some of his enemies), the sheer unevenness of prosecution in terms of
wealth and status (prosecution takes time, and if you engage a lawyer
it takes money), and the non- prosecution of offenses that didn’t have a
relatively affluent citizen to take them up. Plato’s Euthyphro depicts this last problem, showing the burden the system imposes on a person of
good will. Euthyphro’s father has murdered a day laborer, a noncitizen.
Nothing at all happens, since the day laborer has no relations to initiate
prosecution— until Euthyphro himself decides to prosecute his father on
the dead laborer’s behalf. As the dialogue makes clear, it is deeply prob-
lematic for a son to haul his father into court; and yet it is also problematic for the murder to go unprosecuted. In the absence of public prosecution,
such problems must have been ubiquitous.
Worst of all, though, was the encouragement the private- prosecution
system gave to the retributive passions. Chapter 5 argued that the desir-
able course for the victim is to mourn the loss but to disengage from fur-
ther personal involvement with the perpetrator, letting impartial justice
take over. The Athenian system prevents this disengagement, putting the
victim in the position of the Furies, obliged to hunt down the particu-
lar offender. The system itself seems to fuel ongoing anger and fixation.
Thus, although in other respects the classic Athenian system takes the
issues dramatized in the Eumenides seriously— treating anger as a disease in the political community, and viewing the public task as the healing
and reconstruction of diseased interpersonal relations— in this structural
respect the system is all too continuous with the revenge morality that
preceded it.2
No doubt this unsatisfactory feature, together with its prominent role
in the trial and death of Socrates (who was prosecuted by a group of per-
sonal enemies), helps explain the fascination of many Greek philosophers
Everyday Justice
171
with the critique of political retributivism and their repeated attempts to
replace it with a legal system focused on both reform and deterrence.
Indeed, this search probably began with Socrates himself, who seems to
have rejected the lex talionis (“an eye for an eye”) as the basis for dealing with people by whom one has been wronged.3 Certainly the search
assumes prominence in Plato’s relatively early Protagoras, with its elaborate account of deterrence and reform. In that dialogue, Protagoras
announces the following policy:4
One who undertakes to punish rationally does not do so for the
sake of the wrongdoing which is now in the past— for what has
been done cannot be undone— but for the sake of the future, that
the wrongdoing shall not be repeated, either by him or by the
others who see him punished. … One punishes for the sake of
deterrence. (324A– B)5
If it is right to say, with Danielle Allen, that ancient Greek punishment
was all along a search for a cure for the disease of anger, then these
thinkers are not breaking with the prior tradition, as Allen suggests,
but, rather, taking the logical next step— by arguing that the best way
of curing the disease of anger in political life is to refuse to base institutional arrangements on it.6 At any rate the search for a forward- looking
and non- vindictive account of punishment, and of criminal justice more
generally, did not begin with Jeremy Bentham: it was a major feature of
how both Plato and the Stoics approached the topic of wrongdoing— not
only as a feature of personal relations but also as a feature of laws and
institutions. In this respect they followed the suggestive images created
by Aeschylus, urging that that attractive ideal requires rejecting some
prominent features of Athenian practice. Still, their positive institutional
proposals were both too thin and too bound up with their rejection of
democracy to offer us much help.
In this chapter I consider what happens to wrongful acts and the
emotions they inspire when they are made the concern of a working sys-
tem of everyday political justice: what features of such a system best per-
form the job of taking wrongdoing seriously, without embracing anger?
In the next chapter I consider the transition from an era of profound
structural injustice to an era in which, it is hoped, these injustices will be transcended. This distinction is not always a sharp one. A transition from
pervasive injustice to a more nearly just regime can occur within one
basic ongoing constitutional framework, as during the U.S. civil rights
movement, a time of significant upheaval involving a major reinterpreta-
tion of the Constitution, but not its repudiation. Or it may involve the
replacement of one regime by a new regime, as in the case of South Africa,
which adopted a new constitution. But the two cases are different more in
172
Anger and Forgiveness
degree than in kind, and both will be treated as cases of what I shall call
“revolutionary justice”— leaving this chapter to deal with wrongful acts
against individuals or groups within an ongoing legal framework that
is not itself based, at least at the most abstract and general level, upon
fundamental injustice.7
In both cases I follow the thread of the critique of anger and ask what
becomes of that critique in this new context. A long tradition has held
that political justice requires angry emotions. Such emotions, it is often
claimed, are a necessary feature of our interactions with one another as
responsible agents, and they are required to express concern for the dig-
nity and self- respect of the wronged.
What, though, do such claims actually mean? Sometimes they are
empirical claims about what is needed to motivate and sustain people as
they seek justice. Such claims are interesting, but speculative and difficult to assess in the context of everyday legal transactions, which involve in
each case a large number of agents (victims, defendants, lawyers, judges,
and many others), and in which different people are no doubt motivated
by many different sentiments and combinations of sentiments. Often
people don’t even know what motivates them. A more tractable question,
which will be mine, is, what sentiments are expressed in the structure
of the legal institutions themselves, and which ones are desirable from
a normative viewpoint? To put this point in a different way: Imagining
justice anthropomorphically, should justice get angry at offenders? If not,
what attitudes should that mythic figure express?
We must also follow our ancillary concern with forgiveness and apol-
ogy. What role is there within political justice for public rituals expressing these ideas and sentiments?
Political institutions, I argue, should emulate the Eumenides: they
should express forward- looking concern for social welfare and eschew
the backward- looking angry attitudes that the trilogy rightly depicts as
both nonsensical (spilled blood never comes back again) and norma-
tively pernicious to the state (encouraging payback fantasies that create
cycles of private vengeance). Political institutions should not embody
incoherent and normatively defective ideas. Nonetheless, as part of their
welfare- guarding function they ought to take wrongful acts seriously,
seek to prevent them, and attend to them if they occur, in a Eumenidean
spirit (which I’ll attempt to describe). There are many specific ways in
which institutions can guard against the reentry of the Furies, and we can
illustrate these, although an exhaustive description is beyond my scope.
Institutions, as Athena emphasized, must be fair and impartial,
swayed by favor. At the same time, they should also have kindly intent.
Like good parents, partners, and colleagues, they should embody not
only a love of justice but also a spirit of generosity that goes beyond strict
Everyday Justice
173
legalism. Our study of anger and forgiveness in other realms has pre-
pared us to think well of generous forward- looking attitudes. Our task in
this chapter must be to map out, for this realm, the proper combination
of impartial justice, acknowledgment of wrongdoing, and empathetic
generosity.
We must remain alert to the issue of trust, important in our analysis
of intimate relationships. Intimate relationships, I argued, flourish only
when parties are willing to be vulnerable to one another in major ways,
not simply relying on the other to behave thus and so (which might be compatible with cynicism about the other party’s likely conduct), but
allowing crucial elements of one another’s flourishing to rest in one
another’s hands. Something similar is true of political communities.
A society with decent institutions will not remain stable if citizens sim-
ply rely on institutions to function in a certain sort of way: for reliance is compatible, once again, with great cynicism toward both institutions and
officials. For example, in a very corrupt society citizens often rely on the corruption of officials, the rottenness of the justice system, and so forth.
In a racist society, minorities rely on the dominant group to oppress them.
In such cases, reliance produces self- defensive evasion and resistance. If
a decent society is to remain stable not just as a grudging modus vivendi, but, as John Rawls puts it, stable “for the right reasons,” it needs to generate attachments to its principles, and attachment brings vulnerability.8
This vulnerability would be unendurable without trust. Producing trust
must therefore be a continual concern of decent societies.
The type of trust political communities need to cultivate is different
from the type that animates intimate relationships, just as the type of love
involved is different. But both types of love and trust involve the will-
ingness to place important elements of one’s own good in the hands of
others— in this case the institutions of one’s society— rather than engaging
in self- protective and evasive action.
Since I shall be defending an approach that is in the most general
sense consequentialist or welfarist, I need to say at the outset what I do
and do not mean by that. As in my other work on political justice,9 I hold
that a major necessary condition of a minimally just society is that it pro-
tect a set of central human opportunities, or “capabilities,” up to some
appropriate threshold level. These capabilities are plural, and each of
them has intrinsic value, apart from other goods that they may produce.
A society that neglects them to pursue opulence or growth cannot be min-
imally just. Nor can a society justly trade them off against one another,
where that means pushing some citizens below the threshold on any one
of them. These capabilities include economic goods, but they also include
basic rights and liberties, and the notion of human dignity plays a central
role in knitting them all together.10 Although the capabilities are separate,
174
Anger and Forgiveness
they are also mutually supportive, and to some extent defined with refer-
ence to what is feasible as an overall target set of political goods.
My view, then, is neither Benthamite nor similar to most familiar
forms of economic Utilitarianism. But it is quite Millian in spirit and it
seems not inappropriate to categorize it as, overall, a philosophically
informed type of welfarism.11 It certainly has deontological elements, in
the sense that a capability violation is an injustice, whatever wealth or
other good it produces; and the protection of each capability is an intrin-
sic political good. Moreover, the capabilities are a partial political doc-
trine of (minimal) welfare, not a comprehensive doctrine. The view as
a whole, however, seems to me correctly classified as a form of political
welfarism that has a richer, more variegated picture of welfare than many
of its competitors.
II. False Social Values Again
Like the intimate and Middle realms, the political realm confronts us
with a ubiquitous problem of false social values. People will not long
support or even comply with a legal regime if they strongly disapprove
of its underlying values. Popular support of some type, moreover, is not
just a practical limit, but also a constraint on political legitimacy. Any
program that cannot be justified to people fails a basic normative test.
For example, the “Government House” Utilitarianism favored by Henry
Sidgwick, according to which the true principle of political choice is
known only to small elite, flouts constraints of transparency and popular
consent that seem necessary, in some form, for political legitimacy. But
current values are often defective: so what do we need to show about the
values we propose?
John Rawls’s Political Liberalism insists that legitimacy requires showing that the values proposed can become the object of an overlapping
consensus among holders of the major reasonable religious and secu-
lar doctrines that citizens embrace. He did not insist, however, that the
overlapping consensus must be a present reality. More plausibly, he held
that one need only show that there is a plausible route to such a consen-
sus over time and through argument.12 I agree, and I agree further with
Rawls in thinking that we must be able to show that the political concep-
tion is not a comprehensive doctrine, but shows equal respect to citizens
who hold a wide range of reasonable comprehensive doctrines. But I then
must face a tough challenge: what precise form of our non- anger doctrine
can possibly be “sold” to citizens in a pluralistic society? Right now, it
seems, many if not most people in most modern societies have notions of
competition, status- seeking, manly honor, and revenge that are likely to
Everyday Justice
175
make them not just disagree with the ideas about anger and retribution
that I have defended, but also deride them as weak and unmanly.
The challenge, I believe, can be met. We may begin by pointing to
recent instances in which just such ideas have enjoyed great popular suc-
cess: the protest movements of Mohandas Gandhi and Martin Luther
King, Jr., and the conduct of Nelson Mandela as leader of the new South
Africa. All these cases will be examined further in chapter 7. To these w
e
can add the non- angry response of the families of the victims in South
Carolina, which I discussed in chapter 3. These cases show us that the cri-
tique of anger offered here can be persuasive not only to an audience of
intellectuals, whose occupational bias may lead them to disfavor familiar
paradigms of “manliness,” but also to large masses of people— and often,
people who did not accept those ideas prior to the persuasive power of
these movements, or didn’t think they accepted them. Part of the rapid
success of these three leaders, who over relatively short periods of time
brought millions of people around to accepting their norms, can be attrib-
uted to their ability to tap familiar religious traditions: significant strands or counter- strands of Christianity, Hinduism, and traditional African
religion, as well as the entirety of Buddhism. Such religious references
helped people feel that at some level they were already committed to
the critical ideas: they saw their leaders’ persuasion less as alien impo-
sition than as a demand to sort themselves out, getting rid of cultural
baggage that clashed with some very deep and previously unexamined
commitments.
Thus we should not exaggerate the idea that all of modern culture
is against us. If so many people change so rapidly, under the influence
of King, Gandhi, and Mandela— or a gripping personal experience— it
is evidence that our culture is actually torn about them.13 People may
romanticize the vigilante in fiction, but on the whole they do not want
to meet up with him in life, and they are quite happy to admire such
fictional types while supporting a legal order based on non- angry talk
and argument.14
What are the areas in which law needs to resist some strong cur-
rents in popular belief? One is in determining where legal intervention
is appropriate. As I said, not every common cause of anger involves a
serious injury to well- being, but people often think that it does. As Seneca says, they exalt trivialities into major events, and they often become punitive as a result: “road rage” is just one example. In many if not most cul-
tures, insults to honor have been occasions for anger- based violence, and
Anger and Forgiveness Page 31
