Reasoning From Injustice

Robert L. Tsai September, 2025

“But, while the river may not be turned aside, it may dry up, and leave nothing behind but the withered branch, and the unsightly rock, to howl in the abyss-sweeping wind, the sad tale of departed glory. As with rivers so with nations. —Frederick Douglass, 1852

In a series of lectures at Yale Law School, the Harvard political theorist Judith Shklar critiqued leading models of justice as overly abstract and lacking a realistic account of the social dynamics that perpetuate injustice. In this essay, Professor Tsai builds on Shklar’s account of injustice as a social phenomenon by offering a structural reading of key literary texts that explore the nature of legal injustice—from the Book of Job to Harriett Beecher Stowe’s Uncle Tom’s Cabin and Frederick Douglass’s The Heroic Slave . A close reading of these texts permits us to flesh out Shklar’s observations and “give injustice its due.”

Tsai argues that three civic faculties must be developed to improve democratic citizens’ capacity to reason from injustice. First, citizens must acquire the capacity to recognize how communal narratives and social ties are manipulated to obstruct a sense of injustice from developing. Iniquity festers when citizens are incapable of drawing the connections between the material deprivations they experience and the laws or policies they cannot readily observe. Second, we need a refined understanding of the various stages of democratic outrage, which entails more than the inculcation of empathy. Beyond learning how principles are supposed to work in ideal conditions, citizens in an aging pluralistic order must acquire a sophisticated understanding of how law, morality, and the economy interact to block humanitarian projects and dissipate justified outrage. Third, a culture of indifference that has metastasized makes reform even more challenging. As citizens become increasingly aware that the very institutions created to promote justice often perpetuate injustice, they will have to confront their reluctance to work with tainted bodies of knowledge. But this ability to use, adapt, and occasionally subvert civic knowledge is crucial to overcoming democratic heartbreak and developing inspiring and effective models for political action.

I. Introduction

Societal indifference to the suffering of others is a problem for every society, but it is especially corrosive in democracies organized according to egalitarian ideals. Consider Justice Powell’s opinion in McCleskey v. Kemp that judges should not block the execution of a black man when studies showed that black people accused of killing white people were significantly more likely to receive the death penalty because “disparities in sentencing are an inevitable part of our criminal justice system.”¹ Or Chief Justice Rehnquist’s haunting words in DeShaney that the harm to poor Joshua, beaten until he fell into a coma, “was inflicted not by the State of Wisconsin, but by Joshua’s father” and that “[t]he most that can be said of the state functionaries” who failed to intervene “is that they stood by and did nothing when suspicious circumstances dictated a more active role.”² Such indifference on the part of caretakers and jurists, day after day, understandably leaves many citizens demoralized. When injustice is left in place and perceived to be irremediable, citizens begin to doubt the power of the law. They start to lose their sense of civic responsibility and faith in a shared future.

For these and other reasons, “no democratic theory can ignore the sense of injustice that smolders in the psyche of the victim,”³ according to Harvard political philosopher Judith Shklar. Her remarks during the Storrs Lectures at Yale Law School were published in the Yale Law Journal and then later expanded for a slim volume titled, The Faces of Injustice . In the course of her argument, Shklar offered several rich insights that bear on our enduring search for democratic justice in an imperfect world, such as discerning the difference between personal misfortune and political injustice and exploring why everyday wrongs remain so pervasive in spite of commendable progress to reduce material deprivation.

In this essay, I aim to explicate what I believe to be Shklar’s main contribution to legal thought—sketching an entirely new orientation towards problems of justice—and I begin to build out her observations so as to develop a theory of injustice. It is not possible to articulate a complete theory in a single essay, so consider this to be a first stab at describing some of the features that a theory of injustice would need to take, some elements of such a theory that I believe to be most compelling (though certainly not an exhaustive list), and a few illustrations of those elements.

Rather than start by working from the standard methods of ideal theory, Shklar begins by lending credence to “those who have seen injustice and cried out in anger.”⁴ This is a deeply humanistic reorientation of the subject of political justice that is receptive to material conditions and historical grievances—even though she does not label her approach this way. After all, for generations, pragmatists from William James to John Dewey have encouraged thinkers to immerse themselves in social facts before attempting to solve intractable problems.⁵ Moreover, while Shklar was not self-consciously trying to develop a grassroots notion of political justice, her liberalized approach remains compatible with theories that mine popular rather than elite attitudes towards societal arrangements.

Additionally, this very move has thrown open the door to other methodologies that might more accurately center the people’s pain and despondency.⁶ Shklar’s starting point holds the striking promise of greater empiricism than most dominant accounts of justice. Aristotle and Plato had particular views of human nature, but swiftly made justice a matter of social harmony: Each according to his talents.⁷ John Rawls, one of the leading theorists of liberalism in our time, takes the irrelevance of intricate human dealings to an extreme. He does so by insisting that a political community be judged through a thought experiment in which individuals must agree to be governed by abstract rules without any serious knowledge of the world as it exists.

For theories of political justice in this mold, the fine details of actual outcomes or how to get there are almost beside the point; what matters above all else is whether a society is organized according to just precepts. Rawls, of course, famously counseled us to reason to just principles from behind a veil of ignorance.⁸ Shklar recoiled at the thought. She had a hard time believing that anyone, much less an entire community, could reason to justice from such a “speculative” place.⁹ Her preference, which entails shifting the locus from a hypothetical moment of agreement or ideal design to evaluating the actual signs of unhappiness and disorder, challenges these prevailing methods and, in doing so, creates space for fresh accounts of “everyday injustice.”

One important reason to pay closer attention to the social dynamics that reinforce injustice, she argued, was that “culture, in its pervasiveness, may act upon us in much the same way as the natural environment does” and can be even “harder” to alter than a political community’s selfannounced precepts.¹⁰ While Shklar largely stayed within an ideological account, such as beliefs that reinforce sex roles,¹¹ this observation nevertheless paves the way for vital institutionalist and more sophisticated cultural accounts of why a particular society falls short of its ideals.

Outrage (and its absence) was the sentiment worthy of further explication, Shklar believed, not because one’s subjective experience is unerring proof of injustice and must be heeded by society without exception,¹² but because the instinct to demand satisfaction contains both “human” and “political” elements.¹³ To Shklar, paying closer attention to the righteous fury of those with historical grievances will help us to better appreciate “the full, enduring character of injustice as a social phenomenon.”¹⁴ But even that’s not enough. We must discern how such grievances uncover certain truths about power imbalances and troublesome bodies of knowledge. For the demands of justice aren’t merely about “broken promises,”¹⁵ Shklar explains, but rather require, in the fullest sense possible, identifying practices and idea-systems that prevent us from attaining our egalitarian and participatory ideals.¹⁶ As to the obligations arising from a society’s commitment to confront injustice, “we will not think about them as contracts but as power relations.”¹⁷

So, for all the unorthodox ways she arranges her diagnosis to frontload the people’s pain and sensitize us to the social conditions that restrict one’s capacity to unlock shared ideals, Shklar seems to shrink from some of the logical ramifications of her own approach. It’s a shame she does this after spending so much time distinguishing her approach to injustice as a social practice from “the usual models of injustice.”¹⁸

If we embrace Shklar’s already sharp critique and push her thesis in the direction it is already headed, we won’t see a handful of departures from a society’s core tenets as evidence of injustice. Instead, what we might see is something else entirely: not just the individual “faces of injustice” to which Shklar draws our attention, but whole forms of injustice, grounded in structural conditions, including democracy’s deficits, that would otherwise go unrecognized by dominant modes of analysis.¹⁹

To wring the most out of Shklar’s insights, we must be willing to upend much of what we know. We need to learn how to reason from injustice to justice.

II. Beyond the Faces of Injustice

The most fruitful place to begin is how Shklar herself understood what it meant to treat justice as a social phenomenon. For Shklar, justice is more than the sum of society’s basic rules and more than a particular juristic method for enforcing them. We know this because the foil for her argument—what she calls “the normal model” of justice—is best illustrated by the project of distributive justice (or “primary justice”).²⁰

A. Theories of Primary Justice are Incomplete

Shklar distinguishes the approach she proposes (“giving injustice its due”) from “the normal mode,” which is to treat injustice almost exclusively as a project to derive “primary” (or distributive) rules of governance. Under the dominant methodology, once such a set of fundamental principles are derived through theory, or agreed upon in practice, then a state of injustice—understood as the absence of order characterized by the assignment of basic rights or rules—no longer prevails.²¹ In contrast, Shklar favors an account that can explain “gravest acts of injustice” that occur “in normal times.”²² In other words, the hard question is what explains injustice when ideal conditions do not obtain (for thick theories of justice), is impossible to reach (for highly speculative theories of justice), or when minimal conditions appear to be satisfied (for bare minimalist theories of justice).²³

Further, she critiques “the parajudicial conception of morality” as “too feeble,” for “it does not correspond to our daily experience of moral and political choice and conflict.”²⁴ Shklar finds stifling accounts of justice that are top-down, overly pristine, and ultimately incapable of diagnosing the full range of a society’s ills. In the parlance of modern legal and constitutional theory, that would encompass court-centered visions of law, as well as theories of justice that focus on identifying bad actors at the expense of assigning blame to indifferent ones and policing the limits of state action at the expense of ruminating on the scope of private responsibilities.

She doesn’t take these criticisms as far as they might go, such as to challenge foundational approaches if they indeed rest upon an unrealistic view of human nature or modern society. Reasoning our way to justice, even it is to discover some discrete set of principles and institutions, retains enormous value. Even so, what Shklar seems to be saying is that a primary theory of justice is merely the beginning of any project to achieve meaningful justice in the world as we know it.

To sum up: Shklar thinks that prevailing accounts of political morality focus too narrowly on the problem of injustice as an “amoral and prelegal state of nature.”²⁵ When the matter is put that way, the questions worth answering revolve around what a just society might entail at the highest level of generality at the moment of design (or aspiration of completion), for a just order puts an end to the unjust state of nature.²⁶ Even theories that purport to say something about normal conditions of governance often exhibit a “complacent view of injustice” and too much “confidence in the ability of the institutions” underwritten by such theories “to cope with iniquity.”²⁷

If justice is best understood as a social practice or way of life, as some of us have argued,²⁸ then it follows from Shklar’s critique that injustice, too, can be understood as a set of practices that block a sufficient understanding of iniquity or weaken one’s resolve to confront legitimate grievances that might help us build a more enlightened society. In particular, she explores why there is so much “passive injustice,” that is, when a citizen “fail[s] to stop private and public acts of injustice.”²⁹ Passive injustice is a “civic notion,” and thus the failure of citizens to fulfill their obligation to confront injustice is a civic failure.³⁰ And she calls attention to the disturbing reality that “[o]ften it is the very people who are supposed to prevent injustice who, in their official capacity, commit the greatest acts of injustice, without much protest from the citizenry.”³¹

At times, Shklar puts her answer in the starkest form: injustice is ineradicable. “[T]here is no cure for injustice,” she says darkly, because “even reasonably upright citizens do not want one.”³² It is not merely “due to disagreements about what is unjust but to an unwillingness to give up the peace and quiet that injustice can and does offer”³³—what we might call broadly, “a civic culture of indifference.” A culture of indifference is one where mutuality between citizens has been degraded to the point that many people refuse to consider beyond their own private interests or those within a close circle of concern.

Shklar is concerned with participants and witnesses to iniquity who actually recognize that their behavior is unjust but refuse to do what’s necessary to promote the good of the whole. She is cagey whether this is primarily a defect of majority-rule (in which case more complicated power-sharing arrangements might do some good) or a lack of will or imagination on the part of a segment of society (in which case the reformation of key institutions and beliefs must follow).

Either way, law itself can become a part of the problem. Shklar elevates Cicero for representing the skeptical tradition and adopting a proper orientation that gives injustice its due. While Cicero was a jurist, he came to see injustice “in places where most Romans did not choose to look,” worrying that “law itself might, in becoming refined and complex, create its own injustices.”³⁴ She further credits Cicero for distinguishing between active and passive injustice, and for calling out those among us who are “passively unjust.”³⁵ In our cities, “a Ciceronian would see not only the injustices committed by officials, criminals, and cheats, but also, emphatically, those of citizens who refuse to report crimes, to notify the police, to give evidence in court, and to come to the aid of victims merely because it is inconvenient…. And it is a judgment on the polity in which the citizen lives, if it encourages him to be passive.”³⁶

Many of the shortcomings identified by Shklar could be called violations of duties citizens owe one another that make the enforcement of the laws possible. Sporadic compliance with such responsibilities makes it easier for wrongdoers to get away with transgressions, and persistent failures would raise serious questions of equal justice.³⁷ Other complaints seem to be about the state of the legal system at a particular moment in time, for instance, that the rule of law might become so technically complex that citizens become unwittingly ensnared by legal expectations or transfer too much actual power to specialists.

Yet for all of Shklar’s efforts to direct our attention to the injustices that “occur continuously within the framework of an established polity with a system of law,” she insists that the enterprise of justice is not “absurd” and does not question “the principle of legality.”³⁸ She is merely revealing the blind spots of ideal theory, she insists, rather than shaking its foundations.

But why accept at face value Shklar’s efforts to downplay the significance of her own theory? In fact, there are several reasons we might not accept her modesty as the end of the matter. For one thing, while it is possible to read Shklar as focused purely on matters of implementation and remedy,³⁹ her critique logically extends beyond mere problems of enforcement and invites us to reorient ourselves more profoundly toward what I call “the social foundations of injustice.”

For instance, her pivot away from the ideal and toward fact-leavened investigations of justice is more consonant with Sandel’s communitarian vision than Rawls’ formula of distributive justice. Shklar’s approach exhibits faith that we can arrive at conceptions of the good life through empiricism (including by consulting a broad range of communal texts and values) rather than thought experiments.⁴⁰ Shklar’s methodology implicitly questions whether any normative theory that does not start with a plausible account of the world as it is can meaningfully offer an account of the world as it should be.

For another, Shklar’s efforts to draw our attention to obstacles that stand in the way of substantive justice broadens the legitimate subjects of inquiry beyond legal concepts and the forms of politics. Its judgment falls upon not only perpetrators but also bystanders, patterns of nonfeasance and malfeasance, structural conditions as well as stories of political origin, democratic citizens who rupture dominant political patterns as much as founders who seek to impose the appearance of consensus. She addressed only a handful of the dynamics that cause domination and inequality, without presenting a comprehensive catalogue of the forms of injustice. That work remains to be completed.

Third, an insistence on political harmony as the measure of justice may itself have the effect of silencing legitimate grievances and closing people’s eyes to everyday injustices. This is because a steadfast prioritization of social order stands in tension with the need to accommodate the unusual, even upsetting, forms of disagreement necessary to uncover festering grievances. Normative theories have a hard time acknowledging that they might be incapable of anticipating their own faults.

The messy truth is that unorthodox perspectives and alternative ways of life do not always represent a direct threat to the rule of law. In this sense, fidelity to Shklar’s insights requires us to theorize power and community in ways that leave space for the airing of grievances so as to illuminate flaws in democratic design and devastating cultural pathologies, along with breakdowns in legal enforcement.

Despite her trenchant criticisms, Shklar repeatedly refrains from pursuing her logic to its ineluctable conclusions. Why she doesn’t go further is an interesting question but beyond the scope of my present purposes. What we know is that throughout her work, she demonstrated a skepticism of foundationalist approaches, believing that none was complete, and all theories could be corrupted.⁴¹ Be that as it may, if we heed Shklar’s call “to give injustice its due,” we will in fact be engaging in a vastly different sort of enterprise than the majority of legal theorists are used to doing.

B. Closing “the Immeasurable Distance”

I call a more developed socio-legal approach along these lines “reasoning from injustice.” It holds that a theory of justice is incomplete, and its principal objectives unlikely to be achieved, if it is not matched with a plausible theory of injustice.⁴² This empirical, more grassroots effort to discern the contours and mechanisms of injustice begins with the conditions we cannot fully control but can alter through significant efforts—and some that, despite our best efforts, we might never be able to eradicate. Importantly, to search for the social lives of injustice, consistent with Shklar’s views, requires us to recognize that it is not simply a matter of responding to “broken promises.”⁴³ The promissory approach represents little more than a colloquial way of talking about injustice, one that is overly shaped and obscured by Lockean influences.

For even if we can agree on what precisely has been assured, promisebased theories cannot capture the full measure of existing unjust social conditions or explain why gaps between ideals and material reality persist. Often, promises are merely terms that those in power negotiate around, while enforcing them against the weak.

Reasoning from injustice offers another paradigm for thinking about problems of justice—a bottom-up approach to good order that has implications not only for how we handle questions of law and constitutional theory but also for the content of civic education. Reasoning from bad order to good order would represent a way of cashing out Shklar’s insights and closing gaps between idealized order and everyday injustice.⁴⁴

But we will have to go further than Shklar did. Shklar mostly emphasized ideological explanations—focusing on the ideas that can shape understandings and perceptions of justice—rather than the material conditions of unfreedom. Reasoning from injustice entails identifying the structural conditions that reduce the capacity for some to participate fully in politics or to enjoy the law’s protection.⁴⁵ This is what Shklar alludes to when she stresses that “we live under rules and laws not of our own making or in our interests.”⁴⁶ A true bottom-up approach would be concerned with more than mere departures from legal doctrine or ideal notions of political order.

Let me identify some of the aspects of the approach if it is to be fully realized. First, it is essential to start by immersing oneself in the material deprivations that give rise to a complaint of injustice and holding off for as long as possible the tendency to make firm normative judgments. Although a sketch of key principles may be necessary to guide evaluation, ideological distortion can only be avoided through factual immersion before adopting intellectual distance and categorizing, often harshly, new knowledge.

Second, the approach seeks to surface mechanisms that frustrate the articulation of justice-based claims, as well as their enforcement even after they have been clearly articulated. Shklar refers to this dynamic when she notes that there is a tendency to recharacterize complaints about injustice as mere “misfortune.”⁴⁷ Who or what is to blame? The media, elected officials, judges, fellow citizens? Determining why the whitewashing of injustice happens and how these dynamics are so effective in frustrating emancipatory projects must be a primary concern for a credible theory of injustice.

Third, this alternative method would involve discovering and naming the variety of recurring forms that injustice actually takes in a particular society—through typologies of injustice that might promote further understanding. As I have begun to catalogue elsewhere,⁴⁸ the forms of injustice are the peculiar legal and cultural patterns of mistreatment characterized by recurring motivations, justifications, causes, strategies, and consequences. These ideological and institutional patterns can vary from place to place, and certainly from society to society. Appreciating that injustice can assume certain predictable shapes and patterns can help us to identify them in their early stages of development. Improved societal recognition might also enhance our capacity to short-circuit the cycle of blame-shifting, reification of social pain, and collective forgetting that stifles productive inquiry and collective action—the very behaviors that lock injustice in place.

If we pushed harder on the lines of argument laid down by Shklar, the payoff could indeed be great: we might better grasp the mechanisms of injustice. Doing so might allow us to arrive at a more sophisticated understanding of how those very institutions that might be necessary to ensure political order, such as the rule of law or the language of democracy, can themselves become responsible for great suffering. Or how a tradition that begins in a ferment of revolutionary justice can degenerate into one characterized by reactionary indifference.

Frederick Douglass offers an attractive model for reasoning from injustice. First, he urges a non-romantic starting point for assessing the state of political life, resisting the “fashionable idea of this day” of “the infallibility of government, and the absolute character of its acts.”⁴⁹ This was the precise attitude adopted by members of the revolutionary generation towards British rule, he observed, when they pronounced many colonial measures “unjust, unreasonable, and oppressive,” unworthy of being “quietly submitted to.”⁵⁰

Second, as Douglass suggests, the collective project of reasoning from injustice entails closing “the distance between this platform” (from which he held forth) “and the slave plantation, from which I escaped.”⁵¹ The potent metaphor of distance—between white citizen and black slave, between the sites of deliberation and the sites of degradation—conveys a working thesis at the heart of the approach, namely, that the lack of proximity to the operations of everyday injustice plays a central role in preserving the status quo. Furthermore, a society’s lofty aspirations can also blind citizens to unjust conditions, for Douglass asserts that the “high independence” of his mostly white audience “only reveals the immeasurable distance between us.”⁵² This is because the blessings of “justice, liberty, prosperity, and independence” celebrated by white citizens “are not enjoyed in common.” While the Fourth of July is a reason for many to “rejoice, I must mourn,”⁵³ Douglass memorably declared.

Third, because a culture of indifference and the “blindness which seems to be unvarying characteristic of tyrants”⁵⁴ now fill that distance between power and lived experience, friends of justice must learn to “hear the mournful wail of millions! Whose chains, heavy and grievous yesterday, are, to-day, rendered more intolerable by the jubilee shouts that reach them.”⁵⁵

Fourth, it is important to take an instrumental and humanitarian view of precedent. Douglass urges that “[w]e have to do with the past only as we can make it useful to the present and to the future.”⁵⁶ He embraces the pragmatist orientation towards all knowledge as working hypotheses to be tested over time rather than unerring truth. But here he adds something more: legal and political traditions must be put to the task of ensuring good order rather than order alone, which may be nothing more than “the order of tyranny.”⁵⁷ Again, the revolutionary generation’s attitude should be our general approach to justice and replicating it honors our forebears: “nothing was ‘settled’ that was not right.”⁵⁸ Citing British minister Sydney Smith, Douglass notes that “men seldom eulogize the wisdom and virtues of their fathers, but to excuse some folly or wickedness of their own.”⁵⁹

Fifth, identifying the sources of injustice and exposing them to sunlight requires not merely “convincing argument,” but also “scorching irony… biting ridicule, blasting reproach, withering sarcasm, and stern rebuke” to lay waste to the fictions and delusions that obscure “the revolting barbarity and shameless hypocrisy” of unjust conditions.⁶⁰ The goal is not merely to spark empathy, but to create the conditions for democratic action in the name of political justice. Doing so requires using a broad range of techniques, situationally, to expose not only yawning gaps between existing conditions and lofty aspirations, but also deeper contradictions within bureaucratic actions, political priorities, and entire systems of thought.

III. The Book of Job: Excusing Injustice “Maybe God himself is lost and needs help.”—Tom Waits,

Road to Peace

At times, Shklar turns to literature to underscore her points.⁶¹ Although empiricism is crucial to understanding the nuances of how social practices can frustrate real grievances within a particular society, literature can be useful to alerting us to their presence, even when we do not live in the world imagined by others. That is because every text with justice as a central theme will naturally discuss recurring (and at times, universal) problems.

For instance, Shklar refers to Charles Dickens’ Pickwick Papers to illustrate an unjust verdict based on a complete misunderstanding between Pickwick, a male tenant, and Mrs. Bardell, his female landlord, that lands Pickwick in prison.⁶² During their conversation, Pickwick tries to tell Mrs. Bardell that he has decided to hire a manservant, but she believes he has proposed marriage and later sues him for breach of contract.

Shklar presents the story “to show that it is not enough simply to match the claims of the aggrieved party against the rules of justice in order to settle firmly whether she was really treated unjustly or merely out of luck.” Instead, you need to delve into the characters’ own sense of injustice “to get a more complete account of its social character.” As Shklar reminds us, “the best fictional characterizations,” like history, biography, “and our own experience tell us that the unjust person has a tangle of motives, not merely greed.” When we turn to investigate the more robust phenomenon of “unjust politics,” we encounter everything from ambition to “ideology, fanaticism, prejudice, xenophobia, and sexism.”⁶³

Even so, in the larger scheme of things, the legal mistake in the Pickwick Papers based on the witnesses’ erroneous perceptions is a minor travesty. Shklar’s discussion of Thomas Hardy’s Tess of the D’Urbervilles suggests there may be greater stakes involved when we turn to recurring, deep-seated problems.⁶⁴ Tess is seduced by one man and has a child by him, who sadly dies in his infancy. A second man marries Tess but abandons her when he learns about her checkered past. Distraught and teetering on the precipice of poverty, Tess returns to the first man. But when her husband returns and tries to patch things up, she says it is too late. She then stabs her original lover to death during an argument. Tess is executed for her crime.

As Shklar explains, the story reduces Tess to her sex, and treats what befalls her as a tragedy of her nature. Yet on its own terms what happens to Tess “cannot be called unjust, since the novel assumes that Tess was being treated in a legally normal way,” and encountering men who behaved poorly was just “bad luck.”⁶⁵

Besides revealing how structural conditions, including the law itself, can work together to prevent injustice from being recognized broadly, Shklar’s depiction suggests that cultural scripts can play a role in converting injustice into misfortune. It is only by combining the careful exegesis of literature, together with insights gained from social science, she says, that “the fate of women” can be “perceived less fatalistically.” At that point, “the possibility of democratic political and social change to lift the injustices endured by women” can emerge.⁶⁶

A. Linking Suffering to Policy

If we supplement the texts worthy of consultation, we might learn even more about the necessity of inculcating a sense of injustice among fellow citizens. Consider that even modern political theorists believe that it is essential to cultivate a sense of justice as part of citizenship. In the absence of moral deliberation, however, individual concern is easily blocked from flowering into social outrage, and the scattered complainants rendered politically impotent. This teaches that becoming aware of principles of justice are never enough, one must also cultivate a sense of what injustice is, and how to slow its spread.

One classic story useful to articulating an account of societal responsibility for injustice is the Book of Job. Read across the centuries, the story of Job has long represented a puzzle. Dominant theological interpretations tend to emphasize the testing of Job’s personal faith, while other readings, such as that of Robert Burt, contend that the story’s place in the canon reflects “a culmination and explicit avowal of the human critique of God” long present in the Hebrew texts.⁶⁷ What follows is a reading of the story that focuses on Job’s mistreatment at the hands of unseen forces that have the appearance of law yet lead to a cascade of suffering. Efforts to explain away the complainant’s loss of status as merely a turn of bad fortune and his indignation as sinful have been prevalent, but they cannot be accepted as persuasive without rendering the overall account of injustice largely nonsensical.

From the very start, the reader is invited to identify with Job, who is described as “blameless and upright,” someone who “feared God and shunned evil.” A virtuous member of the community, Job believes in the rule of law and its legitimacy. Job is doubly worthy of communal respect and God’s favor, we are told, because he has heeded one of the earliest injunctions to “be fruitful and multiply” by raising “seven sons and three daughters.”

Despite his unimpeachable compliance with the law, Job is treated as a pawn to be toyed with. God is not presented in a loving light. To the contrary, he comes off as possessive, vain, manipulative, insensitive, and tyrannical. In other words, he behaves as someone who has been corrupted by absolute power. God’s pride in Job’s righteousness leads him to brag to Satan about how much Job “fears God.” This display of self-regard gives Satan an opening to exploit: he suggests that Job is good only because he enjoys God’s protection. “But now stretch out your hand and strike everything he has,” Satan encourages, “and he will surely curse you to your face.”

God takes the bait. He withdraws the law’s protection from Job and his family and explicitly authorizes Satan to torment human beings and extinguish animal life merely to prove a point. The reader knows that God cannot be absolved of what comes next, as he complies with Satan’s request to “stretch out your hand.” Because there is absolutely no reason to test Job’s sense of righteousness or loyalty (Job is utterly blameless, after all), God’s willingness to be drawn into Satan’s game seems reprehensible. Satan is not allowed to “lay a finger” on Job, but “everything he has” is otherwise given over to Satan’s “power.”

What happens next is as enraging as it is pitiable. Job’s domestic animals are stolen and all of his servants are murdered but one who lives to tell the tale. Lest the reader forget who is responsible, a messenger tells Job that “the fire of God fell from the heaven and burned up the sheep and the servants.” Then, a second messenger reports that “a mighty wind swept in from the desert” and collapsed Job’s house during a joyous celebration, killing his sons and daughters. Though some of the material and human harm is inflicted by wicked people and some of it by seemingly natural forces (with no clear responsibility taken by God), one might be forgiven for treating what has happened as tragic, but not unjust.

Job’s initial reaction to God’s apparent indifference to suffering is not to “sin by charging God with wrongdoing.”⁶⁸ But Job’s attitude quickly darkens, his complaints eventually do come and become more strident, as the calamities multiply and his fellow citizens reproach him for persisting with the publication of his grievances. First, the scene is oddly replayed, deepening the reader’s sense of outrage. Once again, the boastful banter between the two leads to God authorizing Satan to “ruin him without any reason,” just to see if Job will squeal. God withdraws his protection even further, now allowing Satan to lay a hand on Job, so long as he doesn’t kill him. Through God, the law now authorizes torture of an innocent man.⁶⁹

Satan promptly afflicts Job with painful sores on his entire body. Job’s wife is the first character to open her mouth and validate the horror readers are experiencing, for she advises Job to experience a moment of personal satisfaction—even though it is not the same as justice—and bring his suffering to an end. “Curse God and die!” Doubtless lost in grief herself, she sees no earthly reason for Job to keep “maintaining” his “integrity.”⁷⁰

In response, Job rebukes his wife but not God. “Shall we accept good from God, and not trouble?” What’s striking is that he doesn’t say she is wrong in her diagnosis of their plight. Job’s rebuke should not be taken as affirming the platitude welcomed by tyrants everywhere that a sovereign in its infinite wisdom is always correct. To the contrary, Job affirms that he believes God is the source of their present “trouble.”

Job also seems to be saying that she is wrong to leap from the fact of personal suffering to an indictment of the entire legal order. To insist that goodness and evil can still exist in the world despite his own excruciating pain, as Job does, is to say that we must be able to see the difference between unjust situations and an unjust order. Martyrdom would be an exercise of dissent, but would it be effective, given the reactions of those close to him? Job ultimately rejects the exit option, perhaps regarding finality as complicity in the injustice that produced his family’s agonies. Think on it: if every person who had a grievance chose to exit, then none of their complaints would get the hearing they deserve; if unjust the legal order itself would always remain so.

Thus far, injustice is the dominant theme of Job’s story. His plight is an excellent illustration of Shklar’s view that we must consider the totality of harms from injustice, not merely “tangible deprivation” but also “the psychological harm we inflict and especially the lasting anger we inspire.”⁷¹ God and Satan are actively working together—conspiring even—to harm human beings who don’t deserve an ounce of what befalls them. Responding to this atrocious behavior with the blithe reaction that power determines its own rightness would compound the horror. Yet notice that what truly gives the wrongdoing its potency is not that God and Satan are otherworldly figures, but that the traits they exhibit are utterly ordinary. It is easy to imagine human officials with enormous power over others who make similar, chilling choices.

Consider, too, the reaction of fellow community members. In the next phase of the story, Job is met by three friends who initially empathize with his plight, tearing their own clothes and weeping in a show of solidarity. They comfort him for seven days and nights, ritually acknowledging the enormity of his suffering. This powerful reminder of Job’s moral standing within the community fails to quiet his anger. To the contrary, it emboldens him to engage in his first open critique of God. Job curses the day of his birth, taking aim at God’s power to create life itself. “May those who curse days curse that day,” Job says, “those who are ready to rouse Leviathan.” His words are plaintive, heart-rending: “Why is light given to those in misery, and life to the bitter of soul, to those who long for death that does not come, who search for it more than for hidden treasure, who are filled with gladness and rejoice when they reach the grave?”

In an allusion to the form of injustice he believes he is experiencing, he cries that in death he would never have to deal with crime and slavery again: “There the wicked cease from turmoil”; the “captives also enjoy their ease” and “no longer hear the slave driver’s shout.”

But notice the next section, where Job complains that life within a legal order may no longer be worth the candle when its moral features are entirely mysterious: “Why is life given to a man whose way is hidden, whom God has hedged in?”⁷² This is a different kind of complaint, one about insufficient transparency and accountability.

His friends ignore these critiques, instead offering various kinds of advice. Originally there to soothe him, his friends end up provoking him further by trying to explain away the injustice he is experiencing. They speculate, grow annoyed, dismissive, then angry. As the conversations progress, they are quick to blame Job for his family’s setbacks and absolve the sovereign despite the absence of evidence that God is actually blameless.

The first reproaches Job for his impatience: “at the first touch on yourself you are overwhelmed!”⁷³ Two others suggest that Job and his family members must have sinned.⁷⁴ Eliphaz of Teman makes the mistake of equating visible suffering with legitimate judgment and Job’s “ineffectual words and speeches” with nothing more than “the language of cunning.”⁷⁵ Perhaps worst of all, Elihu, son of Barachel, who sat fuming the entire time, accuses Job of “add[ing] rebellion” to his sins, “bringing law to an end among us and heaping abuse on God.”⁷⁶ Here Elihu voices a fear that participating in a search for justice will lead to retribution and a corrosion of faith in the law. In the end, however, these deflections, criticisms, and efforts to speak “on God’s behalf”⁷⁷ merely deepen Job’s resolve to call the law to account.

B. Indifference and Accountability

What happens at the story’s climax is remarkable. Job appeals to God, demanding that misfortune be converted into injustice: “Put me right, and I shall say no more; show me where I have been at fault.” Justice as “fair comment can be borne without resentment,” he insists, “but what are your strictures aimed at?”⁷⁸ And again at the unseen quality of the injustice that leaves his body pock-marked and filled with “bitterness of soul,” Job cries, “Do not condemn me, tell me what your case is against me.”⁷⁹

After his initial complaint goes nowhere, Job escalates the conflict over justice by compiling and presenting his own dossier of accusations. Burt is right that Job’s response is “unprecedented and compelling.” Here I want to re-read Job’s reactions as a proto-legal action over his undeserved mistreatment that contains a structural critique of the legal order, one that insists that sovereignty must always be rendered subject to judgment. Like a contemporary theorist who might say that the nature of justice reflects the character of the political order and the systems in place, so too Job’s petition to God contends that his treatment is abusive and reflects poorly on the legal order—if indeed there is no need for justification for it and there is no recourse to test it. The sovereign’s apparent indifference to accusations of arbitrary power itself magnifies any injustices that take place.

Instead of letting go of his grievances, as his friends counsel, Job accuses God of abusing his absolute power, so that it “destroys innocent and guilty alike.” He presses on to “defend myself and select my arguments against him” even though there is no obligation on the part of God to respond.⁸⁰ “God has wronged me,” Job insists, comparing it to “violence” without recourse: “I am not heard, if I appeal against it.” Here, Job’s complaints illustrate Shklar’s concern that the sovereign can become “indifferent to the fate of other people and to the impact of his conduct on them.” Shklar analyzes the depiction of an unjust ruler that can be found in the Arena Chapel in Padua, Giotto’s Ingiustizia . The ruler is an “impersonation of injustice” because he allows bad things to happen without protecting the innocent and morally upright. Job thus complains that God, like Giotto’s unjust ruler, has become “morally deaf and dissociated.”⁸¹

Noteworthy is that even complaining about injustice has cost Job the respect of others. God’s apparently unjustified actions have “alienated my brothers from me” and destroyed his social standing.⁸² Job’s plight therefore underscores the social dimensions of injustice, not merely the tangible losses experienced by a victim. The parts that each of Job’s friends play, like the recognizable traits in the conduct of God and Satan, start out in benevolent fashion, but end up reinforcing injustice. Shklar’s conception of passive injustice seems limited (at times) to officials who have an obligation to stop unjust things from happening but fail to intervene. Yet within a political community founded on principles of justice, everyone has some obligation to avoid participating in injustice, and to not look away when it is occurring. Job himself castigates his friends, who upon witnessing his suffering and knowing of no obvious explanation for his torment, have “shut their hearts to reason.” Their mounting indifference compounds his own suffering, these “scoffers [who] are my only companions, their harshness haunts my nights.”⁸³

This poignant choice to allow a reader to see beyond what might otherwise appear as an arbitrary avalanche of misfortunes forces us to reflect on the meaning of injustice. To readers, it seems unjust the way God treats Job, even though theirs is not a democratic order but one governed by divine kingship. But perhaps his friends’ nonintervention may be excused because they don’t know the whole story. How will the law respond?

Suddenly, God appears to Job in a whirlwind. After God asserts his ability do great works as a way of establishing his legal authority, Job openly acknowledges the sovereign as “all powerful.” God then does an aboutface. Instead of striking Job dead for blasphemy or disloyalty, he restores Job completely. But that is not all. God then turns to rebuke his friends. They are not to be given a pass after all, but instead must stand and be judged for their responses to Job’s claims of injustice.

This final scene gives the strongest indication that legitimating a sovereign’s exercise of arbitrary power or demanding blind loyalty from the subjects of law are not the main point of the story. Instead, because God ultimately chooses to be bound by law as integrity, the unremedied abuse of power (or arbitrary power) is confirmed as the antithesis of justice. Moreover, the moral of the story establishes both a duty to hear claims of injustice and the central role of responsibility-taking. Once Job ritually acknowledges the value of obedience to the law, God instructs those who have tried to minimize Job’s sense of injustice and the legal anomalies he has identified that they have wronged him. We are told that God “burn[s] with anger” against them “for not having spoken correctly about me as my servant Job has done.”⁸⁴

It is Job’s friends who have sinned against Job, and so they must atone. Their actions have reinforced passive injustice. Those who were fearful of upsetting God failed to share and amplify Job’s justifiable outrage. Some even tried to convert his mistreatment into mere misfortune. On the other hand, if they ritually acknowledge the error of their ways, as a show of favor to Job who was always in the right, God “shall not inflict my displeasure on you.” So individual atonement is possible, as well as repair of communal bonds, but only after the assumption of responsibility for injustice.

Turning away from acute suffering and a person’s seemingly justified sense of outrage is not the proper response to a claim of injustice. Nor is lobbing unfounded attacks on the complainant’s sincerity or gesturing towards forces at work beyond human comprehension as reasons for nonaction. God’s reaction powerfully suggests that all members of the political community have an obligation to get to the bottom of a fellow citizen’s justice-based claim (how this is to be accomplished is another question). Job’s neighbors have failed him, adding to his misery by not demanding enough justice.

But will God’s reprimand alone be enough to prevent future injustice, especially in a more complicated political order? There are reasons to be skeptical. What is missing from the story of Job is the role that institutions can play in interrupting patterns of injustice and inculcating better civic habits—of which love of justice must be accorded priority.⁸⁵ These bodies need not be permanent features of the legal order, but could be temporary gatherings of elders or figures respected by the community capable of hearing grievances and instilling a sense of mutual obligation. However constituted, the key is that a social organization with power has internalized the project of justice, understands how to render judgment, and is capable of designing solutions likely to be accepted by the people.

Machiavelli, for instance, praises such a group of Florentines that steps in to disrupt a cycle of violence between nobles and the people.⁸⁶ The nobles have grown “insolent” and believe themselves to be justified in their violence because of their historical grievances. They seek to reclaim “honors taken from them and the laws made against them,” but they were also characterized by “pride and their bad government.” By blocking the ability of the Gonfalonier of the people from doing justice, the nobles made regular people fearful to serve as witnesses against them, and people suffered “because the judges were slow and their sentences lacked executions.”⁸⁷ The law has once again become corrupted, simply a vehicle by the which the powerful dominate the weak.

For their part, the people have turned to unrestrained means to fight back, based on their superior “number, riches, and hatred” for the nobles. Eventually, a mediating institution emerges to convince each side to lay down their arms by revisiting the past in a way that permits the warring factions to move beyond their own narrow self-interest and begin to think again about the common good. This group includes men “of good repute,” some of whom are noblemen, some from the people, and certain religious figures. Elites are persuaded to remember their own role in losing some power, while the people are reminded of the wisdom of restraint, not insisting upon “ultimate victory,” which makes political enemies “desperate.” Institutions are reorganized to satisfy the nobles but also reduce the possibility for future mischief, and “some anger and suspicion remained,” but people are able to live “united in peace.”⁸⁸

It is essential for a people to love justice, but increasingly complex societies are awash in competing historical grievances. Institutions capable of mediating concerns and converting outrage into socially beneficial solutions is indispensable to the pursuit of justice.

IV. Uncle Tom’s Cabin: the Political

Economy of Injustice

“It is your respectability and humanity that licenses and protects his brutality.” — Uncle Tom’s Cabin , Chapter 31

At times, a citizen may be able to contemplate something monstrous only after reading a text where everyday injustice is perpetrated with little apparent discomfort. This describe the situation in 19th Century America, where liberalism, civic republicanism, and the rule of law held together an ambitious and increasingly diverse people, some of whom fervently believed that slavery was integral to the political economy. Yet to opponents of slavery, the very institutions created to serve justice had become better at thwarting it.

The prospect that one’s moral intuition is right and the law is wrong creates tensions among our rights and duties and can present enormous difficulties in the various civic roles that one must play within a legal order.⁸⁹ Yet navigating those very tensions allow citizens to figure out which practices and beliefs are dampening the capacity to reason about what, exactly, is unjust about a situation.

Beyond this gap between formal law and actual beliefs, the pursuit of justice is made even more challenging once we acknowledge that in a diverse society people can in good faith reach different conclusions about what justice demands. That the substance of the rule of law is deeply contested, even in a society where people agree to be governed by the same higher law, magnifies the psychological tensions in each citizen and creates cleavages in normative bodies of thought that have a claim on each of us.

A. What Dampens Moral Outrage?

Harriett Beecher Stowe’s Uncle Tom’s Cabin , published in 1852, became an immediate sensation.⁹⁰ Originally told in serial form, Stowe’s story was instantly received by abolitionists as a “godsend destined to mobilized white sentiment against slavery.”⁹¹ Frederick Douglass’s newspaper deemed it a “touching portraiture” that “evinced great keenness of insight into the workings of slavery and a depth of knowledge of all its various parts,” as well as for presenting a potent case “in favor of the ‘Higher Law’ theory.”⁹² As Douglass himself remarked, “nothing could have better suited the moral and humane requirements of the hour.” In particular, he lauded the book’s “instantaneous” and “universal” effects.⁹³ More important for our purposes, the story illustrates how within a maturing political order, injustice has many sources and methods of sustaining it. That means a theory of unfreedom will have to keep up with the increasingly complex forms of political order that emerge.

The book opens with a scene involving a white Kentucky farmer and slaveholder, Arthur Shelby, conversing with an unsavory slave trader named Mr. Haley. Shelby is in Haley’s debt, and the latter wants some of the farmer’s slaves to pay off some of the debts. If Shelby refuses, he will have to sell the entire farm. Throughout the tale, the political economy of slavery—that is, a plantation-based way of life fused to a capitalist society and protected by the rule of law—structures the interactions of master and slave, husband and wife, parents and children.

The contradictions over foundational values are in plain sight, though not all are willing to reflect upon their moral quandaries as democratic citizens. A “gentleman,” Shelby is able to live in “opulent circumstances” on his plantation with the aid of slave labor. In fact, the two men are in the midst of haggling over price of Tom, an enslaved person Mr. Shelby would like to sell to pay down some debts. Shelby emphasizes Tom’s positive traits—he’s “steady, honest, capable”—as a way of demanding a higher price. Haley replies with a degrading racial epithet as a way of driving the price downward, and asks if whether Shelby has “a boy or gal you could throw in with Tom.”

The ease with which white slave master and white slave trader haggle politely over the monetary value of black flesh and black labor is horrifying. After all, they are discussing uncivilized matters in an incredibly civilized setting. Indeed, for a fleeting moment, Shelby is taken aback by the demand for recompense in the form of a child, insisting that he’s “a humane man” and would “hate to take the boy from his mother.” Yet the notion of human dignity is itself deeply contested or else confused in this society, for the slave trader himself believes that he is acting morally upright within a capitalist order based on slavery. “Humanity … is the great pillar of my management,” he declares, confident that he loses ‘as few as any man in the business.”⁹⁴

Moral discomfort itself comes to play a persistent role throughout the tale. When it appears, the sensation operates as a signal to readers that as citizens we must develop our own sense of injustice, one not simply coterminous with received wisdom, the content of secular law, or even religious teaching.

At the same time, the momentary discomfort exhibited by the characters is not always to be trusted, because it is not the same as democratic outrage, which requires a political outlet. What many of these characters experience is no more than a private pang, sometimes expressed as a useful social lubricant. However, it is a feeling that comes and goes. Much of the time, characters push past their personal discomfort and perpetuate an inhumane act, as Shelby does when he ultimately decides to sell Tom and Harry to the slave trader.

John Rawls has described the sense of injustice as a “psychological construction” that allows citizens to experience “moral feelings [such] as resentment and indignation but also … natural attitudes as mutual trust and affection.”⁹⁵ He analogizes to feelings of guilt, separating the pangs of conscience one might feel into three categories: authority guilt, association guilty, and principle guilt.⁹⁶

These notions deepen our appreciation of the conflicted sentiments at work in Stowe’s tale, as well as when they break down. For Shelby, rational economic self-interest appears to be a driving factor in dampening a sense of injustice, that is, his willingness to act against his associational interests by breaking his promise to his wife and sever any friendship bonds with Tom. But that is not the only relational or psychological dynamic in play.

When Tom learns of Shelby’s plan to sell him, he appeals to his master’s sense of association guilt, as they have known each other all their lives. He also appeals to the potential for authority guilt, since they share not only a Constitution but the same God. “I was j[u]st eight years old when ole Missis put you in my arms … take good care o[f] him,’ says she.”⁹⁷ Now “have I ever broke word to you, or gone contrary to you, ‘specially since I was a Christian?”

However, it turns out that in Shelby’s eyes, Tom is simply not a member of the relevant community to which legal obligations are owed. Despite Shelby’s obvious disgust for Haley, he brushes past those feelings and chooses to engage in commercial transaction of the flesh. By contrast, Shelby has ties of affection and religion with Tom, but he bows to the logic of the economic order. Shelby is moved to tears by Tom’s personal appeal not to sell him, for “tears rose to his eyes” and he acknowledges that “the Lord knows you say but the truth.”⁹⁸ He allows that “if I was able to help it, all the world shouldn’t buy you.” But the world they both inhabit is arranged differently.

While it does not dictate outcomes, the political economy nevertheless powerfully shapes citizens’ incentives in this world as well as their interpretation of civic and legal obligations. Doing the morally correct thing may require paying a cost in material wellbeing or social esteem, and fewer will be willing and able to do so if a society is not well ordered.

In the end, Shelby plays the role created for him by the political economy. He feels no authority guilt, reasoning that he respects the economic obligations and expectations of fair dealing owed to the slave trader, though they are not friends but strangers. Those are the “mutual ties” that prevail. Shelby does not feel that he owes Tom or any other enslaved person a duty that would overcome his own family’s economic self-interest or the peculiar socio-legal ordering of a plantation society. He feels many things, but not in the end, principle guilt.

His psychological ordering toward the law is dramatized poignantly when he discovers that Eliza has fled with her child, and Shelby enacts the role expected of a “fair-dealing” and “honor”-bound party to a legal contract. When Haley expresses displeasure at his loss after having “made a fair bargain,” Shelby responds that he “shall feel bound to give you every assistance, in the use of horses, servants, $c., in the recovery of your property,” even if for no other reason than to persuade the purchaser that he did not break their bargain by encouraging slaves to escape.⁹⁹

Mrs. Shelby, who declares slavery “a sin” and vows to find a way to buy Tom back, nevertheless has not forsaken the fruits of enslaved labor.¹⁰⁰ The Shelbys may feel slightly “degraded and annoyed” by having to deal with a slave trader, but both of them “saw the absolute necessity of putting a constraint on their feelings.”¹⁰¹ Husband and wife nod to each other in agreement that the slave trader is “a man alive to nothing but trade and profit,” but refuse to confront the fact that at the end of the day they, too, are driven into his arms by their own cold economic interests.¹⁰² They conclude that Haley is “not a cruel man, exactly,” but they are unwilling to see that beneath their civility and Christian charity they, too, might not be cruel, exactly, but are also willing to deal evil to other human beings.

To ripen into democratic outrage, such private feelings of disgust or shame would have to be channeled into politically-salient acts of public defiance or programs for legal change. It is not enough, for instance, to promise not to sell an enslaved person’s children out of Christian charity, or to offer education privately, as Mrs. Shelby does for the slaves who serve her and of whom she has grown fond. A sense of injustice would even have to venture beyond the boundaries of their plantation, so that the Shelbys do not simply comfort themselves with a utilitarian calculation that selling off two human beings could be justified by maintaining the welfare of everyone else on the farm.

At any moment, a decision involving an enslaved person might force codes of religious or social fellowship to bow to the logic of a plantationbased economy backed by slavery’s laws. So while Mrs. Shelby is upset at the knowledge that loyal servants have been sold off and refuses to serve as “an accomplice or help in this cruel business,” she is willing only to console her servants to show that “their mistress can feel for and with them.”¹⁰³ In Shklar’s parlance, Mr. Shelby is actively participating in the injustice of breaking up a family and shipping off a beloved servant, while Mrs. Shelby, also an active participant in injustice, thinks she is avoiding judgment but in reality facilitates further injustice. Compassion ends up being the salve that eases feelings of guilt or remorse, dampening outrage and allowing monstrous transactions to take place.

Unlike the Book of Job, there is no single law-giver personified in this story. Instead, law—both what higher law indicates is right and true, and what ordinary law permits—remains subject to human interpretation and individual choices. Both sovereignty and responsibility are diffused throughout the legal order and, at the same time, obscured by legal and political complexity. These features of power relations also make it easier for unjust practices to thrive.

By immersing ourselves in Stowe’s world (a fictional portrayal based on actual circumstances) rather than one imagined by liberal theorists or projected by jurists, we can envision that the injustices perceived by some citizens are simply not seen in the same legal or moral terms by others. Mrs. Shelby experiences a direct conflict between God’s law and man’s law, while Mr. Shelby simply tells her that she “differs from many wise and pious men,” including ministers who believe that slavery can be squared with Christianity.¹⁰⁴ Human law is omnipresent, reinforcing a political and economic structure in ways that are both unseen yet felt by all. Lurking behind every interaction, hushed conversation, and desperate whimper for personal bonds to be respected lies the cruel political economy of the slaveholding society.

B. Agonizing Choices

“Who made this man my master?” shouts George, a man who is enslaved by a different household and married to Elia, who serves Mr. Shelby’s wife. But George’s master has a different view. “It’s a free country” he says, and American law tells him that “the man’s mine, and I do what I please with him.”¹⁰⁵ George has been hired out by his master to a bagging factory, where he excels as a worker. He also displays a knack for building new and useful things. Despite George’s obvious talent inventing machines, his master suddenly feels “an uneasy consciousness of inferiority,” demands his wages from the company, and puts George back to “the meanest drudgery of the farm.”¹⁰⁶ He makes an economically irrational decision, but the political economy of slavery does not unerringly produce efficient outcomes, despite what its most ardent defenders like to tell themselves. Squandered talent accompanies other economic losses. The accumulation of wasted talent flows not just from the inability on the part of enslaved people to profit from their own labor, but also the periodic work slowdowns and other acts of individual and collective defiance against the inhumanity of slavery.

For Eliza, the friction between the Christian injunction to love thy neighbor and the dehumanizing nature of ordinary law is confusing, for she has long assumed perfect compatibility between the two bodies of thought. “I always thought that I must obey my master and mistress, or I couldn’t be a Christian.”¹⁰⁷ It is terrifying to imagine what true moral agency might look like, for living within such an order requires constantly evaluating the various tugs of loyalty to different belief systems. To George, on the other hand, the already miserly spaces for any semblance of autonomy have been crushed by his master. “I ain’t a Christian like you, Eliza,” George tells his wife. “My heart’s full of bitterness; I can’t trust in God. Why does he left things be so?”¹⁰⁸ Like Job, George demands answers but must navigate the treacherous social forces that impede the recognition of injustice.

Unlike Job’s community, God is nowhere in sight. Not only does the law’s unjust character stir resentment and a sense of being abandoned, George’s evaporating belief in the rule of law—no longer tethered to morality—spills over to extinguish personal faith in religious law. God might exist, George’s answer implies, but his failure to intervene to stem widespread suffering and destroy the system of slavery means that belief in Him is unjustified. And if Higher Law is incapable of remedying large-scale suffering, or the sovereign is indifferent or cruel by nature, then George will have to go a step further than Job’s example—he must take the law into his own hands.

Consider, too, the central role that labor plays in George’s altered political sensibility. George has his first taste of self-mastery when he is loaned out to the factory, and it is striking that his labor consciousness is what prompts him to defy the low expectations of servanthood and non-citizenship thrust upon him. He has worked productively at something he is good at, and this development ultimately surprises all around him and destabilizes the economic role that slavery’s law has established for a black man. Transformed by his own labor, George can no longer bear his state of unfreedom.

Still, what good is a sense of injustice if there appears to be no constructive outlet for democratic outrage? If rebellion is too hard to imagine, and striking down his master is out of the question, then exit emerges as a tempting solution if George wants to continue thinking himself a man while the law does not. “I wish I’d never been born!” he tells his wife repeatedly.¹⁰⁹ Further conversation shows that he has for now put aside thoughts of suicide, and that his mind is made up to run away to Canada. If he makes it to free soil, he vows to purchase the freedom of Eliza and their son from their enslavers.

Eliza makes a similar decision to flee with Harry once she learns that Mr. Shelby will not make good on his wife’s promises to keep Eliza and her son together. But there is more than one way to exit the political community, and a different character’s decision to leap into the river after her child is sold illustrates the possibility that an oppressed order will force some freedom-loving individuals to choose death over prolonged degradation and heartbreak.

As Albert Hirschman once explained, every political organization confronts problems of voice, loyalty, and exit;¹¹⁰ a constitutional order merely presents these related choices on a grander scale. A sharply reduced voice naturally erodes an individual’s sense of loyalty, and that individual then must make choices between strategies to improve agency and influence or separate from the community altogether. At the historical level, Hirschman observes, “the ideology of exit has been powerful in America.”¹¹¹ Despite much dreaming about this possibility, political exit is harder to accomplish and has rarely led to lasting changes.

The options for enslaved people acting upon their own sense of injustice in the face of indifference are thus illustrated by each of these characters: if you have voice, you might work within the electoral system to reduce harms or abolish slavery; if the law denies political agency, then exit—or else more aggressive, even violent, forms of resistance may become attractive.

But just how far may one go? Later, when George and Eliza are reunited, along with their son, the principle of self-defense is illustrated in literary fashion to endorse targeted resistance of slavery. When a slave catcher has them seemingly trapped on a mountain, George declares himself “a free man, standing on God’s free soil”¹¹² while his would-be captors consider themselves “officers of justice… [with] law on our side.”¹¹³ This scene is described by Stowe as a “declaration of independence… as if appealing from man to the justice of God” with hand to heaven.¹¹⁴

Yet self-liberation and self-defense, which must take place sporadically if at all, and only upon great risk to life, can provide individual relief but not a large-scale solution. Forms of self-help such as escape or resort to self-defense clubs leave the underlying political and economic conditions in place. This also explains why justifications for armed rebellion against grave injustice expand (and in the eyes of sympathizers appear more reasonable) when avenues for conventional legal change begin to dry up. At the same time, instances of resistance and escape elevate concerns about safety and comfort for others.

One poignant scene depicting a conversation between two unnamed white ladies on a boat carrying slaves down the river illustrates the politicalcultural gulf between abolition and comfort. The first woman, upon seeing human beings in chains, cries out, “What a shame to our country that such sights are to be seen!”¹¹⁵ But a second woman retorts that “there’s a great deal to be said on both sides of the subject.”¹¹⁶ When the first woman expresses special disgust at the separation of families and asks her travel companion to imagine her own children being taken and sold, the second woman rejects that search for empathy. Instead, she insists, “We can’t reason from our feelings to those of this class of persons.”¹¹⁷

Neither woman intervenes; once again, moral discomfort fails to ripen into democratic outrage. We learn nothing else about these characters, so it is not possible to exclude rational self-interest as a motivation. Regardless, the alchemy of various forces in play—whether the economy, religion, law, white supremacy, or something else—has short-circuited the moral process and prevented the possibility of political solidarity based on appeals to shared humanity.

The way Stowe concludes Uncle Tom’s Cabin stirred further outrage among readers, along with praise for her accurate depiction of the inhumanity of a society dependent on a slaveholding economy. It is less surprising that the good Christian Tom refuses to strike down his cruel new master, Simon Legree, when asked to do so by another enslaved person—only to meet his tragic end when Legree beats Tom to death. For a legal order based upon the systematic dehumanization of some for the pleasure of others will merely allow such losses to be written off, less as unconscionable violations of the legal order than the anticipated costs of doing business. This is indeed a bleak message: higher law cannot of its own volition penetrate the darkness of the master’s domain to discipline, or alter its basic structure, and religion offers only salvation for the “desponding souls of the desolate” rather than predictable relief from physical brutality.¹¹⁸

The story’s resolution for George and Liza stoked further outrage among some readers, for the characters are shown achieving freedom only by choosing to depart the United States, becoming educated in France, and then setting sail with their family for Liberia. George writes that enslaved people have a claim for reparation, but “I do not want it; I want a country, a nation, of my own.”¹¹⁹ But to valorize this option—exit plus resettlement elsewhere—is to endorse the unfortunate message that the political order can no longer be redeemed or that black people will never be capable of participating in democratic politics in the United States.

On this view, the dream of a multi-racial democracy in which former slaves (and perhaps other marginalized populations) can someday participate on an equal basis is sheer fantasy, and so neither civic equality nor a shot at economic prosperity is worth pursuing.¹²⁰ This concluding message undermined the otherwise vivid rendering of the moral agency of individual characters, enslaved or free, and their desire for the law to better accord with religious aspirations. The ending may have been more palatable to white readers of the day, but if that was the author’s motivation, we have a text whose ending itself helped perpetuate passive democratic injustice. It does so by not expecting citizens could demand, or expect, more than racial separation.

V. Up From Injustice: The Heroic Slave “Know ye not, Who would be free, themselves must strike the blow.”—Childe Harold

As a constitutional order ages and political grievances multiply, more citizens experience democratic heartbreak—a perception that governing institutions no longer serve the ends of justice and that democratic outrage has become ineffectual. Despair over the state of political life can become so acute that either withdrawal or decisive action seem the only options. If unremarked upon and left unchecked, alienation can corrode the bonds of civic fellowship and undermine the rule of law. As an approach, reasoning from injustice treats the many sources of democratic heartbreak to be concerns of the highest order.

One of the most profitable ways to grasp the depths of democratic despair and how to wrestle with the sentiment constructively is to plunge into the rich body of literature produced by the black community.¹²¹ For the sake of brevity I will limit myself to the writings of Frederick Douglass, who escaped from bondage and became one of the most dedicated and influential figures seeking to provoke Americans collectively to reason from injustice to justice. The short story, The Heroic Slave ,¹²² represents his answer to Stowe’s depiction of repatriation as the best solution and her skeptical view of Black Americans’ democratic capabilities. Originally published in 1853 in a volume of abolitionist writings, the novella conveys Douglass’s convictions that: (1) intellectual and social transformation of a mostly white citizenry is essential for ending slavery; and (2) former slaves must take a leading role in securing true equality; and (3) together with free citizens, the civic objective is to reason their way to a shared political destiny.¹²³

More broadly, the story represents Douglass’s belief that righteous anger loosed upon the social foundations of injustice can be an effective salve to disappointment. Douglass, who liberated himself from slavery, served as both a witness to the political economy of injustice that existed in 19 Century America as well as a symbol of the resilience of black people.¹²⁴ With great eloquence, Douglass lamented “the cold blooded indifference”¹²⁵ that blinded some white citizens from the fact that black people “have all the feelings common to humanity.” Douglass frequently assailed religious justifications offered in defense of slavery, saying that true believers would actually consult “the better feelings of humanity” and the tradition’s special concern for “the weak, the feeble, the distressed, and the outraged.” And he insisted the law itself must be overcome in the name of natural justice.¹²⁶

And yet shaming as a strategy can only go so far. To pierce a culture of indifference and stimulate egalitarian politics, Douglass realized it would be necessary to counteract the image of a perpetually helpless class of people. Enter: the novel as a roadmap for melancholy politics.

A. Self-Liberation and Civic Virtue

The Heroic Slave is a fictional account based on true events: a successful 1841 slave revolt where 128 enslaved people on a ship bound for Louisiana overtook the crew and forced the ship to be navigated to the Bahamas. There, they eventually won their freedom under British law. Douglass’s conceit is to tell the story through the eyes of white observers of black slaves who fight for their own freedom. There appear to be two reasons for this narrative choice: first, Douglass seeks to rectify the historical canon, which has erased stories of black liberation; second, he hopes to convey his view that injustice is perpetrated in part through dominant cultural skepticism about black people’s democratic capacities. It is not merely a story about friendship or cross-racial alliances, although both ideas are present in the tale. It is also an inspirational account of how to overcome demoralization about injustice by taking seriously—and co-opting—a constitutional republic’s most treasured principles and languages of power.

Douglass opens the story by observing that, while the Commonwealth of Virginia has been celebrated as “the mother of statesmen,” a number of natural-born figures, especially Madison Washington, the black hero of this tale, has been blotted out from the history books through “some strange neglect.”¹²⁷ The narrator, like many Americans, vaguely senses that a society’s methods of accumulating and disseminating historical knowledge has played a part in perpetuating injustice, but possesses no deeper understanding of these intricate processes.

One thing Douglass is sure of, however, is that every justice-based movement needs its role models and action plans. Accordingly, he aims to restore Washington to the pantheon of revolutionary heroes, since he was “a man who loved liberty as well as did Patrick Henry” and “deserved it as much as Thomas Jefferson.”¹²⁸ Alas, the evidence of this figure largely “lives now only in the chattel records of his native State.”¹²⁹ In this fashion, Douglass offers a valuable reminder that the discipline of history—shaped by human choices about who and what is worth remembering—itself can serve as an impediment to justice by helping to naturalize the existing political order. History itself, like the slaveholding mindset, must be overpowered. Yet without heroes of one’s own and close interactions between oppressed people and free people to pierce historical untruths, it is not possible to move from a state of injustice to conditions that approximate justice. This is how reasoning from injustice in the abstract becomes, in a practical sense, something more than disaggregated awareness of social pain on the ground.

At the same time, on the subject of legitimate ways to respond to injustice, the author eschews the more unruly tradition of revolutionary violence in favor of justice tempered by liberal principles—primarily that of self-defense. We know this is Douglass’s view because three times a white citizen encounters an enslaved black person, and each time the first man’s knowledge about the conditions of slavery increases and his movement toward abolitionism deepens. In Shklar’s parlance, a citizen who has been passively unjust begins a journey to a new mindset and set of political commitments. Mr. Listwell, a white Northerner, first stumbles upon Madison giving a soliloquy in the woods near the plantation where the latter is enslaved. In this one-sided encounter, Listwell remains hidden and eavesdrops on Washington while he complains aloud that “living under the constant dread and apprehension of being sold and transferred, like a mere brute” is too much to endure. Wrestling with his political melancholia, Washington eventually vows to the Heavens that he will secure “the inalienable birth-right of every man” to liberty by escaping, or die trying.¹³⁰

As Listwell watches Washington grapple with democratic heartbreak, a sense of injustice stirs within him for the first time. The white man, who had long wondered about the inner life of a black slave, found Washington to be “of manly form,” seeming to possess “the strength of the lion.”¹³¹ The enslaved man’s “heart-touching narrations of his own personal suffering” allows the scales to fall from Listwell’s eyes.¹³² For the first time, he is able to see Washington not as an abstract idea but rather as “a child of God, —guilty of no crime but the color his skin.”¹³³ Seeing a persecuted figure “goaded almost into madness by the sense of injustice done to him” and making plans “for his own deliverance” converts the white observer into an abolitionist.¹³⁴ “From this hour,” Listwell vows to return to Ohio and “atone” for his “past indifference to this ill-starred race” and work for emancipation.¹³⁵

Although Listwell was not himself an active oppressor like Saul of Tarsus, his roadside conversion to abolitionism evokes how Saul became Paul. Additionally, while Saul hears directly from God on the journey to Damascus, Listwell receives the voice of reason through the words of an enslaved person himself. These differences are salient to the particular injustice of slavery as understood by Douglass—and crucially, a literary example of Douglass’s dialogic theory of how white citizens and black people, especially those still denied the capacity to become full members of the polity, can “reason together” in a constitutional republic. A key trait of citizenship for Douglass, then, is openness to one another’s civic experiences as well as (and with Job) potential claims about unjust practices.

Even so, the crucial members of society to be converted from wickedness to love of humankind are not necessarily the slaveholders, but rather the citizens standing on the sidelines and enslaved people themselves. It is they who must be provoked to side with the oppressed. God, nowhere to be found, is unlikely to intervene directly in mankind’s affairs, as he did in response to Job’s petition. Whether God has withdrawn or is a mirage, human beings must struggle for justice by navigating the competing visions of law and religion, each claiming to be the true representation of what is good and noble.

The two men later meet and speak for the first time after Washington has taken flight from Virginia. Listwell offers him temporary shelter. During that conversation, their second encounter, Listwell learns more about the mindset and conduct of slaveholders. This knowledge of the intricacies of slaveholding further pierces the propaganda spun by state officials and members of the planter class. To Washington, the “cowardly acquiescence in their own degradation” on the part of the enslaved was part of the problem. He deemed this mental state of “contentment with slavery” “treachery to freedom.”¹³⁶

By this second encounter, Listwell has met Gerrit Smith, a noted theorist of abolition, who wrote that the Constitution was not irredeemably pro-slavery but could be read to promote anti-slavery aims— an influential figure in Douglass’s own steady drift away from the Garrisonian interpretation of a corrupted Constitution.¹³⁷ After all, a thoroughly discredited text cannot be leveraged for political and legal change, but should be repudiated.

On this visit, Listwell listens intently as Washington describes, face to face, what it feels like to be trapped in a liminal state between subjugation and freedom: “robbed by society of all my just rights,” as if in “an enemy’s land.”¹³⁸ He also learns that in choosing personal exit from an unjust order, Washington has abandoned a wife and two children, causing him “indescribable anguish.”¹³⁹ Especially noteworthy is that as a runaway slave, he remains subject to the possibility of recapture and recommodification given the enduring political economy, “ma[king] merchandise of my body” under the law.

As the author, Douglass takes pains to point out the legal threat that looms over any interactions between Washington and Listwell: Ohio’s criminal laws are “very stringent” in prohibiting aid to a fugitive slave. For the simple act of sharing a carriage with a slave on the run, one person had been “stripped of all his property, and thrown penniless upon the world.”¹⁴⁰ Beyond bounty laws and other mechanisms to incentivize active injustice, the criminal law thus promotes “passive injustice” in several ways. First, by invoking criminal and economic sanctions for rendering humanitarian aid to an enslaved person, the law corrodes feelings of mutual concern. Second, the law also pits enslaved people against one another, something depicted later when a white man later in the story recognizes that a slave’s acquiescence to conditions of servitude “may be to act wisely.”¹⁴¹ This ethic of suspicion is narratively dramatized when Washington hides in a tree while another slave leads a group hunting for him. Third, such anti-aid laws exploit federalism to foster the impression of harmonious communities and economies existing side by side, even though the truth is much more integration and mixing of people, resources, along with profit and degradation from slavery than many elites would care to admit. This separate values discourse, too, encourages citizens to look away from injustice when it occurs in another state from where one lives. In these overlapping ways, anti-aid laws urge citizens to ignore severe mistreatment and deprivation.

A fresh convert to abolitionism, Listwell is equipped to ignore these legal risks because of his newfound anti-slavery consciousness. Propelled by a maturing sense of justice (and unlike either Mrs. Shelby or the women on the ship in Stowe’s tale), he intervenes in political affairs for the first time, sheltering Washington in his own home and acknowledging their shared humanity. The Heroic Slave thus conveys Douglass’s view that laws fostering passive injustice must be overcome through a transformation in thought and action—just like those that license active injustice. Here, then, is a model for melancholy politics: focusing on tangible deprivations of others awakens political consciousness; the law must be overcome before it is to be changed; and although justice may come in small doses at first, through more intimate interactions, the law can formally changed once its social foundations have been eroded.¹⁴²

The third occasion the two men meet is for the final time: at a slave auction in Richmond. After reaching Canada West, a haven for freed people, Washington remains wracked by a sense of incompletion because while his family remains in bondage, “my body, not my spirit, was free.”¹⁴³ He returns to liberate his wife and children, but is recaptured. Listwell learns about the slave auction where Washington is to be sold and sent down river. He rushes to the place, determined to “satisfy his conscience,” now believing it to be “the immediate duty of every man to cry out” against slavery.¹⁴⁴ Horrified to witness “humanity converted into merchandise,” his abolitionist beliefs are amply confirmed by the visual evidence of the damage wrought to “mothers, fathers, daughters, brothers.”¹⁴⁵ The humanitarian costs do not outweigh the economic gains from “fill[ing] the pockets of men too lazy to work for an honest living.”¹⁴⁶ Displaying the fresh abolitionist legal knowledge he has acquired, Listwell likens slave traders to pirates, whose behavior lies outside the bounds of morality and civilization, individuals who “plunder” the helpless and “traffick[] in the souls and sinews of men.”¹⁴⁷ Nevertheless, far too many citizens are “neither shocked nor disturbed” by this form of human trafficking. The inconsistency of denouncing other forms of piracy but not the slave trade “is so flagrant and glaring,” as to render “strange and perverse” the moral sentiment contained in American ideals.¹⁴⁸

Listwell dashes to a hardware store and purchases three metal files, which he slips into Washington’s hands as he and other enslaved people walk past to board a ship. This act of solidarity is pregnant with symbolism, as it suggests that white abolitionists need only perform a similarly small but bold act of “service” rather than act as liberators themselves.¹⁴⁹

Thus, both the details and the narrative structure of the story reflect Douglass’s belief, expressed elsewhere in his speeches and nonfiction writings, that the precondition of self-governance was “the right of every man to his own body, to his own hand, and to his own heart.”¹⁵⁰ It is a robust vision of political justice that holds that democracy is not just about a set of institutions, but a way of life requiring each citizen to constantly prove one’s commitments through collective action.

By acting upon his sense of injustice, Washington is able to counteract his democratic heartbreak. Along the way, he passes through several stages. He starts out as a “slave” and “piece of merchandise,” becomes recognizably “human”¹⁵¹ and even a “friend,” but remains a “noble fugitive” when retaken and sold at the slave market. Finally, in winning freedom for himself and others shackled together aboard the ship, Washington emerges as a “heroic chief and deliverer.”¹⁵²

Listwell, too, is transformed through melancholy politics in action. Once a curious observer, he turns into a lawbreaking harborer and ultimately a supporter of armed insurrection—albeit for a higher cause. His position relative to revealed injustice shifts with every additional choice he makes: listening to a stranger, seeking out new information from allies of the oppressed, harboring a fugitive slave, and finally, rendering aid to a group of enslaved people.

Even so, this story about disrupting the political economy of injustice raises the age-old problem of when illegal action, and perhaps countervailing violence, is justified to end the dehumanizing of others. I don’t mean to stake out a view on that normative question here as much as to underscore that one of the benefits of reasoning from injustice is to provoke the political community to reflect on this excruciatingly difficult project of line-drawing and justification.

In his cautious endorsement of political violence, Douglass stakes out a middle ground between the complete submission to the rule of law demanded by slaveholding elites and fulsome revolutionary violence advocated by others, such as David Walker. At the same time, he also parts ways from Garrisonian nonviolence as the exclusive means for effectuating legal change.

This is consistent with Douglass’s evolving view that the natural right of self-defense (even if not recognized in positive law) justified resistance to slave catchers. In January 1851, he would argue that, at times, in the name of “Human Brotherhood,” it was necessary to go beyond the strategy to “frown slaveholders down” through “indignant flashes of our eyes.”¹⁵³ “If any one should attempt to take me into Slavery, I should strike him down,” vowed Douglass. “Not with malignity, but as complacently as I would a bloodhound, and think I was doing God service.”¹⁵⁴

He offered three justifications for the use of force to resist slave catching: (1) a harm reduction rationale: black people, who should enjoy a presumption of innocence, are sometimes mistakenly kidnapped, and “the rights of the assailed” can be protected, “but only by their own strong arms”; (2) a deterrence rationale: because slaveholders do not actually respect states’ rights, those who believe in liberty “must set some examples” where slave catchers are forced to return to their jurisdictions emptyhanded; and (3) a deliberative rationale: concerted defiance of the Fugitive Slave Law, which abolitionists considered a “kidnapping law,” would not merely “make this act nugatory,” but it would “strike a blow at Slavery” by demonstrating “common sentiment” that the law is “unconstitutional” and “unrighteous.”

Still, Douglass unmistakably recoils from the bloodier tradition of revolutionary violence. Instead, he opts to convey, through narrative choices and the words of his characters, a liberatory vision in which violence is justified only as a last resort, and even then, to be carried out under strict notions of self-defense and necessity. Not only do the escaping slaves leave survivors behind who are well treated, they also steer the vessel back toward civilization and prostrate themselves before the rule of law once again.¹⁵⁵

These republican themes of liberation through self-mastery and crossracial alliances, within the bounds of law, are capped by the final scene: the enslaved men free themselves and take command of the vessel, redirecting it to a free port. The events are recounted and discussed from the white sailors’ point of view—reinforcing the necessity of transformation of the political imagination. One man, who was not aboard the ship, hears the story and boasts that the way to quell a slave uprising “is to show yer not afraid of ‘em.”¹⁵⁶ The first mate, a Southerner who actually lived through the insurrection, disagrees. He points to the role that law plays in ensuring a servile attitude on plantations as well as perpetuating a false sense that black people are meek by nature. But even someone who once accepted the narrative of racial inferiority comes away a changed person. “It is quite easy” to talk of flogging black people “here on land, where you have the sympathy of the community, and the whole physical force of the government, State and national, at your command,” whereas “if a negro shall lift his hand against a white man, the whole community, with one accord, are ready to united in shooting him down.”¹⁵⁷

By contrast, the first mate was persuaded that when such legal and political factors are taken out of the equation, that is to say, human beings find themselves in a setting where legal expectations and social norms are at their lowest ebb, one would have to “deny that the negro is, naturally, a coward.”¹⁵⁸ He is impressed by the “courage and skill” of the black men who seize control of the ship and steer it toward freedom. Washington, in particular, not only demonstrated a strong command of the English language, but also rapidly “secured the confidence of every officer” on board.¹⁵⁹ So, too, was there virtue in his insistence upon moderation in the use of violence. Washington tells the crew that they disclaim “murder,” for “liberty, not malice, is the motive” for their actions. They should be honored for having “struck for our freedom.”¹⁶⁰ The first mate is awestruck, saying that he “forgot [Washington’s] blackness in the dignity of his manner, and the eloquence of his speech.” True understanding comes to the first mate that the ideals animating the taking of his ship are “the principles of 1776,” and that he earlier “could not bring myself to recognize their application to one whom I deemed my inferior.”¹⁶¹ The incredible feat of bravery aboard The Creole changed all that.

Once the first mate reaches land again, he vows never to set foot on another slave ship. Moreover, he has come to accept a growing sentiment that “many men feel , but dare not speak , that this whole slave-trading business is a disgrace and scandal to Old Virginia.”¹⁶² The author states that the shift in the political outlook of the white sailor makes him “as good an abolitionist as Garrison himself.”¹⁶³ This is surely an exaggeration. After all, there is no proof that the first mate has engaged in acts of solidarity with the oppressed of the sort taken by Listwell. Yet there is some progress and a hopeful horizon: the sailor has renounced active participation in slavery and displays an emergent sense of injustice through his willingness to express his altered ethical and policy positions and push back on pernicious stereotypes.

What Douglass presents is admittedly an incrementalist road map of legal change, and one for a world that has not been wracked by armed conflict. Even so, it offers an admirable model for confronting everyday injustice, even pervasive ones, when revolutionary conditions do not obtain.

B. From Literary Exegesis to Democratic Action

Douglass’s decision to commit The Heroic Slave to text means that, unlike oral stories of comfort and resistance, this particular tale of black heroism will not stay a hidden source of inspiration. Rather, the novel form ensures the story will spread more widely among white people and enslaved people alike, just as Walker’s Appeal once created a sensation in slaveholding communities. Although not rendered nearly as systematically as his speeches or essays, The Heroic Slave is of a piece with Douglass’s mature views on the role of law in perpetuating injustice as well as its potential for remedying it. For Douglass, formal equality entailed both fair treatment and real political power—the two things denied not only enslaved people but also many free black people. “All the negro asked was equality before the law,” he repeatedly insisted.¹⁶⁴

Formal equality was the difference between being “regarded only as the means of putting money in the white man’s pocket, like a bale of cotton” and being “treated as a man.”¹⁶⁵ And at that historical moment, it was no small thing to ask for formal equality; receiving it would be a truly revolutionary change. That is because in lieu of civic and social equality, proposals to repatriate freed slaves proliferated, popular among not just opponents of abolition but also many friends of emancipation.¹⁶⁶ Whether recognition of equal worth would still be sufficient after Reconstruction, violent reactions that erase the political and material gains for freedmen, and decades of Jim Crow would be another question. Douglass himself acknowledged that “it is enough to affirm the equal manhood of the negro race” but “[f]or the present.”¹⁶⁷

For the time being, Douglass offered his own rejoinder to Stowe’s pessimistic literary message that the price of peace should be black selfgovernance elsewhere:¹⁶⁸ “not one in ten of the white citizens of the United States ever read the Constitution” and “are not aware that the word slave is not in it.” In other words, an erroneous understanding of constitutional law has been deployed to promote a belief in black servility.

More broadly, to Douglass, the language and beliefs associated with democratic constitutionalism amounted to practical power. This is why the language of civic republicanism—which he called a “staple of your national poetry and eloquence”¹⁶⁹—assumed so prominent a place in Douglass’s literary and explicitly political works. It may be one of the master’s tools, but its resonance, even in a society with uneven literacy, made it a potent implement for deconstructing injustice, brick by brick. A practical egalitarian should use what was available and had been demonstrated to work, rather than waste time fantasizing about a different society in some alternative timeline.

Though some have criticized the nationalistic and masculine themes in The Heroic Slave ,¹⁷⁰ claims as to the existence of one people bound by a shared political destiny had more cultural power than merely abstract, universalist arguments (though of course Douglass deployed natural law arguments as well). Despite Douglass’s own vocal support for women’s suffrage, he tells a straightforward story here about a single freedom struggle rather than a broader egalitarian coalition involving race and sex; there are few women in the tale (none are portrayed as active abolitionists).

That writing choice may have been a strategic nod to the fact that he was mostly seeking to reach male readers—a shrewd, though short-term, calculation of who possessed the most power to change the world in that moment. In the same vein, appeals to “pride and patriotism” might represent the best shot at causing the passively unjust to experience a change of heart, as well as rousing black people to stay rather than relocate to a new land and leave dwindling numbers to fight injustice.¹⁷¹

Two things would ultimately bring an end to fantasies about reconciliation between white Americans through polite expulsion of formerly enslaved people: secession by the slaveholding states, followed by the Civil War sacrifice of black people who proved their civic virtue by fighting to preserve the Union. Beyond confirming Douglass’s choice to emphasize democratic capacity over time, these events also led to the widespread realization of just how expensive—and therefore unrealistic— resettlement of four million people would be.

Douglass was of two minds about whether the nation’s original constitution clearly endorsed slavery. By the 1850s he had made a clean break from the Garrisonian belief system, which treated the legal order as founded upon “a covenant with death.” Douglass did so in order to create more room within the political tradition to confront pervasive injustice without the need for formal constitutional amendment—something nearly impossible to accomplish.¹⁷² That he did so represented a remarkable commitment not only to native republican and rule of law discourses, but also to the idea that despite the yawning gaps of life experiences between oppressors and oppressed, members of the polity had no choice but to “reason together” if the democratic experiment is to continue.¹⁷³ Indeed, so committed to the possibility of political transformation was Douglass that even when his post-Civil War agitation for the black franchise split the pro-equality coalition and Thaddeus Stevens opposed Douglass as a convention delegate in the summer of 1866, he still got himself nominated and elected. Not to be denied his right to participate, he then resisted Republican pleas not to attend the gathering in Philadelphia.¹⁷⁴

Douglass’s political persistence and fervent belief in the rule of law, despite his own democratic heartbreak, charts a path forward for all of us who hope to reason from injustice to justice. His example also illustrates what contemporary pragmatists extol as the “tough-mindedness” necessary to bring the law in line with moral sentiments.¹⁷⁵ And outside of his fictional writings, Douglass promoted structural changes to the U.S. Constitution and economic opportunities for freedmen by reworking popular notions of “fair play.”¹⁷⁶

And yet we must be wary of those who simply insist that more law— or even better law—is the answer to demonstrated callousness. As Shklar reminds, “Far from reducing our cruelties, rules simply redirect and formalize our ferocity.”¹⁷⁷ Likewise, merely teaching others to practice law more adeptly, and to regard the ways of lawyers and judges as uniquely virtuous, may simply be a more systematic way of reproducing injustice.¹⁷⁸

VI. Conclusion

Reasoning from injustice offers another way of understanding the challenges to political community. Unlike leading theories of law and justice, it treats injustice as having a social life, with belief systems, practices, and practitioners—both active and passive—who are invested in maintaining patterns of corruption and iniquity. Such an approach also better attends to the feelings of demoralization in an aging legal order as well as how generations of injustice can lead to further destabilization, including political violence. Following this path can lead not only to the building of a theory of injustice to complement every theory of justice, but also to a more effective plan for inculcating civic virtues that can arrest political decay from the corrosive effects of pervasive injustice.

By studying key texts about the subject of justice, we can begin to discern, albeit incompletely, how and why injustice persists. In Job , we learn that injustice needs social cooperation to sustain it and that unanswered complaints about injustice can threaten the legitimacy of a legal order. By contrast, just institutions disrupt some of the social patterns that foster inequality. In Uncle Tom’s Cabin , we are confronted with institutions that themselves have become corrupted by a dehumanizing practice. Legal doctrines and religious traditions have been reshaped to naturalize and protect the political economy of slavery. Social support for injustice deepens and diversifies. When room for conventional political solutions narrows, people moved by pleas for justice turn increasingly to desperate measures, from moral suasion to rendering illegal aid, from suicide to political violence.¹⁷⁹ Each is a response to existing injustice, but assumes a different relationship to what is left behind.

The Heroic Slave , a bracing retelling of a real slave uprising, calls on us to consider how a familiar context can obscure important traits of common humanity, whereas a sudden shift in milieu can prompt a radical reconsideration of prevailing assumptions about fellow citizens, their capacities, and their dreams. It also pricks each member of society to reflect on the question of how far one is willing to go to end the unjustified suffering of others. The story tees up tensions in beliefs and strategies but cannot resolve them for us.

Of course, evaluating literature for the purpose of articulating a theory of injustice has its limits. Even when characters and plot lines are based on real events, as in The Heroic Slave , we may be manipulated by emotional reactions based on an author’s whims. Even texts that appear to be motivated by an emancipatory aim may be subtly shaped by a desire to preserve power or limit one’s perspective. Literary treatments of injustice can stimulate our political imagination, but as Uncle Tom’s Cabin suggests, they can also constrain one’s sense of what is possible. Even Douglass’s tale endorses one slice of the tradition without an investigation of whether a more comprehensive restructuring of society might be desirable. There may be good reasons to do so: after all, revolutionary violence can degenerate into cycles of retribution that wash away lasting peace, even when it is routinized through new institutions. Yet stopping short of more complete solutions can unwittingly leave an erroneous impression that freedom is a single act of emancipation rather than the ongoing creation of just institutions and practices.

Finally, certain literary texts may be too much of a product of their own time, unable to speak to future conditions that lie beyond an author’s own ability to foresee. The writings and speeches of Frederick Douglass reveal that under certain conditions, such as near-total exclusion and degradation of a group of people, the search for formal equality can be revolutionary. Under a very different set of conditions, such as late democracy or economic stagnation, formal equality may seem like an insulting drop in the bucket.

This is just a beginning, and there is much work of a theoretical and practical nature to be done.¹⁸⁰ Reasoning from injustice can be distilled into a civic pedagogy, one that stimulates fellow citizens to ask crucial questions about the structures that facilitate ongoing forms of injustice. For at the end of the day, awakening others to human suffering and the urgent pursuit of democratic justice is a political project.