Imagination: the root of justice

University of Chicago - the nexus of the law-and-economics and the competing law-and-literature movements
He who does not understand the empire of force, and know how not to respect it, can neither love nor be just. ~ Simone Weil

Modern economic theory has had a profound effect on the way lawyers and judges conceive of a just society. In Prophets of Maximization: How Chicago school economists reshaped American justice (Sept 7, 2023), The Economist recounts the 50-year impact of Richard Posner’s “Economic Analysis of Law” (Little, Brown & Co., 1973) and the wider law-and-economics movement, noting:

The “law-and-economics” movement made the courts more reasoned and rigorous. It also changed the verdicts judges handed out. Research has found that those exposed to its ideas are more opposed to regulators and less likely to enforce antitrust laws, and tend to impose prison terms more often and for longer.

That same year, to counter the law-and-economics movement, James Boyd White published The Legal Imagination (Univ. of Chicago Press, 1973). White’s contention then was direct. Imagination – not utility maximization – was the root of justice, and there was great danger in dehumanizing the law and the citizens it seeks to serve by rigorously applying formulaic, economic thinking, hence harsher prison terms. As White puts it in Living Speech (Princeton, 2006):

“If we cannot imagine the lives of others – the half of the world’s population who live on less than $2 a day, for example – we cannot be capable of justice towards them, for imagination is the root of justice. And if we cannot see others as they are, and understand our own role in systems of wealth and power, we certainly are incapable of love towards them too.”

White’s goal was to inspire – even demand that – judges listen to people, to individuals and their lives, to understand the story of our society and act out of a deep sense of human dignity and love. He realized then what we painfully experience now, that human beings are more than economic actors, and that social systems that reduce people to numbers are bound to fail.

Herein lies the motivation of our work in philanthropic and social systems which, like judicial systems, often treat people like numbers. We want to ask, how do you change the system that made you? How can you love and be just in a cultural and economic system that teaches citizens to be self-centered consumers, maximizing earnings potential? Or, in the case of philanthropy, how can successful institutional leaders pursue acts beyond the capitalist imagination?

You must begin by cultivating a new imagination.

Cultivating such imagination begins by getting mentally, physically, emotionally, and relationally outside of the systems that have formed us. By imagining a different future – one that operates in new ways – we can all act beyond the boundaries of the current system and strive to align with the values that we claim.