Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms.

AuthorSpaulding, Norman W.
PositionBook review

REPRESENTING JUSTICE: INVENTION, CONTROVERSY, AND RIGHTS IN CITY-STATES AND DEMOCRATIC COURTROOMS. By Judith Resnik and Dennis Curtis. New Haven and London: Yale University Press. 2011. Pp. xvii, 668. $75.

  1. THE BLINDFOLDING OF JUSTICE AND JUDICIAL CORRUPTION

    Representing Justice is a book of encyclopedic proportions on the iconography of justice and the organization of space in which adjudication occurs. Professors Judith Resnik (1) and Dennis Curtis (2) have gathered a provocative array of images, ranging from the scales of the Babylonian god Shamash--"judge of heaven and earth"--on a 4,200-year-old seal (pp. 18-19 & fig. 23), and a 600-year-old painting of Saint Michael weighing the souls at the Last Judgment with sword and scales in hand (p. 23 fig. 25) to the tiny Cook County Courthouse in Grand Marais, Minnesota, 110 miles north of Duluth (p. 372 fig. 226), and the millennial opening of a spectacular new courthouse for the International Tribunal for the Law of the Sea in Hamburg, Germany (p. 266 fig. 176). A more richly conceived catalogue of the development of specialized courthouses from multipurpose buildings and the art that adorns adjudicative space is hard to imagine.

    Part history, part art history, part architectural theory, and part meditation on the relationship between adjudication and political legitimacy in the spirit of Jeremy Bentham, the book poses fundamental questions about the trajectory of liberal justice in the twenty-first century: is adjudication in public space essential to the rule of law in democratic societies? Can the resolution of civil and criminal disputes be privatized without compromising democratic values? Is justice primarily procedural, linked to courts and adjudication; primarily substantive, tied to substantive rights and the popularly accountable branches of government; or primarily normative, a set of ideals or theories against which the actions of any people and their government may be assessed? Most significantly, what is the relationship between justice, representations of justice, and the material forms the practice of justice takes?

    Representing Justice is preoccupied with these and other questions. Readers may be surprised to learn that Justicia--the classic image of a blindfolded woman holding scales and a sword adorning the entrance to countless modern courthouses--was not traditionally depicted with a blindfold, nor was she alone. The cardinal moral virtues--Justice, Prudence, Fortitude, and Temperance--appeared for centuries in public spaces as a quartet of female figures "grouped together so often that commentators sometimes referred to one as 'missing' when only three were presented" (p. 8). In representations of Justice, moreover, "[s]ight was the desired state, connected to insight, light, and the rays of God's sun" (p. 62; emphasis added). Impartiality or evenhandedness was already represented, after all, in "the balanced pans on Justice's scales" (p. 63). Indeed, in the "dominant pre-humanist tradition ... the blindfold signified a disability" (p. 63). "[C]lassical and biblical texts ... repeatedly cast light as representing truth and darkness as misguidedness" (p. 64). Thus, before the sixteenth century, Justicia was invariably depicted in public spaces where disputes were adjudicated with open eyes (p. 74).

    Among "the earliest images known to show a Justice with covered eyes" is The Fool Blindfolding Justice, a woodcut for a 1494 book written by Sebastian Brant, "a noted lawyer and law professor" from Alsace. (3) Justicia is shown seated, holding scales in her left hand and a sword in her right while a jester stands behind her and fastens a blindfold over her eyes (p. 68 fig. 51). The image, included in a chapter entitled "Quarreling and Going to Court," is plainly intended to be "derisive" (p. 67). Brant "repeatedly equate[s] blindness with sin, ignorance, and mistakes" in his book (p. 67). Other images from the period also use a blindfold to reveal concern with "judicial error" (p. 67) and "the ease with which ... judges could be deceived" (p. 69). In The Tribunal of Fools, for instance, an illustration in a 1508 volume on local law for the City of Bamberg, the presiding judge and his colleagues on the bench are depicted blindfolded and wearing jesters' caps (p. 67, 69 & fig. 52). The legend on a scroll "above their heads reads: 'Out of bad habit these blind fools spend their lives passing judgments contrary to what is right'" (p. 67). As late as the mid-seventeenth century, Resnik and Curtis contend, positive depictions of Justicia blindfolded remained "uncommon" (p. 75).

    Readers may be equally surprised to learn that the didactic attributes of adjudicative space (statues, inscriptions, murals, frescoes, etc.) were once directed not only at the public but at presiding judges. Courthouses and multipurpose buildings in which trials were held frequently included images intended to impress upon judges their subservience to the sovereign, the importance of placing fidelity to law over other duties and interests, and the consequences that could follow deviation from perfect integrity (Chapter Three). In the Medieval and Renaissance periods, Herodotus's account of the judgment of Cambyses--a king who ordered a judge flayed for accepting bribes--was frequently depicted in paintings "in town halls, on commemorative medals, and in tapestries" to "warn[] all judges about how to behave appropriately" (pp. 38-39). The flaying of the corrupt judge was often shown in gruesome detail, as in the Flemish artist Gerard David's The Justice (Judgment) of Cambyses, commissioned for the Town Hall of Bruges in the late fifteenth century (pp. 40-41 figs. 31-32). The judge is stripped naked and tied prostrate on a table as three men open long incisions on his arms and chest (p. 41 fig. 32).

    Images of handless judges also proliferated during the period. In the Geneva Town Hall, there is a particularly "startling" fresco dated 1604 and attributed to the painter Cesar Giglio, entitled Les Juges aux Mains Coupees (p. 44). Resnik and Curtis describe the painting as follows:

    The imagery starts fight above a door-height balustrade, reaches the ceiling, and fills the top third of the room's walls. The presiding judge is centered on one of the walls and seated on a high-backed bench. He is shown ... with open eyes, an upright scepter in one hand, and the other hand cut off'. On each side of that judge sit three others, also depicted handless, so that thirteen stumps of arms are visible. (p. 44) Numerous biblical references condemning bribery are inscribed on a scroll that unfolds "near a figure of Moses" (p. 44). Among them is a passage from Exodus 23:8, which "can be translated as 'Thou shalt not accept gifts, for a present blinds the prudent and distorts the words of the just'" (p. 44). Paintings of the Last Judgment common in town halls further "remind[ed] judges that they too would be judged" (p. 42). In Maastricht, for example:

    a 1499 Last Judgment showed local aldermen presiding at trial[] with a demon and an angel nearby. The inscriptions have the demon tempting them to accept bribes, while the angel warns: "You who are counselors .... Do not allow, for favor or hate, with bribes to hire, Else you go ... to hellish fire." (p. 42) Other common images included depictions of Solomon (pp. 56-57 & fig. 44), Brutus's decision to sentence his sons to death for plotting treason (pp. 57-58 & fig. 44), and Zaleucus's decision to blind himself in one eye in an attempt to meet both his duty as a father and as a lawgiver (pp. 57-58; p. 60, fig. 45). Zaleucus's story is of particular moment. After Zaleucus issued an edict "that anyone found to have committed adultery was to be blinded," his own son was found to be an adulterer (p. 58). Instead of blinding his son, Zaleucus "ordered his son to lose only one eye and gouged out one of his own as well" (p. 58). Through an "admirable balance of equity dividing himself between compassionate father and just lawgiver," Zaleucus was said to have "rendered to the law a due measure of retribution" (p. 58; internal quotation marks omitted).

    In contrast, modern adjudicative space is, Resnik and Curtis emphasize, almost entirely bereft of imagery directed at judges or addressing even the possibility of failure in the administration of justice. (4) We all "recognize a statuesque woman with scales and [a] sword as Justice[,] but [we] have not been schooled in Cambyses, Zaleucus, and Brutus or provided with comparable sagas about the harshness of law and the weight of imposing judgment" (p. 61). Whether we should read the earlier images as enjoining judges to take personal responsibility because no earthly power could adequately supervise and punish corruption (a confession of weakness by the state) or as communicating a promise that punishment would surely follow wrongdoing (an expression of robust supervisory power) is a question I take up below. But in light of Caperton v A.T. Massey Coal Co. (5) and other scandals involving bribery and the corruption of judicial election campaigns, Resnik and Curtis's lament that modern courthouses include no such imagery is well taken.

    In this Review, I concentrate on a relationship that the book seems both to recognize and to take for granted. If it is true that the organization and decoration of the space in which justice is done matters--if it is true that our understandings of justice are affected by the space in which it is administered--a working hypothesis of the relationship of the iconography of justice and the architecture of adjudicative space to the rule of law is necessary. I begin with what I take to be Resnik and Curtis's theory that the organization of adjudicative space fosters democratic engagement. I then turn to some complications their argument does not fully address, particularly the contested control of adjudication by elite professionals and the increasingly enclosed and...

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