Epic Justice

Ordinary Justice

Courts are in the business of "ordinary justice" against particular persons named as defendants for legal wrongs arising out of particular transactions, in the "recent past" as that is defined by law.

In practice, in a state like Colorado, this means that all but a dozen or two cases a year (involving narrow exceptions to the rule that typically have three or fewer parties) involve events that have taken place within the last twenty years involving parties who are currently alive, or have died within the last few years.

A case with a dozen or more parties, or a criminal case with more than a dozen defendants and victims combined, would ordinary be considered exceptionally complex.

But, many of these cases with exceptionally large numbers of parties still fit well within the "ordinary justice" paradigm.  For example, a traffic accident injuring everyone on the same bus or train or plane or ferry, or the mass shooting at an Aurora Theater by a single gunman, while involving many people, involves adjudication of rights from events in the recent past, under the laws that existed at the time, involving one or a small number of particular transactions, with a well defined discrete pool of people involved.

Intermediate Cases

Certain kinds of cases such as mechanic's lien disputes, bankruptcies, probate cases and receivership cases, all of which typically involve large numbers of claimants whose interest in a single asset or pool of assets is adjudicated at once to maintain distributive justice, routinely impact larger numbers of individuals in a pro-forma way.  But, all of these cases involve relatively recent events that trigger the need to allocate a pool of assets: a single construction project gone bad, someone's death, or the insolvency of a single or small related group of debtors and often individual sub-disputes can be handled separately in what amount to separate sub-cases (called "adversary proceedings" in bankruptcy, and often entirely separate lawsuits in a receivership).

At the extreme edge of "ordinary justice" is class action litigation, asserting either private rights or civil rights.  Like ordinary lawsuits, these suits typically involve wrongdoing by a modest number of defendants, in the recent past, under the laws that existed at the time.  But, the number of people harmed is generally much larger, is often indeterminate, and the people harmed in class action cases (as in criminal cases and attorney-general or private attorney-general cases) are necessarily directly involved in supervising the litigation.

Ordinary justice isn't limited to private individuals.  It can involve governmental entities, large corporations, even foreign countries.  But, it deals with groups of people organized into pre-existing organizations, or around their dealings with one person or a small number of persons who are organized after the fact by a court into an organized class (in bankruptcy, this organization even involves the appointment of a committee to speak on behalf of the class and the appointment of a trustee to defend their interests).

Beyond the class action lawsuit, perhaps the closest that ordinary justice and epic justice come to intersecting is in a war crimes tribunal, like the ones trying war criminals from genocidal campaigns in Bosnia and in Rwanda respectively, and the ones held at the end of World War II.  War crimes tribunals resemble forums for delivering epic justice, but differ because the epic wrongs were so comparatively recent that it is viable to punish individuals who were culpably involved in them.

Even war crimes tribunals, however, are quasi-criminal and do not offer compensation and reparation to those who were harmed, often they do not even provide meaningful apologies.  Truth and justice commissions, serve a similar purpose to war crimes tribunals, but trade quasi-criminal punishment for apologies and full disclosure of what happened from the perspective of the people who committed the wrongs.

Epic Justice

In contrast, courts don't generally handle cases of "epic justice", which are remedies for "epic wrongs".

Epic Wrongs Defined

"Epic wrongs" are instances when a large, often indeterminate group of people who were in hindsight clearly wronged in a large scale systemic manner, which may have been legal under the laws in place at the time.

Even if the wrong was illegal at the time, any right to a remedy under ordinary civil and criminal statutes was barred long ago by any reasonable reading of the applicable statutes of limitation or other constraints on the timing of the lawsuits.  Often, even if the conduct was theoretically illegal at the time, it would have been futile, impossible or impracticable to seek relief through the courts at the time.

Often, epic wrongs were inflicted on members of that class who are now all or mostly deceased, although members of the class may have left behind descendants who continue to suffer indirect injury from the wrongs committed against their ancestors.

Often, the governmental regime that engaged in the wrong doing no longer exists has been replaced with a new regime not in continuity with the regime that committed the wrong.  Often the individuals who were most culpably involved in the wrong doing are dead and many of the organizations involved no longer exist.  Sometimes a proportionately small number of junior participants in the wrongdoing are still living and some of the organizations involved are now in existence but have disavowed the policies that led to the wrongdoing.  Sometimes, all individuals and organizations involved are no more.

But, advocates for it argue that the epic wrongs for which "epic justice" is sought were so enormous, and so clearly culpable under modern moral and legal standards, and have given rise to harm so great that it has had multi-generational impacts on the descendants of those who experienced it, so some remedy ought to be devised today from society as a whole, or from that part of society that benefited most from, or is most meaningfully identified with, those epic wrongs.

Examples of Epic Wrongs

The examples below illustrate some of the alleged epic wrong which people have sought to remedy with epic justice of some kind.

* The various wrongs committed against Native Americans that ultimately decimated their numbers, divested them of their lands, violated their sovereign and treaty rights, and deprived them of their culture.

* Slavery, the absence of reparations ("40 acres and a mule") paid to freed slaves, and the de jure racist legal system for freed slaves that persisted for a century from Reconstruction through the Civil Rights movement.  Some (although not nearly so many) would call the Emancipation proclamation, which ended slavery without providing compensation to slave owners as England and many other regimes did, an epic wrong as well.

* The Armenian Genocide.

* The Holocaust committed by the Nazi Regime during World War II.

* Japanese internment in the United States during World War II.

* Japanese rapes and war crimes directed at Chinese and Korean subjects in the early 20th century.

* Land reform movements in India and Zimbabwe seeking to undue unfair advantages of a privileged class that owned almost all economically valuable land which they obtained unfairly during a previous unfair regime and have maintained that advantage with their property rights.

* Apartheid in South Africa.

* Cultural Revolutions in China and Cambodia.

* Efforts to redress the loss of political power and land that Palestinians experienced in the time leading up to the formation of the Israeli nation, upon the formation of Israel, and during the course of the Israeli regime once it was established.  This example is notable because the formation of modern Israel was itself largely motivated as an effort to secure epic justice for Jews who were collectively harmed in the Holocaust.  More generally, the narrative of the Hebrew Bible is largely a narrative framed in terms of epic justice, sometimes punishing them and sometimes rewarding them, for the Jewish people.

The Limits and Politics of Epic Justice

Even "Epic Justice" has limits.

Limitations of Time

When Britain and the U.S. advocated for the formation of the state of Israel, this was conceptualized as a remedy for the Nazi Holocaust, not for the pogroms that Jews endured for centuries in Europe, or for the exile of Jews from Britain in the early modern period, let alone as some sort of atonement for Rome's destruction of the Jewish temple in 70 CE that led to the end of any semblance of a Jewish political regime and the Jewish diaspora.

No one is advocating for justice for the Jomon people of Japan who lost their land, their language and much of their culture to the advances of the rice farming, horse riding Yaoyi soldiers two thousand years ago.

Koreans do not ache for justice from the subjugation to the Mongol Empire that the suffered until the Mongols were forced out five hundred years ago.

The British do not seek relief for the indignities that their loyalists experienced during the Revolutionary War.

No one seeks to hold the government of, or the people of, Mexico, accountable for the human sacrifices committed by the Aztecs, nor do the modern Puebloans seek justice for wrong committed in the pre-Columbian era.

The Italians feel no guilt for the Roman Empire's extermination of the Etruscans roughly two thousand years ago, or the Roman Empire's suppression of pagan religious practitioners sixteen hundred or so years ago.

Epic wrongs are vivid only if the culmination of them persisted into the last couple hundred years or so.  Older wrongs may be recalled, but generally only if those wrongs persisted into the last couple of hundred years.

Limits of Identity

Some of the limits on the time horizons of epic justice are not simply matters of the passage of some fixed amount of time.  There must be people who feel a sense of identity with those who were wronged who survived the wrong to make claims of entitlement to epic justice viable.

The Native Hawaiian Trust which holds in trust the wealth of the Hawaiian king who was deposed in the events leading up to the admission of Hawaii into the United States as a state is accepted, despite a general strong distrust of racially discriminatory policies (which its agenda of benefiting descendants of Native Hawaiians clearly is), because it is acknowledged as a form of Epic Justice.

The descent need not be a biological one.  The Union movement seeks epic justice for the wrongs done to their forebears in the Union movement, even in instances when many current members of the union movement arrived in the United States long after those injustices took place.

There is no real movement for redress for wrongs done to pagans in Europe, in part, because there are almost no pagans in Europe who can trace their beliefs continuously back to the pagans of pre-Christian times.  Outside the Mari people and the Kalish people at the fringes of West Eurasia, there are virtually no pagans in Europe who are not relatively recent converts.

In contrast, ancient wrongs to Galileo remain current in demands for epic justice, as mild as Galileo's own punishments were at the hands of the Roman Catholic Church, because scientists the world over identify with his plight five centuries ago and continue to fear a war on science even today.

The Politics of Epic Justice

There is a clear partisan divide on the issue of epic justice, but it isn't quite as simple as conservatives being for it, and liberals being against it.

Conservative white Evangelicals in the South, for example, have spent the last half century of resistance to the Civil Rights movement cultivating the Confederate flag and Confederate symbolism as a form of epic justice for what they see as the wrongs perpetrated on their ancestors in the Civil War by the Yankees, a sentiment that has been a strong one for their demographic since Reconstruction, even though a century passed before Confederate symbolism was used to capture it.

Still, for the most part, these days, liberals are advocates for epic justice, while conservatives see this attempts to stretch the bounds of ordinary justice as a bridge too far.

Yet, Christianity's success in its formative era, when it was an openly socialistic and leftist movement, had as a central doctrine "forgiveness".  This concept has lost political valiance now, but consider the time and place where this religion emerged.  The society of the Levant was a cousin marrying, clan oriented culture of honor in which ancient grievances and feuds between clans persisted for centuries.  American soldiers coming back from Iraq have remarked on the extent to which this is still the case in much of the Middle East to an almost absurd degree.

In that civilization, a religion with a core value of forgiveness was an effort at wholesale reform of a culture rooted in vengeance which was dysfunctional in the modernizing Roman world, and transformed it into a culture more capable of functioning in an urban environment where getting past wrongs from the past was a necessary precondition to moving forward as a society.