THE HUMAN PARTY

Artwork by Polly Cancro

The past isn’t dead and buried. In fact, it isn’t even past.

- William Faulkner

When capitalism displaced feudalism as the dominant global economic system, the idea of equality before the law became a principal principle of political communities. Legal equality was meant to assure a level playing field between stronger and weaker, lord and serf, while justice was reduced to an objective application of law, meted without respect for its parties. In theory this is the major historical progress marked by the bourgeois revolutions and the spread of democracy: all individuals are considered equal in social, economic, and political matters.

While the atrocities of capitalism are extensive and incontrovertible, it has offered some positive contributions to human development. The supremacy of capital has developed the forces of production to such an extent that it is now possible, in theory, to fulfill the basic material needs of every person on the planet, a feat perhaps unthinkable at any previous point in history. It is widely argued that capitalism has expanded rights and privileges to a greater segment of the worlds’ population than ever before. Western-style democracy coupled with the free market is still celebrated as the “end of history,” the pinnacle of mans social evolution and the final form of government.

However, for most these principles of material and political equality have been merely nominal. In fact, there is a darker side to this progress, to uniform equality before the law, that must be recognized.

An equal and impartial justice is a violent strike against human individuality. By refusing to recognize any difference in individuals it can be said that such an equality does not recognize anyone as an individual, one who is irreducibly unique. Such a “person” might as well be a number. While juridical equality serves as a legal mechanism to assure an equal distribution of rights and privileges, it also annihilates the inherent singularity of each human life. Equality is not an ideal to dispense with, but an idea of justice based on an equality that denies the existence of individual uniqueness is brutally deficient.

The idea of a social contract is based on this very logic. In the social contract, hypothetical yet identical individuals in a state of nature agree to relinquish a degree of their universal and natural rights in exchange for civil rights afforded by a political community. The state of nature cannot comprehend the life of someone who does not conform to its anthropology, such as an orphan, or someone who is mentally or physically disabled. An abstract and atomized individual has no history, no race, no gender, and no religion. By applying the abstract concept of a static and uniform state of nature to a population that is actually diverse, differences become not only accentuated but incomprehensible.

When based on postulates of comprehensive impartiality and equality, justice effectively is rendered blind. And the personification of justice is generally represented in just this way: we find the Western Lady Justice wearing a blindfold, carrying a sword in one hand and a balance in the other. This notion of a blind justice is often invoked as if an objective perspective external to any historical reality was attainable. But it is precisely this conception of justice that must be problematized.

A similar debate on how to define principles of justice was recently cast into the public forum with Barack Obama’s nomination of Sonia Sotomayor to the Supreme Court. Throughout her confirmation hearings the opposition was heard loudest in objection to Sotomayor’s suggestion that “…A wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Many were quick to argue that empathy, sympathy and a variety of life experiences, while admirable in private, have no place on the bench. President Obama, however, has disagreed with the idea justice should be divorced from the fact that we all approach life with radically different perspectives.

But the orientation I have been describing is not simply one of being attuned to the needs of marginalized groups. It is much more basic in that it, firstly, admits of being a construct in itself, and secondly, takes into account the historical and social context of its birth. There is no such thing as an objective perspective, and to purport to speak from one is tantamount to professing one’s historical ignorance. We must  acknowledge the proximity of history, not as an abstract and inaccessible process, but one that is composed of the daily struggles of the individual, the community, and our civilization.

Two Supreme Court rulings in June, against the 1964 Civil Rights Act in Texas and the affirmative action in the Ricci case in Connecticut, may signal that race is becoming less of a significant issue. It was widely suggested that, highlighted by the election of Obama, we are rapidly approaching a post-racial or colorblind society. Not only are these bold proclamations incorrect but they reveal hopes of a homogenous society. To the contrary - diversity in all its forms is not something to be hidden but celebrated. This is precisely what makes life interesting, what gives it its color. Who would want to have a conversation with someone identical to him or herself? Is this not the epitome of fear of the Other?     

Rather than attempting to show how we are all the same, perhaps we should concentrate on how our differences may unite us and make us stronger. Equality is a necessary but not sufficient condition of jurisprudence. To imagine we can or already have attained a standpoint from which to legislate its perfect protocols is hubristic and dogmatic. To resign our struggle due its imperfect nature would be nihilistic. Real Justice (justice with a capital J) is an infinite ideal to which we must continually strive, but never reach.