“Reality” as a Claim for Justice — by Beth Mertz

In these oddly jaded times within the social sciences, it is interesting how controversial a claim to be capturing “reality” can be.  Of course, this is not surprising.  One of the key jobs the social sciences can perform is to keep us from too easily accepting commonly accepted “truths” that are in fact false, or perhaps just very dubious or impossible to prove.  Even the very positivist field of forensic psychology at times sounds oddly postmodern in its denial of any fixed “truth” – we know a lot more about what can cause false identifications or memories than we know about accuracy, as if there are no accurate eyewitness identifications or memories of abuse.  Again, there is a good reason for some of this:  we now know that many people have been unjustly jailed, even sent to death row, based on false identifications and evidence.  At the same time, reading this literature, one sometimes feels a sense of vertigo, as if these hard-nosed empiricists have actually given up on there being any accurate memories or actual “reality” that happened at all – although of course, their own work depends on their own abilities to remember and code and identify some kind of empirical “reality” with accuracy – as does so much of the fabric of social life.

In the more qualitative areas of social science, as in my own home field of anthropology, this discomfort with identifying “truths” and fixed realities has reached high levels – again for very good reasons.  Too often the “realities” fixed by cross-cultural encounters have been based in the self-serving perceptions of Westerners engaged in colonial or post-colonial adventures designed to impose their norms (and profit-margins) on people with less power but much wisdom, so frequently ignored and lost in the transactions.  The realization that anthropology itself had been complicit in these impositions froze the field in its tracks in many ways, and plunged it into a sometimes-productive, sometimes-infuriating phase of epistemological questioning.  (I may be prejudiced, but I do think that this phase has left the field well-placed to help in the cross-cultural translation processes now becoming so ubiquitous in an era of concern with the “global.”)  Again I just note that while questioning is very important, if we generate only critique, we are unlikely to be able to contribute to activist attempts to improve the frequently very dismal situations being studied – and this ought to raise some ethical issues for us.

Moving then to law, that very applied arena of social studies, it is perhaps surprising to encounter yet more agnosticism about “reality” – and I can only repeat, once more for terrific reasons.  What other field has the awesome task of deciding the fate of accused human beings, of jailing them or even killing them?  In the hands of legal decision-makers can rest the fates of businesses and churches; of children, abused women, the wrongly accused, and the mentally ill.  When juries or judges find “facts,” on the way to making decisions, they are ringed around with procedures that limit the scope of their inquiries – in a sometimes successful, sometimes terribly wrongheaded effort to keep out factors that are deemed wrongly prejudicial or inflammatory, and so forth.  This means that the truth that emerges from legal decisions can never claim to be the “actual reality,” but only the “facts” as framed very particularly in this legal proceeding.

What, then, of claims to capture “reality” – as, for example, in the label “legal realism”?  How terribly old-fashioned, in these postmodern times, to think that we can ever succeed in that endeavor!  And yet, when the older generation of U.S. legal realists started their work, they had good reason to urge concern for “reality” on their colleagues.  (Although, for a thorough debunking of the idea that they saw themselves as the only or first to have this concern, I point you toward a very interesting forthcoming article by Brian Tamanaha, soon to appear in a trio of edited volumes on New Legal Realism set for publication in 2015.)  This figure of speech, “reality,”  encapsulated a demand that legal professionals pay more attention to what really happens when judges make decisions, and when law hits the ground, impacting actual lives.  It is an appeal for better information on which to base the decisions that comprise “justice” or “injustice” in the lives of those governed by law.  This imperative is in fact a quiet subtext for much of the work in the law-and-society tradition that grew out of legal realism:  that we let what we find “on the ground,” through our many methods, guide our learning about law – rather than our pet theories or our personal perspectives (based as they necessarily are in our privileged experiences as academics).

All of this came to my mind last week as I sat in a meditation group, which I attend at the recommendation of my doctors as I recover from an illness.  The group is ecumenical, although the leader is Buddhist, and this leader experienced serious abuse in younger years.  In this dark, wintry time of the year in Chicago, our teacher urged us to reflect on those in pain and unseen – whether children suffering from abuse, or youth living in fear of false arrest or murder .[1]  I found this combination very moving (and from a professional perspective quite refreshing:  so often the debate in legal and sociolegal circles seems unable to comprehend both of these kinds of suffering as worthy of concern – as if the fact of false accusations, for example, meant that no accusation of child abuse should be taken seriously.[2])  But in this quiet room, filled with people whose identities crossed lines of gender, race, age, religion, and other sorts of categories, it seemed entirely possible to hold multiple kinds of suffering as serious and important.

Then the leader added, “These injuries are real.  They are happening now.  They are real.”  In that statement was a powerful claim.  It was a claim that children who are raped, women who are beaten, African-American youth who are wrongly arrested and murdered, are experiencing real injustices.  These injustices could be relativized – after all, law and social science insist that we step back to assess the multiple perspectives that can be found on almost every topic.   We could say that we can never really capture reality, that memories are necessarily imprecise and perceptions necessarily subjective, situated, and partial.  But sometimes, this teacher was telling us, justice requires us to take a different step back and ask what is really going on.   We do this from our admittedly partial, human, and imperfect stance – but perhaps, aided by the best tools we can find in our generation for achieving a better understanding.  That understanding doesn’t need to be perfect to be “good enough” – especially if the alternative is that we remain agnostic and impassive in the face of injustice.

[1] This of course called to mind the current attention being given to police killings of unarmed African-American youths – something that social scientists have been documenting for many years now, by the way.  Why this knowledge has been so slow to penetrate public consciousness, or even some powerful parts of the legal profession in charge of conceptualizing criminal law – well, this is a new legal realist kind of question…..

[2] Or, to be perfectly symmetrical about it:  the terrible and moving stories of actual abuse should not mean we assume that all such stories are true (especially in the realm of criminal convictions, where the legal burden of proof puts a heavy thumb on the scale), and at the same time, the terrible and tragic instances of those falsely accused should not mean that we assume that any particular accusation of abuse is false.

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