This blog post was originally published by Colin at the eDeliberation Blog
Holmes was an interesting character. He was on the Supreme Court for thirty years, and over that time there was quite a bit of myth making about his intelligence and influence. He never served as Chief Justice, but his ability to write compelling prose (along with his “distinctive personality“) made him one of the most famous judges in history. The Journal of Legal Studies identifies Holmes as the third most cited American legal scholar of the 20th century.
There’s much that can be said about Holmes as related to the focus of this blog, as his writing is voluminous. The internet is littered with his pithy quotes: “Taxes are the price we pay for civilized society.” “Even a dog distinguishes between being stumbled over and being kicked.” “A child’s education should begin at least 100 years before he was born.” And the classic: “Lawyers spend much of their time shoveling smoke.” But in this post, I want to talk about what Holmes said about the concept of justice.
There is a story about Holmes and Judge Learned Hand, in which they had lunch together and afterward, as Holmes headed off in his carriage, Hand spontaneously ran after him and yelled, “Do justice, sir, do justice!” Holmes instructed the driver to stop the carriage, and he turned back to Hand and said: “That is not my job. It is my job to apply the law.”
This was not a one-off sentiment. In a letter to John Wu, Holmes wrote: “I have said to my brethren many times that I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.” (When pressed later on this statement, Holmes clarified that not only did he hate justice, he also hated facts.)
As a non-lawyer who teaches in law schools, I have been brought into the “justice” conversation many times. I am asked: How can you be sure your online systems will deliver justice? Whenever I enter into this discussion, I recall my ancestor’s observations.
What is justice? To me, the debates around justice can feel more philosophical than practical. There are many possible types of definitions (h/t to my friend Jan for these):
- Outcome focused (e.g. Substantive, Distributive, Utilitarian, & Social Justice)
- Process focused (e.g. Procedural Justice)
- Organization focused (e.g. Interactional, Informational, & Interpersonal Justice)
- Community focused (e.g. Corrective, Retributive, Deterrent, Restorative Justice)
Is it just that I get the last donut and you don’t? Is it just that it rains on my wedding day and not on yours? Is it just that our society is riddled with race, gender, class, and appearance bias? Is it just that the refs called Steph for a blocking foul when LeBron did the same thing three minutes ago and no foul was called?
When I try to help parties resolve disputes, I get concerned when the talk starts to focus on justice. Justice is very much in the eye of the beholder. One’s concept of justice is shaped by one’s self-interest. As Mel Brooks puts it, “Tragedy is when I cut my finger; comedy is when you fall into an open manhole and die.” Parties may think to themselves: justice is when I get what I want. So if I don’t get what I want, there isn’t justice.
Whenever people talk to me about the concept of justice, in my mind I start to substitute in the concept of fairness. Our parents never say to us that life is not just, but they do tell us from an early age that life isn’t always fair. It’s almost like the concept of neutrality, which I think is another impossible ideal — we might never be neutral, but we can try to be impartial. True justice may also be an impossible ideal. And if we can’t achieve it, maybe we can aim to be fair instead.
There’s a bumper sticker on the wall of many a college dorm room that proclaims, “No Justice, No Peace.” This is the kind of motto that works well in one’s twenties but may generate a moment of pause for those of deeper vintage. When I contemplate the injustices of our age (which are legion) I worry that this type of bumper sticker sentiment will dominate our response. I suspect a focus on fairness may be more attainable, and will give us more space to find common ground.
Another Holmes quote (oft attributed to the Jr. but in fact from the Sr.) is “The young man knows the rules, but the old man knows the exceptions.” There’s a difference between knowledge and wisdom. If we’re to start fixing what’s broken, we need to keep that difference in mind.
Colin Rule is CEO of Mediate.com. From 2017 to 2020 Colin was Vice President for Online Dispute Resolution at Tyler Technologies. Tyler acquired Modria.com, an ODR provider Colin co-founded, in 2017. From 2003 to 2011 Colin was Director of Online Dispute Resolution for eBay and PayPal. Colin co-founded Online Resolution, one of the first online dispute resolution (ODR) providers, in 1999 and served as its CEO and President. Colin worked for several years with the National Institute for Dispute Resolution (now ACR) in Washington, D.C. and the Consensus Building Institute in Cambridge, MA.
Colin is the author of Online Dispute Resolution for Business, published by Jossey-Bass in September 2002, and co-author of The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, published by the ABA in 2017. He received the first Frank Sander Award for Innovation in ADR from the American Bar Association in 2020, and the Mary Parker Follett Award from the Association for Conflict Resolution in 2013. He holds a Master’s degree from Harvard University’s Kennedy School of Government in conflict resolution and technology, a graduate certificate in dispute resolution from UMass-Boston, a B.A. from Haverford College, and he served as a Peace Corps volunteer in Eritrea from 1995-1997.