Reflecting on the Conditions of Justice

(T)he character of exchange is the primary character of justice.
    ~ Friedrich Nietzsche, Human All Too Human

These reflections are not about this or that judgement, this or that dispute, and this or that historic moment. The day is relevant because a judgement has been made. But the concern is wider, because all judgements make their own mark (as digression, confirmation or violation) in relation to previous judgements, and may have a bearing upon judgements to come. The judge judges a case, or a dispute, within the limits and liberties of law. When we wait for a judge to pronounce judgement, what do we really wait for? To know, to see what he thinks of the case, or the dispute. The figure of the judge takes precedence when the judgement is being delivered. He weighs the facts of the case, and interprets it according to the logic of the law. We expect objectivity, reason, impartiality and clarity in his delivery of judgement. We forget history, we forget pre-judice, and we forget politics. 

In other words, we forget the “origins” of justice, that mysterious and messy place where it comes from. It is not just a place back in time, but something that exists, persists the way the origins of all things exist and persist. For instance, if caste exists, or religious bigotry exists, its origins are also present today. These “origins” are not to be traced in some undated past. There is nothing “ancient” about them. Their genealogy can be traced in times much closer to ours. What is necessary to regard and find out is the principle of origins, where the law bares what it hides.

The point is simple: The task of anyone studying the history of judgements, even of this judgement, or any judgement in the future, will learn from tracing its history back in the time suitable or proper to it, from where both external (historical, political) and internal (subjective, pre-judicial) elements that may (or may not) have a bearing on the judgement can be found. These elements are not traces but signs. Traces don’t have a strong bearing on something as historic as judgements. Signs carry the marks of history and politics. So where do we look for the signs in a judgement? Simply: in its language. No judgement can be better or worse than the language it uses to pronounce it. Language carries the political and cultural marks of a judgement. It reveals what a judgement openly hides in its language: the historical and political condition of justice where it bares what it hides.   

We must acknowledge that there is no conflict between faith and reason in politics. When faith acts upon its political interests, it uses reason to stamp its (illegal) authority. The question is also not history versus faith. It is how faith depends on history. We need to understand what faith is willing to lose of itself, in order to be political. In other words, we must ask what faith is willing to lack as faith in order to become a mask, a weapon, a slogan in history that symbolises the intention of conquest. History is not simply about facts and evidence. Archeological evidence as historical proof is not enough in political matters. The purely rationalist conception of history that divides the idea of history into binaries of religion and secular, faith and reason, does not take the political aspect of history into account. This division is not to the rationalist’s advantage as well, when the matter is political.  Faith and reason are separate as categories, but not so separate in politics. 

Modernity has demeaned faith by making instrumental rationality crucial for its public existence. What is understood as faith is the instrumental rationality of modern politics, masquerading as faith. If there is a conflict of interests between two groups, they will put faith and reason in each other’s service to argue their matter. The point about history is not simply to create conceptual binaries/distinctions and hierarchies, but to argue how to ethically reconstruct it. The point is to question the legitimacy of power. The law must take the law of history into account, where the idea of power rules over rationalist binaries. Nietzsche traces the “origins” of justice in a trade-off. Justice is exchange value. Of what? Power. Justice creates the myth (the “original” myth, if you like), that both parties are equal and the judgement matters to them both equally. Nietzsche calls this exchange of justice as proof of what is “forgotten” of the “original purpose” of justice. The judgement is supposed to make us forget our inequality. More crucially, all that is political and real – people’s sorrows, struggles, sense of pride and humiliation – are all made inconsequential. These are the irrationalities which we struggle for, when we struggle for justice. 

To struggle for justice is not simply a struggle for the archeology of evidence. There is a truth apart from the evidence of history: the truth of being other, who is struggling for a false equality because s/he lacks power, who is struggling for a false fraternity, because it has been replaced by relations of interests. The other is the real truth of history that even justice falls short of addressing. Truth is always that excess that justice is forever trying (and failing) to impress, and to heal.  

Manash Firaq Bhattacharjee  is the author of Looking for the Nation: Towards Another Idea of India (Speaking Tiger, 2018). He frequently writes for The Wire, and has contributed to The New York Times, Al-Jazeera, Los Angeles Review of Books, Guernica, The Hindu, Outlook, Economic and Political Weekly, among other publications.

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