Lecture David Dyzenhaus – University ofAmsterdam – 18 October 2024

In The Faces of Injustice, Judith Shklar criticizes the “normal model” of justice that views injustice as an unusual absence of justice. Her central insight is that “the realm of injustice” is a commonplace of life in typical polities with effective legal systems. She also offers a second, Hobbesian insight: “[w]ithout juridical institutions and the beliefs that support them, there can be no decent, just, or stable social relations, but only anxiety, mutual mistrust, and insecurity”. Since juridical institutions and the beliefs that support them may be necessary for justice, but insufficient to prevent injustice, the insights are perfectly consistent as a matter of abstract logic. Consider, though, consistency as a matter of a different logic, the logic of legal experience for those in the “jural community”, the community of persons subject to law. Such experience shows that certain kinds of injustice are inconsistent with an operative system of law, since they create tensions within the jural community that it must resolve to remain operative. Reflection on two of Shklar’s examples – the Nazi “dual” state and slavery in USA – and two that she did not mention – the apartheid state and the “parallel state” of Israel and the Occupied Territories – shows how systems of law offer a legal resource that makes resistance to certain kinds of injustice, and thus the practice of human rights lawyering, possible. However, at the same time, all involved in maintaining an operative system of law, including human rights lawyers and their clients, participate in legitimising the system. This chapter suggests that Shklar underestimated the ability of the legal theories of three important exemplars of the normal model of justice – H.L.A. Hart, Lon Fuller, and Ronald Dworkin – to illuminate different aspects of the experience of injustice.

Date: 18 October 2024

Time: 15.00-17.00

Room: A3.15 (UvA Roeterseilandcampus REC)