The Legalist Paradigm in Moral and Political Thought

Charles Dickens wrote, “In the little world in which children have their existence, whosoever brings them up, there is nothing so finely perceived and so finely felt, as injustice” (1861, 75). He meant that cruelties of various kinds are correctly perceived by children as unjust, because they subject their victims to treatment that is not right. Injustice includes violence, exploitation, unfairness, emotional abuse, and much else besides. It can occur in public, institutional, and intimate settings (the last being the setting to which Dickens's sentence immediately refers). The premise of this article is that we should recover an understanding of justice in Dickens's sense of the term.1 Opposed to this primary and I believe correct understanding of justice is what I call the “legalist paradigm,” a recurrent impulse among political theorists and laypeople to convert questions about justice into questions about what the state should do.2 The impulse is widespread but not ubiquitous, sometimes but not always explicit. Its core tenet is that if a practice is unjust, it should be met with corrective action by the state.3 To call something unjust is to ask for a state remedy. The view often goes beyond this, by making state action not only required but central. My hope is to discourage this framing, to encourage a sense of justice less connected to the need for state supervision and enforcement, and (without encouraging bullying or harassment) to foster a practice of addressing claims of justice directly to other persons and nonstate agents whether or not state involvement is warranted. State action is often associated with enforcement, because we think of force as a potential when not primary means for a state to implement (many of) its decisions.4 Belief that justice requires enforcement—a view I shall call the “enforcement paradigm”—typically lies behind the legalist paradigm. The mistake made by many political theorists and laypeople is to rush from the question “what is just?” to the question “how may justice be secured?” and to dwell on enforcement as a supposedly necessary and appropriate means of securing justice. One aim of this article is to challenge the enforcement paradigm to which the legalist paradigm is typically connected. Enforcement is not identical to punishment, but those who subscribe to the legalist paradigm often view punishment as a necessary response to individual-level injustice. The thought that “the state must do something” is often connected to the view that the state should prohibit and deter individual-level injustice by means of negative sanctions. The legalist paradigm does not imply support for punishment as a matter of strict logic, but the two are often linked in practice. I shall also challenge what I call the “institutionalist paradigm,” the view that justice pertains only to state or nonstate institutions and not to individual choices. I propose that the legalist, enforcement, and institutionalist paradigms all misleadingly truncate justice. Justice concerns what is morally owed to persons, animals, and perhaps other entities by virtue of their moral status and morally relevant interests. (It may concern other matters as well.) We foreclose important questions when we limit justice to certain kinds of agents or certain forms of support. Toward the end of the article, I discuss the idea of restorative justice as an example of an approach that wisely rejects the truncated paradigms by focusing attention where it belongs—on the needs of individuals and on the duty to appropriately protect them from harm. The alternative I propose to the paradigms criticized here is a broader ethos of justice that demystifies the state, decenters enforcement, and upholds both individual and collective agency. Justice encompasses (though may extend beyond) a family of moral duties and moral permissions relating to the interests and status of persons, animals, and perhaps other entities. We should ask what kinds of individual and collective choices demonstrate adequate respect for these values, and how if at all the state should be involved. If we limit justice to only those duties warranting state involvement, we develop a distorted moral vision that risks the vices of punitiveness, permissiveness, and passivity. Though I also criticize the enforcement and institutionalist paradigms, I focus on the legalist paradigm. In challenging this paradigm, I do not seek to advance an anarchist or libertarian view. My aim is not to shrink the scope of legal obligation but rather to recast our understanding of legal obligation and its relation to justice writ large. Sometimes justice requires state action, and sometimes it does not. Justifications of state action require something more than a demonstration of injustice, but such justifications are often (though not I by the legalist paradigm and its I how the legalist paradigm is in in the of and In to something is unjust is to call for state In it is to call for punishment, not by the view is to the legalist In it is to call for corrective action by the state, not their and these in justice to I by to the legalist paradigm from and the idea of restorative justice. how we may and justice in less and in our understanding of the two are for the and to the is the important of justice of the In this article, I them as example in rather than of the legalist paradigm. 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The of justice with enforcement and sometimes the the legalist paradigm. The with the of and about and the legalist paradigm. of the in which we the of and justice from the of is that these are matters which may be the to of justice In these it is that such enforcement or is by the state, not theorists who the legalist paradigm and and the for what I call the legalist paradigm, that it a in In it is widespread (though not in the that the legalist paradigm an when it the need for corrective state action a necessary not only of unjust but all morally I believe that the legalist paradigm sometimes but not always into the legalist paradigm. is or justice and In justice is sometimes as of and sometimes as with Sometimes when a is justice is to what is morally required as to what is morally but not and the in this moral also the of a moral we may that and the legalist paradigm. justice that of that is and a sense often if not always as in to and the legalist paradigm does not an it may often the of the legalist and claims that state involvement can justice a its and it claims are and the state should an important in but they of that injustice requires a state remedy. I think the for the legalist paradigm is the that state action is the of our about justice. The of this article is to to of this an alternative justice its and we our about justice by our to to of the Though justice sometimes requires state action, it and from the State action to implement or justice is more practice that we should from the of justice. 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