the onset that this is a very difficult book to summarize. There are far too many interesting aspects, nuances, and ideas to review them all here more than just superficially. Consequently, I am compelled to examine only some of what I perceive to be the key ideas and the most important and interesting discussions in the book. Nevertheless, this volume deserves careful examination. Anyone who values justice is bound to find something in it with which they can relate, and undoubtedly something they will find useful in their own investigations.

Professor Dubber begins his inquiry by first describing the diverse ways in which the concept has been used and abused in American Law. He then takes a largely historical look at previous attempts to account for this idea in American legal discourse. These first two chapters are relatively detailed and clearly relevant to his purpose. However, the remaining chapters take wide ranging excursions into diverse theoretical traditions and constructs which I believe may make the subsequent discussion more engaging to a broader audience of legal scholars, including sociologists, anthropologists, psychologists, and political scientists.

In chapter three, Dubber describes some of the many misconceptions of the sense of justice. These misapprehensions are said to include the ideas that it is a type of moral code or set of ethics, that it is found throughout substantive instances of law (rather than being an abstract and formal attitude), that it is reflexive or instinctual (rather than reflective or [*110] learned), that it is communal (rather than individual), and that it is accessible only to some individuals (rather than a universal capability). On first flush, these latter three misunderstandings may seem to constitute a bit of a paradox: how can one argue that something is learned but not communal and yet universal? Professor Dubber explains this by asserting (not in this order) that the “community” is represented in the sense of justice insofar as people are social creatures who must interrelate with each other, that such capacities are developed through psycho-social processes that may or may not ever fully mature, and that as human beings, we all have the ability to achieve this sensibility. In fact, he maintains in several places throughout the book that this moral capacity distinguishes human beings from the rest of the animal kingdom.

How and why the sense of justice emerges and the more precise form that it takes is elaborated upon more fully in chapter four, wherein Dubber draws on work from moral psychology (including works primarily from the Scottish and German Enlightenments), social psychology (including George Herbert Mead, Gabriel Tarde, Sigmund Freud and others), political theory (primarily John Rawls and Jurgen Habermas), and linguistics (including Jean Piaget, Lawrence Kohlberg, Noam Chomsky and a few others). What I found most intriguing here is how he interweaves these theories in a manner that suggests how diverse systems of human social life converge, and can converge, into the “sense of justice,” again, a uniquely human accomplishment that is the equivalent of achieving moral competence.

In chapter five, Dubber examines the sense of justice in American Penal Law. He organizes his discussion around three aspects of this law. These are its definition (substantive law), which deals with the “why” and “what” of punishment, and the imposition (procedural law) and infliction (penal law) of punishment, which deal with the “who” and “how” of punishment.

Regarding the first, Dubber finds that none of the rationales for punishment reflect the sense of justice because they do not encourage identification with the offender and do not presuppose that the offender herself possesses a sense of justice. In essence, they do not promote empathy with the offender as an equal, “reasonable” or “moral” human being. Similarly, the legality principle sets formal constraints on the state’s exercise of its power to punish, and in doing so, is concerned with limiting the influence of vague references to the sense of justice. It is in assessing criminal liability that the sense of justice appears to have the greatest role: judges and jurors assess liability not simply by placing themselves in the offender’s situation but by presupposing that the offender herself possesses a sense of justice in that situation. The question then becomes (in essence) “Would I have behaved similarly in this situation?” or “Would a reasonable or moral person have behaved the same?” If so, the offender is deemed not liable. Otherwise, if not incapacitated in some sense, the offender is considered liable. A notable exception to the sense of [*111] justice maintained in assessments of criminal liability, however, is when the offender is deemed to possess a “depraved indifference,” in which case the offender’s personhood is once again denied.

Dubber finds that assuming the standpoint of justice becomes increasingly remote as one moves from the definition of norms to their imposition and the infliction of sanctions. “With each step the object of judgment is in greater danger of being denied the status of equal person and thus of being removed from the community of justice” (p.137). Regarding criminal procedure, the sense of justice is most closely associated with the jury, which is expected to empathize with both the defendant and the victim, and to assess their conflicting justice claims. Ironically, as occurs in cases of jury nullification, the jury is sometimes blatantly instructed not to empathize with the defendant but instead simply to follow the law. Additionally, Dubber reminds us that less than 10% of criminal cases are brought before a jury and that the legitimacy of the American criminal process is thereby threatened by judges and prosecutors who see no need, themselves, to draw on the sense of justice.

Dubber argues that perhaps no aspect of the penal law lies further outside the sense of justice than the execution of punishment. He finds that, despite 18th century reformers’ calls for greater sympathy and compassion for piteous prisoners, this was a religious rather than a political or legal appeal, and that it waned as soon as prisons were emptied of debtors, who were apparently more sympathetic to middle-class persons than other types of prisoners. Such lack of empathy continues today as increasing numbers of alleged offenders fill our prisons under the auspices of the “War on Crime.”

So here we have it: the sense of justice, a moral form of empathic role-taking that sets us apart from other animals, is apparently available to all but the most mentally debilitated human beings. Yet we find that this sensibility is sorely lacking in the very institution we would most expect to possess it, our criminal justice system.

Dubber provides a thought-provoking analysis of the sense of justice. What I find lacking most in the analysis, however, is a clear explication of the relationship between this social psychological sense and the larger social order. How, for example, has the sense of justice been expressed or suppressed at different times and in different places? And given its general paucity in contemporary society, how might we propagate it? Nevertheless, one cannot expect Dubber to solve all the world’s problems in one small book. Yet it certainly provides a beginning for what could be enlightening investigations into justice.

Dubber’s book is clearly suitable for courses devoted to the study of justice. However, as suggested earlier, it is not an easy read. To digest it fully, one needs to revisit the text on occasions and wrestle with a number of issues. This is an advanced book for advanced undergraduate and graduate students [*112] who can apply serious analytical skills to the material, and which could inspire some scholarly investigations of the subject. I would not recommend it for an undergraduate course in which the students expected an easy read or did not expect to expend considerable effort to understand the material.

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