The ongoing American dilemma
When Americans pledge their belief in the ideal of âjustice for all,â do they really mean it? Why do they often fall short of this ideal by passively toleratingâor even actively defendingâvarious forms of discrimination on the basis of race, national origin, religion, gender, and sexual orientation? Is it a lack of will or hypocrisy? Or, is it because they defend justice for themselves and the particular in-groups to which they belong while ignoring, tolerating, or even supporting discrimination and injustices that affect âothersâ in different out-groups? When answering these questions, two things are important. First, we must pay close attention to how terms such as âjustice,â âall,â âus,â âwe,â and âthemâ are defined. And second, these questions draw our attention to a deeply-rooted dilemma in American politics: pledges to defend justice for all co-exist with beliefs and practices that defend justice for members of particular in-groups (i.e., âusâ) while remaining indifferent or opposed to justice for non-members (i.e., âthemâ).
There are several ways to understand this dilemma. First, it might simply be a gap between our universally-held ideals and our concrete practices. The ideals of democracy, âlife, liberty, and the pursuit of happiness,â equal treatment under the law, and âliberty and justice for allâ are often described as part of the âAmerican Creedâ that binds Americans together. At the same time, however, slavery, segregation, and various forms of discrimination on the basis of race, gender, sexual orientation, or national origin violate those ideals. This contrast between abstract ideals and concrete practices is described as a âprinciplesâpracticesâ gap (Myrdal 1944, Huntington 1981), a gap that can be closed by a more self-conscious collective effort to eliminate prejudicial attitudes and discriminatory laws so that the U.S. finally enacts policies that truly reflect its professed ideals.
Second, it might be a matter of wilful double-standards. According to the âracial threatâ and âsymbolic racismâ theories, many white Americans invoke ideals of justice for all but simultaneously consider African-Americans and Latinos as âthreatsâ to their social, economic, and political status. Consequently, they oppose policies that are designed to eliminate racial discrimination and inequality (Giles and Buckner 1993, Tarman and Sears 2005). So, when white Americans invoke ideals of liberty and justice for all, they selectively apply them to protect, reinforce, or rationalize their in-groupâs social status, economic resources, and political power while denying equal rights, resources, and access to opportunities to out-groups of racial âothers.â If this is the source of the dilemma, gently reminding white Americans to live up to their professed principles will not close the practicesâprinciples gap because racial âothersâ are ânot one of us.â
Third, the dilemma may be a symptom of a deeper contradiction: the ideal of justice has always co-existed with injustice, inequality, slavery, discrimination, and exclusion (Shklar 1991). Rather than treating the dilemma as a practiceâprinciples gap or manifestation of double-standards, it may be that justice, liberty, and democracy for âusâ depends upon and even requires the exclusion, marginalization, and subordination of âthemâ (Mills 1997, Olson 2004). Put differently, there are always people that are systematically designated as a class of âothersâ who, as a result, are marginalized, subordinated, and denied equal rights precisely because they are not seen as full-fledged members of âus.â Because they are beyond the boundaries of âus,â they simply donât count or matter, so their needs, rights, and well-being can be ignored by powerful and privileged in-groups (Opotow 1990, Theiss-Morse 2009). As such, the principles-practices gap is not merely a failure to live up to higher ideals nor is it an aberration. Rather, there is a deeper contradiction through which certain classes of people are excluded from equal standing within the political community because they are denied social and moral equalityâthey are not âone of us.â If this is so, urging Americans to close the principles-practices gap is insufficient. Instead, it requires a re-examination of âusâ and âthemâ so that members of out-groups who were subjected to discrimination, injustice, and exclusion are included, tolerated, accepted, and granted equal moral standing as members of a civic community and first-class citizenship as members of a political community. However, such an effort continually conflicts with the tendency to define the âusâ of the American political community by privileging in-groups over out-groups and ârealâ Americans over âothersâ that do not fit the norm.
Competing notions of justice: a preliminary sketch
These different explanations of the American dilemma illustrate how conceptions and practices of âjusticeâ are entwined with different definitions of âus.â In this book, I will investigate the tension between a narrow, exclusive notion of âjustice for just usâ on one hand, and a more expansive, inclusive notion of âjustice beyond just usâ on the other.
âJustice for just usâ
The notion of âjustice for just usâ defends and applies the norms and principles of justice only to fellow members of oneâs in-group. It draws the circle of âusââand therefore the boundaries of membership, moral concern, reciprocity, and mutual obligationâin a constricted way that prioritizes justice only for those who are within its boundaries. Whether âusâ is defined in terms of geographic locale, socio-demographic status, or identity, members not only defend justice for their in-group but are indifferent or hostile to the interests, well-being, and justice for members of various out-groups who are seen as different, âother,â and perhaps even threats. Moreover, various in-groups and communities are thought to be discrete, independent, and separate from each other, thus denying or minimizing any interdependencies or connections between groups while establishing clear, bright lines that separate âusâ from âthem.â As such, in-group members feel a positive obligation to defend justice for fellow members but no obligation to defend justice for different and distant âothersâ in out-groups because âothersâ are âoutside the boundary in which moral values, rules, and considerations of fairness applyâ (Opotow 1990: 1). Injustices that affect out-groups do not elicit moral outrage because the norms of justice only apply to âus,â not to âthem.â
To illustrate, consider a well-known African-American saying: âWhen white people say âJustice,â they mean âJust us.ââ1 This aphorism expresses a perspective shaped by the historical legacies of slavery and racial segregation as well as contemporary experiences of racial discrimination such as racial profiling. It invokes and takes seriously the ideal of justice, but simultaneously recognizes that justice âfor allâ co-exists with exclusion, segregation, and discrimination that divide âallâ into racial sub-categories of âusâ and âthem.â Historically, when white Americans invoke the ideal of justice and pledge allegiance to âjustice for all,â they implicitlyâand sometimes explicitlyâdefend justice for fellow white Americans while denying it to African-Americans who are seen as âotherâ and âone of themâ rather than âone of us.â Thus, âjustice for allâ in theory translates into âjustice for just usâ in practice.
1 Charles Mills includes this aphorism in the frontispiece of The Racial Contract (1997). This aphorism is an example of a more general difficulty of securing âjustice for allâ in increasingly diverse, fragmented, stratified, and unequal societies. Under such conditions, David Miller concludes, âthe scope of distributive justice tends to contract so that people become indifferent to the treatment given to those outside their groupâ (1999: 262â3). This reinforces âjustice for just us,â where justice applies within but not beyond the boundaries of oneâs in-group. Under conditions of inequality and diversification, the boundaries of oneâs in-group are defined by comparison and opposition to socio-demographically different outgroups. And whether from outright malevolence, self-interest, or indifference, the same people who pledge their support to âjustice for allâ as an ideal defend justice for themselves, their fellow in-group members, and those socio-demographically similar to themselves but simultaneously fail or refuse to defend justice for those defined as âoutsiders,â socio-demographically âdifferent,â or âthem.â This constricted view of justice is magnified when goods, resources, and opportunities areâor appear to beâscarce and open to competition. When issues of power, privilege, and inequality are considered, members of powerful and privileged in-groupsâwhether they are dominant on the basis of class, race, ethnicity, gender, and/or religionâdo not consider members of out-groups as their political, social, or moral equals, and are therefore less likely to care about their treatment. They ignore, or even deny, the claims of justice made by âothersâ because zero-sum competition takes over, and each group defends itself against the real or perceived threat represented by the other: gains for one are seen as losses for the other, and vice versa (Kinder and Sanders 1996).
âJustice beyond just usâ
By contrast, the notion of âjustice beyond just usâ defends and applies the norms and principles of justice across the boundaries of âusâ and âthem,â in-group and out-group. âJustice beyond just usâ draws a wider circle of moral concern so that in-groups and out-groups are either reconceived as equal members of a larger political communityâa larger âusââor are seen as overlapping and interconnected so that members of in-groups and out-groups are bound together by shared norms of reciprocity, mutual interdependencies, or even mutual interests. At a minimum, âjustice beyond just usâ recognizes that individuals remain members of various local communities and in-groups but prevents them from securing justice for themselves by denying it to distant and different others. More positively, âjustice beyond just usâ blurs the lines between sub-groups and acknowledges that individuals are members of multiple groups and communities that are mutually overlapping and interdependent. Even if individuals do not share socio-demographic characteristics and beliefs, they may nevertheless be united in a larger âusâ as citizens who share certain principles, ideals, or even a shared fate. As citizens of a national political community, members of in-groups and out-groups nevertheless have mutual obligations to defend justice for each other. Justice is not for just âus,â but also for âthem.â
To illustrate, consider the message conveyed by a sign displayed in courthouses around the U.S.: âOur hope for Justice is Just Us.â This sign reminds potential jurors that justice applies to all fellow citizens, even those who are socio-demographically different. It reminds citizens that their duty as potential jurors is to be impartial, practice equity, and deliberate together on the basis of facts rather than biases to render a verdict. They must, as citizens, extend due concern and respect for defendants as fellow citizens and apply the facts of the case to the law in question. After all, if they were defendants whose fate was in the hands of a jury of their peers, they would expect the same.
This poster recalls Alexis de Tocquevilleâs favorable observations regarding the democratic and educative function of juries. The jury, Tocqueville states,
imbues all classes of people with a respect for the thing judged and with the notion of right ⌠It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged ⌠By obliging men to turn their attention to other affairs than their own, it rubs off the private selfishness which is the rust of society (1990 [1831] Vol. I: 284â5).
Juries function as mini-democracies in which average citizens cease to be selfish creatures and, instead rise to the challenge of careful, measured deliberation, and respect for the rule of law to apply principles of law in a fair and impartial manner.
U.S. history, however, offers ample evidence of gaps between the principles and practices of justice. So, we return to the dilemma: how can the phrase âwhen white people say âjustice,â they mean âjust usââ square with the reminder that âour hope for justice is just usâ? It could be that we are describing a variation on the âis/oughtâ dilemma: âjustice for just usâ reflects how individuals actually behave, while âjustice beyond just usâ represents the ideal to which individuals ought to aspire. Alternatively, it could be that we are describing two contrasting notions of justice that hinge on different definitions of âus.â