When Law Fails: Making Sense of Miscarriages of Justice

Chapter 10: The Scale of Injustice

303 Chapter 10 The Scale of Injustice Patricia Ewick And what of everyday life? Everything here is calculated because everything is numbered: money, minutes , meters, kilogram’s, calories . . . ; and not only objects but also living thinking creatures, for there exists a demography of animals and of people as well as of things. Yet people are born, live and die. They live well or ill; but they live in everyday life, where they make or fail to make a living either in the wider sense of surviving or not surviving, or just surviving or living their lives to the full. It is in everyday life that they rejoice and suffer; here and now. —Henri Lefebvre, Everyday Life in the Modern World Some (infra-state, local) legal orders are too close to everyday reality to be viewed as a fact of law. Other (supra-state, world) legal orders are too remote from everyday reality to be viewed as a law of fact. —Boaventura de Sousa Santos, “Law: A Map of Misreading. Toward a Postmodern Conception of Law The phrase “miscarriage of justice” connotes a failing of monumental scale. First, the phrase suggests an event—a decision, a verdict, an act —that is exceptional, a singular betrayal of the established ideals and practices of law. The word “miscarriage” suggests an untoward event, an Ogletree-Sarat_pp279-330.indd 303 Ogletree-Sarat_pp279-330.indd 303 9/12/08 1:26:24 PM 9/12/08 1:26:24 PM 304 Patricia Ewick unexpected interruption in an otherwise unfolding of a process. A “miscarriage of justice” is a derailment, as if justice is the default category. The phrase also conveys the gravity of this failing or derailment. When we speak of a “miscarriage of justice” we imagine lives are shattered and destroyed, freedoms lost, and cherished ideals undermined: an innocent man is condemned; another is stopped and searched solely because of his race; a victim of sexual abuse is ignored or shunned. Tragically, such monumental failings occur regularly. But the spectacular , singular, and exceptional failings indexed by that phrase do not exhaust the universe of injustices. Particularly, in the contemporary world of neoliberal law, hyperrationalized governance, and global economies, power often operates both from a distance and yet, at the same time, through the finer circuitries of social life.1 In this world, individuals are part of shifting and overlapping networks rather than role-based relationships . Law exists at multiple, parallel planes.2 As a result, injustices often occur from a distance and, simultaneously, at a smaller scale; and responsibility for redressing systemic injuries is shifting and vague. Woven into the operation of markets and bureaucracies, embedded into protocols and standard procedures, the scope of such injustices is wide and deep. Such injustices are frequent, systemic, and impersonal. Their consequences are often erosive rather than violent; they are cumulative rather than singular . In other words, as the scalar resolution of power shifts, the ability to apprehend its operation from the ground of everyday interaction diminishes . Finally, because it becomes increasingly difficult to name an event as unjust, to attribute agency or motive, or even calculate injury, these mundane injustices often go unrecognized and thus unremedied, although not unfelt. In this essay, I explore the shape and effects of such mundane and unrecognized injustices. Justice, Injustice, and Power The connections that exist among law, power, and justice are abundant, obvious, and complex. Whereas in many social institutions, power lurks, submerged within dominant and often competing discourses of enlightenment , love, or benefaction, within legal institutions the operation of power is rarely disguised or denied by those who deploy it. In acts of surveillance, confiscation, detention, incarceration, reformation, and exOgletree -Sarat_pp279-330.indd 304 Ogletree-Sarat_pp279-330.indd 304 9/12/08 1:26:24 PM 9/12/08 1:26:24 PM The Scale of Injustice 305 ecution, the law claims for itself the right to commit acts of violence and transgression that would otherwise be forbidden. Yet its power is not limitless . Within the official discourse, justice demarcates the limits of legal power by defining standards against which that power can be held accountable . A commitment to distributive justice, for instance, demands that like cases be treated alike. Similarly, standards of justness require that punishment be reasonable, not cruel, unusual, or excessive To the extent that it contains and regulates the law’s power to punish and afflict pain, justice legitimates that power. The capacity...