Martín Jay 
Must Justice Be Blind? 
The Challenge of Images to the Law 
Allegorical images of Jus t ice , historians of iconography tell us,1 did not 
a lways cover the eyes of the goddess , Just i t ia . In its earliest R o m a n incarna-
tions, p r e s e r v e d on the coins of Tiber ius ' reign, the w o m a n with the sword in 
one h a n d , r ep re sen t ing the power of the state, and the scales in the other, 
de r ived f r o m the we igh ing of souls in the Egyptian Book of the Dead, 2 was 
dep ic t ed as c lear-s ightedly cons ider ing the meri ts of the cases before her (fig. 
1). Med ieva l images of just ice based on figures of Christ , St. Michael, or secu-
Fig. 1: Roman coins 
dedicated to Justice 
and Impartiality. 
Justitia 's sword is not 
yet in place in these 
images, which show 
r b , 'v. - her with a staff > 'V) i ) \ 9 * instead. 
| ¡k ' ' ; ff í>\ (1) Dupondius of 
r : i J J y r 0 I Tiberius (22-23); 
?Ml t >} / (2) Dupondius of L ç ^ V Vespasian (77-78); 
(3) Aureus of Marcus 
Aurelius (168) 
1 O. E. von Möller, »Die Augenbinde der Justitia,« Zeitschrift für christliche Kunst, 18 
(1905), pp. 107-122, 141-152; Otto R. Kissel, Die Justitia: Reflexionen über ein Symbol und 
seine Darstellung in der bildenden Kunst, Beck, Munich 1984; Dennis E. Curtis andjudith 
Resnik, »Images of Justice,« Yale Law Journal, 1727 (1987); Christian-Nils Robert, La 
justice, vertu, courtisane et bourreau, Georg, Geneva 1993; Robert Jacob, Images de la 
justice: Essai sur l'iconographie judiciaire du Moyen Age à l'âge classique, Léopard d'or, 
Paris 1994. 
- Herman Bianchi, »The Scales of Justice as Represented in Engravings, Emblems, 
Reliefs and Sculptures in Early Modem Europe,« in G. Lamoine (Ed.), Images et 
representation de la justice du XVie au XIXe siècle, University of Toulouse-Le Mirail, Tou-
louse, 13, p. 8. 
Filozofski vestnik, XVII (2/1996), pp. 65-81. 
Martin Jay 
lar rulers likewise p rov ided them with the abili ty to m a k e their j u d g m e n t s on 
the basis of visual evidence {fig. 2). 
Fig. 2: The eruption of Justice in imaginary causes. T h e trial of Satan and 
the queen Ratio. The book of the king Modus and of the queen Ratio. 
But suddenly at the end of the 15th cen tury , a b l indfo ld b e g a n to be 
placed over the goddess 's eyes, p r o d u c i n g wha t has r ight ly b e e n called »the 
most enigmatic of the at tr ibutes of Jus t ice .« 3 Pe rhaps the earl iest image show-
ing the change is a 1494 wood engrav ing of a Fool cove r ing the eyes of Ju s -
tice, il lustrating Sebastian Brant 's Narrenschiff (Ship of Fools], which was rap-
idly r ep roduced in translat ions t h roughou t E u r o p e (fig. 3). Initially, as this 
engraving suggests, the b l indfold implies that Jus t i ce has b e e n r o b b e d of he r 
ability to get things straight, unable to wield he r sword effect ively or see wha t 
is ba lanced on her scales. O t h e r med ieva l and Rena i s sance al legories of oc-
3 Robert, La Justice, p. 13. 
66 
Must Justice Be Blind? The Challenge of Images to the Law 
j j j p e e Uti$am on pfeffiopans 
c?H>igcwcni* % * g\i? tiAfli 
Fig. 3: The fool ties the eyes of Justice. S. Brant, La nef desfolzdu monde; 
French transl., Lyon 1497. 
67 
Martin Jay 
e luded vision, such as those of Dea th , 
A m b i t i o n , C u p i d i t y , I g n o r a n c e o r 
Anger , were , in fact, u n i f o r m l y nega-
tive. T h e f igure of the n u d e child Cu-
pid , as Erwin Panofsky p o i n t e d out 
m a n y years ago, was dep ic t ed b l ind-
f o l d e d n o t m e r e l y b e c a u s e l o v e 
c louds j u d g m e n t , b u t also b e c a u s e 
»he was on t h e w r o n g s ide of t h e 
m o r a l wor ld .« 4 
By 1530, howeve r , this satirical 
i m p l i c a t i o n s e e m s to h a v e lost its 
p o w e r and the b l indfo ld was t rans-
f o r m e d ins t ead into a pos i t ive em-
b l e m of impar t ia l i ty and equal i ty be-
fore the law. P e r h a p s because of tra-
di t ions t r ansmi t t ed by P lu ta rch and 
D i o d o r e of Sicily f r o m anc ien t Egyp t 
tha t h a d dep ic t ed j udges as b l ind or 
h a n d l e s s , t h e b l i n d f o l d , l i ke t h e 
scales, came to imply neutral i ty ra ther 
t han helplessness . A c c o r d i n g to the 
F r e n c h scho la r R o b e r t J a c o b , 0 t he 
exp lana t ion m a y also have someth ing 
to do with the r eve r sa l of f o r t u n e s 
e x p e r i e n c e d b y the s y m b o l of t h e 
Synagogue in med ieva l Chr is t ian ico-
n o g r a p h y . T r a d i t i o n a l l y s h o w n as 
b l i nd fo lded - as well as wi th a bro-
Fig. 4: T h e Synagogue with the 
b roken lance and tied eyes. A 
sculpture of the Strasbourg Cathe-
dral, XHI th Century . 
4 Erwin Panofsky, Studies in Iconology: Humanist Themes in the Art of the Renaissance, Harper 
^ and Row, New York 1967, p. 109. 
5 Jacob, Images de la Justice, p. 234f. 
68 
Must Justice Be Blind? The Challenge of Images to the Law 
ken lance - to symbol ize he r resistance to the i l lumination of divine light, the 
Synagogue was nega t ive ly cont ras ted with the open-eyed Church as in the 
f a m o u s ear ly fou r t een th -cen tu ry statue on the south gate of Strasbourg Ca-
thedra l [fig. 4). 
W h a t h a d b e e n a sign of inferiori ty was, however , dramatical ly reversed 
w h e n the i c o n o p h o b i c R e f o r m a t i o n took seriously the H e b r e w interdict ion 
of images , the s e c o n d of the C o m m a n d m e n t s Moses b rough t down f rom 
M o u n t Sinai. N o w it was once again a virtue to resist wha t August ine had 
f amous ly called the »lust of the eyes.« A bl indfolded justice could thus avoid 
the seduc t ions of images and achieve the necessary dispassionate distance to 
r ende r verdicts impart ial ly , an a rgument advanced as early as the jurist Andrea 
Alciat i 's inf luent ia l c o m p e n d i u m of emblems, the Emblemata of 5 3 1 A c -
co rd ing to Chr is t ian-Ni ls Rober t , this impart ial i ty was requi red by the new 
u r b a n , secular , bourgeo i s cul ture of the early m o d e r n per iod, which left be-
h ind the pe r sona l i sm of pr ivate , feudal justice. It was not by chance that 
m a n y statues or foun ta ins of b l indfo lded Just i t ia were p laced in town squares 
in N o r t h e r n E u r o p e nex t to newly erected civic buildings, in which a nascent 
publ ic sphe re was in the process of emerg ing . ' Even in Catholic countries 
like France , w h e r e chu rches r ema ined f looded with images, secular edifices 
b e g a n to g row m o r e austere . 
T h e law was n o w to be presented entirely in language and justice dis-
p e n s e d only th rough language, necessitating discussion and persuasion, rather 
than appea r ing in images, which might overwhelm through dazzlement. Along 
with the iconoclastic puri f icat ion of cour t rooms of their artworks and lawbooks 
of t h e i r i l l u s t r a t i o n s , at l eas t in c o u n t r i e s i n f l u e n c e d by R e f o r m a t i o n 
i c o n o p h o b i a , went the f r e q u e n t rob ing of judges in sober black and white 
and the r e p l a c e m e n t of colorful seals by simple signatures on legal docu-
men t s . 8 N o longer would signs f rom heaven , like those in forming medieval 
ordeals , be suff icient ; n o w the words of m e n giving tes t imony about what 
they knew or h a d wi tnessed and then arguing about wha t rule might be vio-
lated would in mos t ins tances suffice. Al though it is t rue that law was to be 
increas ingly codi f ied and p rese rved in writ ten form, which has been inter-
p re t ed by some as ref lec t ing the m o d e r n privileging of sight because of its 
(l Andrea Alciati, Emblemata cum Commentariis, Garland, New York 1976. 
7 Robert, La Justice, p. 37f. 
8 Bernard J . Hibbitts, »Making Sense of Metaphors: Visuality, Aurality, and the 
Reconfiguration of American Legal Discourse,« Cardozo Law Review, 16, 2 (Decem-
ber, 1994), p. 255-56. He interprets these changes in terms of the growing ascendancy 
of an abstract, Cartesian visuality over the more concrete variant that reigned in the 
Middle Ages. 
69 
Martin Jay 
f requent use of visual metaphors , 9 the non -h i e rog lyph ic script of W e s t e r n 
languages mean t that visual revelat ions of the t ru th , i l lumina t ions of d iv ine 
will, were no longer re levant to the dec i s ion-making process . A l o n g with the 
invisible »hidden God« of the Jansenis ts , w h o increas ingly left the wor ld to its 
own devices, went a justice that appl ied genera l ru les and n o r m s r a the r t han 
looked for indications of divine d ispensat ion . As wi th the later p roh ib i t i on of 
laws referr ing to specific peop le with p r o p e r names , f amous ly b a n n e d in the 
Amer ican Const i tut ion as »bills of a t ta inder ,« so too the in te rd ic t ion on im-
ages was designed to thwart favori t ism or pe r sona l vengeance . W i t h the b l ind-
folding of Justi t ia, we are well a long the r o a d to the m o d e r n cult of the ab-
stract n o r m in juridical positivism. 
* 
If that road is paved with the p roh ib i t ion of concre te images , we h a v e to 
ask, however , whether or not bu i ld ing it h a d h i d d e n costs, wh ich we m a y still 
be paying today. In what follows, it is precise ly this ques t ion that will occupy 
us. O n e place to begin an answer wou ld be M a x H o r k h e i m e r and T h e o d o r 
Adorno ' s celebrated accusat ion in the Dialectic of Enlightenment tha t the m o d -
ern not ion of justice was still beho lden to a m y t h i c a s sumpt ion : the fetish of 
equivalence, the desire for perfec t commensurab i l i t y , the d o m i n a t i o n of the 
exchange pr inciple : 
For mythic and enlightened justice, guilt and atonement, happiness and un-
happiness were sides of an equation. Justice is subsumed in law...The blind-
fold over Justitia's eyes does not only mean there should be no assault on 
justice, but that justice does not originate in freedom.10 
Unexpec ted ly , in the light of the F r a n k f u r t Schoo l ' s o f t e n - r e m a r k e d 
embrace of the Jewish taboo on idola t rous images as a m a r k of res is tance to a 
p remature ly positive Utopian thought , H o r k h e i m e r and A d o r n o he re register 
a protest against the comple te b a n i s h m e n t of images . T h e p rese rva t ion of the 
ability to see they cryptically associate wi th f r e e d o m , a f r e e d o m that is threat-
ened when justice is r educed to law. W h a t , it has to be asked, is this f r e e d o m 
9 Ibid., p. 241. Hibbitts, however, acknowledges that in the early modern period, when 
most people were still illiterate, texts were meant mainly to be read aloud rather than 
silently (p. 256). 
Max Horkheimer and Theodor W. Adorno, Dialectic of Enlightenment, trans. John 
Cumming, Continuum, New York 1972, p. 16-17. 
70 
Must Justice Be Blind? The Challenge of Images to the Law 
which the b l i nd fo ld ing o f j u s t i t i a denies? H o w does the reduct ion of justice to 
law th rea t en its ve ry exis tence? 
O n e e x p l a n a t i o n is suggested by the famous a rgumen t deve loped by 
Lessing in his classical t reaty on aesthetics, Laocoon, in favor of the Greek 
regula t ion of images , an a r g u m e n t d rawing the critical at tention of W.J.T. 
Mitchel l in his inf luent ia l s tudy of images, texts and ideologies, Iconology.n 
A c c o r d i n g to Lessing, images should be kept under legal control because of 
the i r capaci ty to dep ic t mons te rs , those indecorous amalgams of the h u m a n 
and divine or the h u m a n a n d the bestial that are a scandal to the alleged 
o r d e r of na tu re . Mitchel l in te rpre ts Lessing's i conophob ia as symptomat ic of 
an anxie ty over p r o p e r sex roles and adul terous fantasies, but it might be just 
as p laus ible to see it as a fear of b o u n d a r y transgression in general , especially 
the b o u n d a r i e s that de f ine and circumscribe our bodies. Lessing's visual mon-
sters are an a f f ron t to the law because they depar t f r o m the assumption that 
the b o u n d a r i e d ca tegor ies we use to order the world are ones under which all 
its par t icu lars can be subsumed . The image of a hybr id ized creature, at once 
m a n and beast , d iv ine and h u m a n , male and female, confounds our rel iance 
on concep tua l s u b s u m p t i o n by refus ing to be an exempla r of a general rule. 
T h e f r e e d o m of which H o r k h e i m e r and Adorno speak is thus the ability 
of the par t icu lar , the un ique , the incommensurab le , the imprope r to escape 
f r o m the d o m i n a t i n g p o w e r of the exchange pr inciple that is manifes ted in 
universa l iz ing concep t s and in the reduc t ion of just ice to the law of equiva-
lents. T h e eye, by far the mos t discr iminat ing of the senses in its ability to 
regis ter m i n u t e d i f fe rences , mus t therefore be closed to p roduce this reduc-
tion. Jus t i t ia ' s vision is vei led so that she is able to mainta in the fiction that 
each j u d g m e n t b e f o r e he r can be unde r s tood as no th ing more than a »case« 
of s o m e t h i n g m o r e genera l , equivalent to other like cases, and subsumable 
u n d e r a gene ra l p r inc ip le tha t need only be applied wi thout regard for indi-
v idual un iqueness . T h a t genera l pr inciple is under s tood to hover somewhere 
above specific cases, reca l l ing the origin of the word justice in the Latin iubeo 
(to c o m m a n d ) . This is a vers ion of justice, as Vassilis Lambropou los has re-
cent ly po in t ed out, that can be under s tood as »the r ight command , the com-
m a n d that r ight ful ly deserves obedience . W h a t is right is what is decreed as 
straight, the line of the ruler and the regime direct ing f r o m above, the regal 
control , the re ign of the s u p r e m e direction.. . . 'Justice' comes f rom above, f rom 
the r ea lm of cer ta in ty .« 1 2 It is thus unlike the Greek not ion of Dike, which in 
11 W.J. T. Mitchell, Iconology: Image, Text, Ideology, University of Chicago, Chicago 1986, 
p. 10 8f. 
12 Vassilis Lambropoulos, »The Rule of Justice,« Thesis Eleven, 40 (1995), p. 18. 
71 
Martin Jay 
certain of its acceptat ions involved a dynamic , po l emica l ba l ance b e t w e e n 
contraries, an agonistic ethos based on p r o p o r t i o n and ana logy tha t cou ld no t 
be subsumed under a single nomos or l aw. 1 3 
It will doubtless have occur red to m a n y of you tha t ach iev ing this effect 
of regal control required no t mere ly a b l indfo ld , bu t also one p laced over the 
eyes of a specifically female deity. Gran t ed , as Chr is t ian-Ni ls R o b e r t has ar-
gued, 1 4 Jus t i t ia may be a somewhat a n d r o g y n o u s f igure , at least to the ex ten t 
that she wields a power fu l symbol of coerc ive au thor i ty , a sword fit for swift 
decapitat ions. Tradi t ional religious i c o n o g r a p h y had , in fact, p e r m i t t e d its 
use only inf requent ly to women , the mos t no t ab l e ins tance b e i n g J u d i t h , the 
slayer of Holofe rnes , in the Old Tes t amen t . T h e s tern and vague ly m e n a c i n g 
statues of Just i t ia in f ront of the Palaces of Jus t i ce in ear ly m o d e r n E u r o p e 
were certainly a far cry f r o m the ma te rna l images of the forgiving, m e d i a t i n g 
M a d o n n a that popula ted so m a n y med ieva l churches . N o r were they remi-
niscent of so m a n y sainted, suffering f ema le mar ty rs , whose assigned role was 
that of passive victim bear ing witness to their faith, even if one migh t de tec t a 
certain symmetry be tween the b l ind fo lded c r imina l c o n d e m n e d to die and 
the image of b l indfo lded execut ioner . 1 5 As a result , Jus t i t i a m a y p laus ib ly be 
in terpreted as a symbol of the very t e m p o r a l power , f i rmly in m a l e hands , 
that sought to displace the spiritual p o w e r that h a d acc rued to the cult of 
Mary in the late Midd le Ages. Neo-classical images with mar t ia l ove r tones 
were, after all, the source of this al legory, no t rel igious ones. 
And yet, it must be acknowledged tha t b l i nd fo lded Just i t ia , with all of 
her warlike attributes, was still p r imar i ly a f ema le f igure, as h a d b e e n the 
Egyptian Maa t (not only the Goddess of just ice , b u t also of t ru th and order) 
and the Greek Dike, who was the daugh te r of Zeus . Ma le images of d iv ine 
justice, such as that of G o d at the Last J u d g m e n t or St. Michae l , had no t b e e n 
preven ted f r o m exercising the power of vis ion. S o l o m o n famous ly could see 
how the two contest ing mothers felt abou t the d iv id ing of the chi ld they bo th 
claimed as their own. W h a t was the impl ica t ion of p r e v e n t i n g a f emale j u d g e 
f rom seeing? W h a t power might still be lurking b e n e a t h he r b l indfo ld , which , 
after all, does not pe rmanen t ly rob the Goddes s of he r sight? 
W h a t that power may be is suggested by the t radi t ional r e a d i n g of an-
other image f rom a slightly later e r a , J an V e r m e e r ' s » W o m a n Weigh ing Pearls« 
13 See the entry on Dike in F. E. Peters, Greek Philosophical Terms: A Historical Lexicon, 
New York 1967. For more sustained discussions, see Eric Havelock, The Greek Concept 
of Justice: From Its Shadow in Homer to its Substance in Plato, Cambridge, Mass., Harvard 
1978; Michael Gagarin, Early Greek Law, University of California, Berkeley 1986. 
14 Robert, La Justice, p. 65f. 
1 For a comparison, see Robert, La Justice, p. 92. 
72 
Must Justice Be Blind? The Challenge of Images to the Law 
of 1662-1663 (fig. 5). Dep ic ted in f ront of a picture of the Last J u d g m e n t , 
t hough t to be by Corne l i sz Enhe lbreech t , the woman with the delicate scales 
in he r h a n d s appea r s to be looking soberly and carefully at the individual 
pear ls in each tray, as if she were contempla t ive ly ponde r ing their part icular 
value. O r at least so the t radi t ional in terpre ta t ion of the canvas has assumed. 
W h e t h e r or not she is actually doing so is a question to which I will re turn 
short ly. But wha teve r the target of her gaze, there is no trace of j udgmen ta l 
ha rshness or v indic t iveness in her visage; indeed these seem to be traits that 
the blissfully serene V e r m e e r was simply incapable of depicting. As with the 
souls whose salvat ion is j u d g e d in the scene behind her , each pearl , that pre-
cious objec t m i r ro r i ng the wor ld a round it so often at the symbolic center of 
V e r m e e r ' s pa in t ings , seems wor th careful , del iberate scrutiny. The setting, 
m o r e o v e r , is a typical V e r m e e r interior, a private, in t imate , humble realm, 
far f r o m the publ ic space of the early m o d e r n statues of Just i t ia . 
T h e goddess ' s gende r as media ted by this compar i son with V e r m e e r ' s 
pa in t ing is r e levan t he re if we recall the contrast be tween male and female 
var iants of mora l r eason ing posi ted by feminists like Caro l Gilligan and Seyla 
B e n h a b i b against mora l theoris ts like Lawrence Koh lbe rg and J o h n Rawls. 1 6 
Fig. 5 : Jan V e r m e e r van 
Deft , Woman Weighing Pearls 
(1662-1663) 
16 Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development, Harvard, 
73 
Martin Jay 
Whereas male j u d g m e n t of ten t ends to b e abs t rac t ly universa l i s t , decon-
textualized, and formalist ic, its f emale coun te rpa r t , they tell us, is m o r e fre-
quently sensitive to individual detail, na r ra t ive un iqueness , and specific con-
texts. Ins tead of acknowledging only an imag ined »genera l ized other ,« it fo-
cuses instead on the actual »concrete o ther« b e f o r e it. T h e b l ind fo ld ing of 
Just i t ia is thus not a thwar t ing of the gaze per se, b u t of the specifical ly female 
gaze, or at least of those qualities that have b e e n associated with it in our 
cul ture . 1 7 It is thus ul t imately in the service of the d i s e m b o d i m e n t , d i sembed-
dedness, and decontextualizat ion that a legalistic just ice based on the reduct ive 
equivalence of the exchange pr inciple requi res . 
T h e comple te victory of what has recen t ly b e e n d u b b e d »a lgor i thmic 
just ice«1 8 because it involves fo l lowing b i n d i n g rules dec reed f r o m above is, 
to be sure, substantially modi f ied in a legal system such as the Anglo-Amer i -
can, in which concrete p receden t is o f t en as i m p o r t a n t as statute as the basis 
for j udgmen t . He re Kant ' s wel l -known cont ras t b e t w e e n ref lect ive and deter-
minan t judgments , the fo rmer appl ied to aes thet ic issues, the latter to cogni-
tive and mora l ones, might be invoked to jus t i fy the pa rad igma t i c va lue of 
pr ior specific examples over abstract rules that are universa l ly b ind ing . But 
there is still in the law of p receden t the p re suppos i t i on of at least analogical 
commensurabi l i ty f rom case to case. Even reflect ive j u d g m e n t s , af ter all, d raw 
on the p resumpt ion of a »sensus communis ,« a sha red sen t imen t that goes 
beyond the arbi t rary wh im of idiosyncrat ic taste. If no t by subsumpt ion , t hen 
by analogy, what is different is somehow compe l l ed to b e c o m e similar th rough 
resemblance . In addi t ion, the c o m m o n law of p r e c e d e n t can be said to col-
Cambridge, Mass. 1982; Seyla Benhabib, Situating the Self: Gender, Community and 
Postmodernism in Contemporary Theory, Routledge, New York 1992. 
17 Hibbitts cites certain feminists scholars who claim that the power of the gaze is inher-
ently male, whereas women's culture is more aural, and uses their arguments to but-
tress his claim that at least the American legal order until only recently was both 
ocularcentric and phallocentric (p. 267). I would qualify this generalization to the 
extent that a female gaze is not a contradiction in terms and it is precisely its occlu-
sion that may be complicitous with the type of visual regime that he shows domi-
nated American legal theory. That is, without essentializing the gender differences, 
there may be a link between realizing the abstracting potential in vision and patriar-
chal domination, which functions by repressing the more concretizing alternative 
latent in the »female gaze« denied Justitia. 
18 Alan Wolfe, »Algorithmic Justice,« in Drucilla Cornell, Michel Rosenfeld and David 
Gray Carlson (eds.), Deconstruction and the Possibility of Justice, Routledge, New York 
1992. He criticizes it for lacking an appreciation for »the rule-making, rule-applying, 
rule-interpreting capacities of human beings and an emphasis instead on the rule-
following character« (p. 366). 
74 
Must Justice Be Blind? The Challenge of Images to the Law 
lapse the t e m p o r a l d i f fe rence be tween past and present in its search for a 
rep l icab le s t anda rd of m e a s u r e m e n t . 
A l though images can, of course, themselves be the object of such judg-
ments , their initial, b ru t e impac t on the beho lde r ' s sense of sight may well be 
pr io r to any eva lua t ion , ref lect ive or de terminant , of their meaning . Even 
Kant ' s a pr ior i ca tegor ies do not , after all, include a necessary mechanism of 
cul tural , symbol ic c o m m e n s u r a t i o n . If H o r k h e i m e r and A d o r n o are right, 
m u t e visuali ty re ta ins t races of a m o d e of interact ion be tween humans and 
the wor ld which is p r io r to conceptua l subsumpt ion or the rule of c o m m o n 
sense, a m o d e they call mimet ic . This is not the place to launch a full-fledged 
analysis of the v e x e d concep t of mimesis in their work, an analysis I have 
tenta t ive ly a t t e m p t e d to m a k e e lsewhere . 1 9 Suffice it to say that they under-
s tood mimes is to invo lve a non -domina t i ng re la t ionship be tween subjects 
and objects in which the wor ld was not »subjected« to categorical determina-
tion or even in tersubjec t ive consensus. Mimesis mean t a m o r e passive affin-
ity b e t w e e n pe rce ive r and perce ived ra ther than a hierarchical control by 
one over the o ther . Aff ini ty , it should immedia te ly b e noted , does not mean 
ident i ty or equiva lence , as the mimesis be tween subject and object mainta ins 
a certain, i r reduc ib le d i f fe rence be tween them. Insofar as images and their 
referents , r ep resen ta t ions and originals, percept ions and objects, may be simi-
lar, bu t not ontological ly identical , they resist the full power of the exchange 
pr inc ip le . T h u s the image n e e d no t be of an imaginary monster , transgress-
ing na tu ra l bounda r i e s , to do its work of resistance; it need merely evoke the 
p r ima l power of mime t i c affinity, which acknowledges differences even as it 
seeks similarities, against the counter-power of conceptual subsumption, which 
seeks to suppress the r e m a i n d e r left b e h i n d in the act of subsuming. 
W h a t u l t imate ly dis t inguishes mimet ic f r o m conceptua l behavior , ac-
c o r d i n g to this a r g u m e n t , is the absence of violence in the former , the sym-
bol ic v io lence , that is, of categorical subsumpt ion , which f inds an echo in the 
potent ia l for literal force h e a r d in the phrase to »enforce the law.« Justi t ia, it 
should be r e m e m b e r e d , is never depic ted wi thout he r unshea thed sword. 2 0 
As J a c q u e s D e r r i d a has recent ly po in ted out in his medi ta t ion on Wal ter 
19 Martin Jay, »Mimesis und Mimetologie: Adorno und Lacoue-Labarthe,« in Gertrud 
Koch (ed.), Auge und AJfekt: Warhnehmung und Interaktion, Fischer, Frankfurt 1995. 
2 0 This raises the question of the status of images or representations of violence (or 
threatened violence, as in the case of the brandished sword). If they are understood 
as more mimetic than conceptual, does this mean that the violence in them is modi-
fied or even cancelled? Or can images participate in another kind of violence beyond 
that of subsumption? For a consideration of this theme, see Paul Crowther, »Violence 
in Painting,« in Critical Aesthetics and Postmodernism, Oxford University, Oxford 1993. 
75 
Martin Jay 
Benjamin ' s famous essay »Crit ique of Vio lence ,« the re m a y well be a mo-
men t of originary violence or b ru te force in the f o u n d a t i o n of even the mos t 
legitimate of laws: »Applicability, ' enforceabi l i ty , ' is no t an exter ior or sec-
ondary possibility that may or m a y not be a d d e d as a s u p p l e m e n t to law,« he 
writes. »It is the force essentially impl ied in the very concep t of justice as 
/aw.«21 »Here we can detect an echo of the a r g u m e n t f r o m H o r k h e i m e r a n d 
Adorno ' s Dialectic of Enlightenment that a just ice r e d u c e d to a law of equiva-
lence based on the subsumpt ion of ind iv idual cases u n d e r a genera l rule, the 
»algori thmic justice« p roduced by c o m m a n d s f r o m above , involves v io lence 
and restricts f r eedom. A different just ice tha t wou ld evade the b i n d i n g force 
of the a lgor i thm would follow instead the logic of the gra tu i tous gift, be s towed 
without an expecta t ion of reciproci ty, r a the r than that of the deb t pa id to 
even out a score, the pr imit ive act of v e n g e a n c e that Nie tzsche f amous ly saw 
at the root of m o d e r n not ions of exchange . 2 2 It wou ld be incalculable , impos-
sible to cap tu re in definit ions, i r reduc ib ly apore t ic , p e r h a p s even danger -
ously mad . Always ei ther a m e m o r y of wha t m a y have b e e n or a h o p e for a 
future that can perhaps be, but never actually is, it haunts the p ro jec t of fully 
realized justice in the present , a just ice based on b l ind ing one ' s eyes to the 
absolute alterity of each of its alleged cases, a just ice r e d u c e d to no th ing b u t 
the positive, formal , abstract law. As such, it is the basis not only of religious 
not ions of divine justice, but also of every de fense of a r evo lu t ionary »politi-
cal justice« that can claim the right to suspend the laws preva i l ing in a system 
that can itself be d e e m e d unjus t . 2 3 
But bo th dialectical and deconstruct ionist m o d e s of thinking, as we know, 
resist simple b inary opposit ions, and so too this over ly abs t ract d i c h o t o m y 
must itself be shaken. Allegedly non-violent , gra tui tous just ice based on re-
spect for absolute part iculari ty and the ben ign mimes is of na tu re canno t be 
placed entirely on the o ther side of a d ivide f r o m the putat ively sinister, coer-
cive force of law as c o m m a n d f rom above. In »Crit ique of Violence,« Benjamin 
had in fact j ux taposed a divine violence, which des t roys laws and t ransgresses 
21 Jacques Derrida, »Force of Law: The 'Mystical Foundation of Authority',« in Cornell 
et al. (eds.), Deconstruction and the Possibility of Justice, p. 5. 
2 2 Friedrich Nietzsche, The Birth of Tragedy and The Genealogy of Morals, trans. Francis 
Golfing, Doubleday, Garden City, N. Y. 1956. 
2 3 For a classic account of the dilemmas of political justice, see Otto Kirchheimer, Politi-
cal Justice: The Use of Legal Procedure for Political Ends, Princeton University, Princeton 
1961. For a more recent discussion, which considers Kirchheimer's position with rela-
tion to Carl Schmitt, see William E. Scheuerman, Between the Norm and the Exception: 
The Frankfurt School and the Rule of Law, MIT, Cambridge, Mass. 1994. 
76 
Must Justice Be Blind? The Challenge of Images to the Law 
bounda r i e s , to a my th ica l one that makes and conserves them. 2 4 Al though he 
crypt ical ly desc r ibed the f o r m e r as »lethal wi thout spilling blood,« 2 5 the trou-
b l ing impl ica t ion was tha t a just ice b e y o n d the law of fo rmal equivalence, the 
l i fe-aff i rming just ice of absolute qualitative singularity based on the logic of 
the gift, was n o t itself s o m e h o w b e y o n d coercion. For without any rules or 
cri ter ia at all, wha t was to p r even t a soi-disant divine just ice f rom descending 
into n o t h i n g m o r e t han the pr inciple »might makes right.« As Der r ida him-
self uneas i ly conc ludes , »in one fo rm or another , the undec idab le is on each 
side, and is the v io lent condi t ion of knowledge or action.«2 6 
Similarly, H o r k h e i m e r and A d o r n o were never willing to pit mimetic 
aff ini ty against concep tua l ref lect ion as if they were s imple opposites, one 
inhe ren t ly super ior to the other , one the singular locus of f reedom, the other 
of m e r e repress ion . Discuss ing the res idue of mimet ic behavior that can be 
f o u n d in the work of art in his Aesthetic Theory, A d o r n o wrote, 
The desideratum of visuality seeks to preserve the mimetic moment of art. 
What this view does not realize is that mimesis only goes on living through 
its antithesis, which is rational control by art works over all that is heteroge-
neous to them. If this is ignored, visuality becomes a fetish.27 
In art, he a rgued , it was impor tan t to avoid the e i the r /o r of sensuality vs. 
spiri tuali ty, which s imply repea ts the al ienation characterist ic of mode rn life. 
Ins tead , the pa r adox i ca l mix tu re of the two must be preserved, for 
What lurks behind the false synthesis called aesthetic vision is a rigid polar-
ity between spirit and sensuality which is inadequate. At the center of the 
aesthetic of vision is the false, thing-like notion that in the aesthetic artifact 
tensions have been synthesized into a state of rest, whereas in fact those 
tensions are essential to the work.28 
2 4 Walter Benjamin, »Critique of Violence,« Reflections: Essays, Aphorisms, Autobiographi-
cal Writings, Peter Demetz (ed.), Harcourt, Brace, Jovanovich, New York 1978, p. 297. 
25 Ibid 
2 6 Derrida, »Force of Law,« p. 56. At the end of his piece, Derrida acknowledges the 
frightening potential in Benjamin's attraction to divine violence, an annihilating, ex-
piatory violence, to become a perverted justification for the Holocaust. For differing 
opinions of how successful Derrida himself has been in thwarting this potential, see 
Dominick LaCapra, »Violence, Justice, and the Force of Law,« Cardozo Law Review, 
11, 6-6 (1990), Drucilla Cornell, The Philosophy of the Limit, Routledge, New York 1992, 
chapter 6, and Gillian Rose, Judaism and Modernity: Philosophical Essays, Blackwell, 
Oxford 1993, chapter 7. 
2 7 Theodor W. Adorno, Aesthetic Theory, C. Lenhardt trans., Gretel Adorno and Rolf 
Tiedemann (eds.), RKP, London 1984, p. 141. 
28 Ibid., p. 143. 
77 
Martin Jay 
If we return to our poin t of depar tu re , the b l indfo ld ing of Just i t ia , we 
can now unde r s t and that it was pe rhaps no t ent i re ly wi thou t some reason that 
vision was denied even to a female gaze in the n a m e of impar t ia l i ty and the 
ban i shment of monsters . Like the o ther »fools« in med ieva l tales, w h o of ten 
speak a h igher truth, the fool who b l indfo lds the goddess on Sebast ian Brant ' s 
ship may have known what he was do ing af ter all. For like the false synthesis 
of the aesthetic artifact, a practice of j u d g m e n t ba sed solely on the p o w e r of 
an immedia te visual apprehens ion of i r r educ ib le s ingular i ty risks succumb-
ing to the illusory potent ial that always a c c o m p a n i e s sensual pe rcep t ion , how-
ever acute. 
There is also another powerfu l jus t i f ica t ion for the al legorical image of 
the bl indfold. Because her eyes are covered , Jus t i t i a mus t walk caut iously 
into the fu ture , not rushing head long to j u d g m e n t . 2 9 V e r m e e r ' s open -eyed , 
female weigher of pearls can be shown wi thou t a b l indfo ld because he r judg-
men t is allegorically l inked to that of the Last J u d g m e n t in the canvas de-
picted beh ind her. But a secular j u d g m e n t that is any th ing bu t the last, a 
justice of m e r e mortals, canno t p re tend to possess so clear-s ighted a sense of 
whose soul meri ts salvation and whose does not . It mus t acknowledge that 
imperfect general laws and the concre te j u d g m e n t s of those w h o app ly t h e m 
somehow always fall short of an absolute a n d final just ice, and yet that b o t h 
are necessary means in the endless struggle to realize tha t unrea l izab le goal. 
It must fu r the rmore accept the fact tha t even the mos t c o m p r e h e n s i v e 
not ion of just ice contains within it a plural ism of distinct logics that m a y some-
times be in confl ict .3 0 Procedura l not ions of just ice wi thin an es tabl ished or-
der, those that subordinate it to positive law, are likely to be in tens ion with 
compensa tory , distributive, restitutive and re t r ibut ive a l ternat ives that m a y 
well point b e y o n d that order . A justice tha t r e m e m b e r s and tries to redress 
the wrongs of the past and one that h o p e s to create a t ruly jus t society in the 
future can easily be at odds with fo rmal p r o c e d u r e s in the present , as any 
observer of the heated debate over af f i rmat ive act ion in the U n i t e d States can 
well attest. Ra ther than a single over -arching cr i ter ion, the re m a y be several 
that cannot be perfectly reconci led, bu t this does no t m e a n that it is be t te r to 
throw out general considerat ions a l together and j udge decisionist ical ly. 
Unexpectedly, this point is suggested in visual terms by the same V e r m e e r 
2 9 This metaphor of blindfolded Justice walking cautiously is taken from M. Petitjean, 
»Un homme de loi semurois: l'avocat P. Lemulier,« Annales de Bourgogne, LXII, 245, 
cited in Robert, La Justice, p. 130. 
3 0 In this issue, see Michel Rosenfeld, »Restitution, Retribution, Political Justice and the 
Rule of Law,« Constellations, II, 3 (January, 1996), pp. 309-332. 
78 
Must Justice Be Blind? The Challenge of Images to the Law 
pa in t ing discussed ear l ier as an example of a benign w o m a n ' s gaze at con-
crete par t iculars . For r ecen t scientific analysis of the p igments on the canvas 
has revea led that the scales do not, in fact, contain pearls, as has traditionally 
b e e n thought , b u t are e m p t y instead. 3 1 W h a t shines is apparent ly only the 
light ref lect ing off the trays. Ra ther than directed at individual cases, the wom-
an 's con templa t ive gaze, we n o w can apprecia te , falls on the apparatus itself, 
as if she were weigh ing its meri ts as an impart ial mechanism of fairness, al-
bei t one then used to j u d g e the worth of each pearl . 
A just ice, in o ther words , that tries to see only concrete , contingent , 
i n c o m m e n s u r a b l e par t icular i ty and judge without any abstract prescriptive 
cri teria wha t soever - such as that recent ly defended , for example , by Jean-
François Lyo ta rd in Just Gaming2 - may paradoxical ly be as bl ind is one that 
p r e t e n d s to be ent i rely a lgor i thmic. W h a t is needed , as A d o r n o points out in 
the case of aesthet ic j u d g m e n t , is a creative tension be tween the two, a justice 
that can t e m p e r the r igor of conceptua l subsumpt ion , or more precisely, sev-
eral such subsumpt ions , wi th a sensitivity to individual part iculari ty. T h e 
un re so lvab l e p a r a d o x of the re la t ionship be tween law and justice, as the 
Slovenian ph i lo sophe r J e l i ca Sumiè-Riha has recent ly argued, may, in fact, 
r equ i re a cer ta in measu re of b l indness . »We know,« she writes, 
that law as such is not and cannot be just. However, if we accept that and 
behave according to this knowledge, we will have lost not only justice, but 
also law. Law is namely conceived as an instance that appeals to justice which 
means that a law that does not refer to justice is simply not a law. It is there-
fore in some way necessary to blind ourselves to this knowledge. In Derrida's 
terms: even if justice cannot be reduced to rule-governed activity we must 
respect rules. We must respect them because in the very undecidability of 
justice on the one hand and the groundlessness of law on the other lies the 
danger that the right to do justice can be usurped by bad legislators.33 
Perhaps it is best , therefore , to imagine the Goddess Just i t ia nei ther as 
fully sighted no r as b l indfo lded , but ra ther as she was once visually depicted 
at the th re sho ld of the m o d e r n world, in a mid-s ixteenth century front ispiece 
to J . De D a m h o u d e r e ' s Praxis rerum civilium: Justit ia, that is, as a goddess with 
no t one face, bu t two. T h e first has eyes that are wide open, able to discern 
di f ference, alteri ty, and non- ident i ty , looking in the direct ion of the hand that 
3 1 Arthur J. Wheelock, Jr., and Ben Broos, Johannes Vermeer, Yale University, New Ha-
ven 1996, p. 141-142. 
^-Jean-François Lyotard andJean-Loup Thébaud, Just Gaming, trans. Wlad Godzich, 
University of Minnesota, Minneapolis 1985. 
3 3 Jelica Sumic-Riha, »Fictions of Justice,« Filozofski Vestnik, 2 (1994), p. 80. 
79 
Martin Jay 
Fig. 6:Justice with two faces, one veiled and the other with open eyes. 
Frontspiece of J . De Damhoudere, Praxis rerum civilium..., Anvers 1567. 
80 
Must Justice Be Blind? The Challenge of Images to the Law 
wields her sword, while the second, facing the other hand with the calculat-
ing scales of rule-governed impartiality, has eyes that are veiled (fig. 6). For 
only the image of a two-faced deity, a hybrid, monstrous creature which we 
can in fact see, an allegory that resists subsumption under a general concept, 
only such an image can do, as it were, justice to the negative, even perhaps 
aporetic, dialectic that entangles law and justice itself. 
81