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In Philadelphia (where I live) a new social-justice policy of the
city has evicted a noble organization, the Boy Scouts, from their
historic home. In 1928 the then newly inaugurated
organization constructed a large building for their own use which
they donated to the city in return for the right to rent it back
for an annual payment of $1. This building is honored around the
world as the birthplace of the organization, which has used it
continuously till the present time. According to the ordinary and
traditional conception of justice, the Scouts have a strict right
to occupy the building, since one of the basic principles of
ordinary justice is that "pacta sunt servanda;" "agreements must
be kept." However, it has been one of the rules of the
organization since its inception, a rule that to anyone with the
least knowledge of human nature is obviously justified, given the
nature and purpose of the Boy Scouts, that no one who is openly
homosexual can be a member. In 1993 the city passed a "social
justice" ordinance prohibiting the use of public funds to
support any organization that engages in "discriminatory
practices." In 2003 a local scout challenged the
organization's policy by announcing on television that he was
homosexual, and was expelled from membership. The city thereupon
demanded that the Boy Scouts either change their policy or pay the
market rent for the building, which would be about $200,000 per
year, far beyond their means. Consequently the Scouts have
been forced to leave their historic home. The requirements
of "social justice" here clearly contradict the demands of
ordinary justice.
Likewise in Philadelphia under the same law a sandwich shop owner
has been charged with discrimination for asking his patrons to
order their sandwiches in the English language. Joe Vento, a
locally famous vendor of cheese-steak sandwiches in an area
containing large numbers of immigrants put a small sign up which
said, "This is America. When ordering, please speak English." From
the perspective of ordinary justice such a sign is fully within
the proprietor's rights. It commits no crime or injustice and
inflicts no harm on anyone. It does not even refuse service
to those who order in a foreign language, but simply makes a
request. Both the purchase and the sale of sandwiches are entirely
voluntary. The request is not unreasonable, because this
particular sandwich is noted locally for having its own
traditional ordering vocabulary.[1] The sign might
even be considered patriotic. Immigrants know perfectly well
they live in a country where English is the common language and
they must expect to have to speak English to carry out many of the
ordinary tasks of life, such as shopping or traveling.
However, the sign offends against "social justice" because it
suggests a certain kind of inequality between those who speak
English and those who do not. The chairman of the
city's Commission on Human Relations complained to the Commission
that the sign was "discriminatory," and the Commission
summoned the vendor to appear before it to answer the
charge. The Commission has recently found in favor of Mr.
Vento by a vote of 2 to 1 in the wake of heavy publicity
supporting him, but the charge itself, together with the
fact that the outcome was long uncertain and that one of three
members of the Commission agreed with the charge, points to
the contradiction that exists between the demands of ordinary
justice and those of "social justice." Both cannot be satisfied at
the same time. Wherever it is applied, "social justice" trumps
ordinary justice. During 2006 the Equal Employment
Opportunity Commission, a U.S. federal agency, filed over 200
lawsuits against employers over rules requiring employees to speak
English. One of these employers was the Salvation Army, whose
language policy requiring English had been specifically upheld by
a federal judge in Boston in 2002.
In April 2008 the New Mexico Human Rights Commission ordered a
Christian photographer to pay $6,600 for declining to photograph a
commitment ceremony between two lesbians. Vanessa Willcock,
one of the two women in the union, filed a complaint against Elane
Photography, a small photography studio owned by Jon and Elaine
Huguenin, a husband-and-wife team who are devout evangelical
Christians. They refused to photograph the same-sex ceremony for
reasons of religious conscience. The Commission's brief (only two
paragraphs) order stated that Elane Photography was guilty of
discrimination because of sexual orientation. According to
our ordinary idea of justice, people in business, especially in
small business, should be free to accept or refuse business
with whomever they wished, just as customers are free to choose
the persons with whom they will do business; and this was a
recognized rule. But the social-justice principle of
non-discrimination trumps such freedom. The Huguenins were
defended by Jordan Lorence, an attorney with the Alliance Defense
Fund, who had argued that photography was a form of artistic
expression, and thus forcing the couple to photograph the wedding
was a form of compelled speech prohibited by the First
Amendment.
Mr. Lorence remarked: "It was a very short order [with] absolutely
no reference to the First Amendment defenses that we raised... I
find this a stunning disregard for the First Amendment issues in
this case... This is compelled speech; this is forcing a
photographer to advance a message with her artistic skills that
she would not do absent government coercion." The Alliance Defense
Fund will appeal the commission's order to the state trial court
in Albuquerque. The attorney compared the situation to
Canada where, he said, a number of prominent Catholic and
Evangelical clergy have been fined by Canada's human rights
tribunals for publicly defending traditional Christian teaching
concerning marriage. The Alliance Defense Fund undertook the case
because of the growing number of similar cases in which religious
freedom and the right of conscience are being eroded. He
continued, "There is a strong tendency among supporters of
nondiscrimination laws and hate crime laws to use them as weapons
to suppress dissent against same-sex marriage." The case
also has added a lot of stress at a time when Mr. and Mrs.
Huguenin are expecting their first child. "They are simply
trying to live their lives according to their Christian beliefs
and convictions." (Report in the Washington Times,
April 13,
2008.)
In January 2008 the City Commission of Gainesville, Florida,
passed a "gender identity" ordinance which affords any man the
right to use a female restroom if he perceives himself to be a
woman, and vice-versa. Specifically, the ordinance reads:
"'gender identity' means 'an inner sense of being a specific
gender, or the expression of a gender identity by verbal
statement, appearance, or mannerisms, or other gender-related
characteristics of an individual with or without regard to the
individual's designated sex at birth.'" The City's Legal and
Equal Opportunity staffs confirmed that an individual merely has
to articulate an inner sense of being of a particular sex to be
legally protected under this ordinance.[2] It has been
widely remarked that this definition includes registered sexual
offenders. The conception of "social justice" evidenced here
is in fairly obvious conflict with our ordinary conception of what
is right and wrong.
In Great Britain, consider the case of a widow who has no assets
from her former marriage save a house, and who rents the house out
to a tenant in order to live from the rent. The traditional and
ordinary idea of justice tells us that it would be an injustice
for the tenant to withhold the rent agreed, or to stay in the
house beyond the expiration of the tenancy, or in any way to
exclude the widow from her property. A first principle of
ordinary justice is that contracts are to be upheld. In 1977,
however, the British government introduced the Rent Act,
which imposed rent control and gave tenants security of tenure.
The arguments given for this legislation at the time concerned
"social justice": the unequal position of tenants vis-?-vis
landlords must be rectified, exploitation of the propertyless by
the propertied must be prevented, and so on. The widow is forced
to accept a rent below that agreed to and less than her living
costs; she loses the possession of her house, which the tenant,
younger than her, now has for life, and she is effectively ruined.
"Social justice" has demanded a result here that would be widely
condemned as an injustice to the
widow.
Likewise in Great Britain, the question of the right of
self-defence has led to two contrasting approaches. On the
traditional view of justice, as explained for example by Locke,
the right of self-defence entitles one to kill an intruder who
uses force.
"This makes it lawful for a man to
kill a thief, who has not in the least hurt him, nor declared any
design upon his life, any farther than, by the use of force, so to
get him in his power, as to take away his money, or what he
pleases, from him; because using force, where he has no
right, to get me into his power, let his pretence be what it will,
I have no reason to suppose, that he who would take away my
liberty, would not, when he had me in his power, take away
everything else.And therefore it is lawful for me to treat him as
one who has put himself into a state of war with me, i.e. kill him
if I can; for to that hazard does he justly expose himself,
whoever introduces a state of war, and is aggressor in it."
(Second Treatise, Ch.III.)
And
again:
"...force, or a declared design of force, upon
the person of another, where there is no common superior on earth
to appeal to for relief, is the state of war: and it is the want
of such an appeal gives a man the right of war even against an
aggressor, tho' he be in society and a fellow subject. Thus a
thief, whom I cannot harm, but by appeal to the law, for having
stolen all that I am worth, I may kill, when he sets on me to rob
me but of my horse or coat; because the law, which was made for my
preservation, where it cannot interpose to secure my life from
present force, which, if lost, is capable of no reparation,
permits me my own defence, and the right of war, a liberty to kill
the aggressor, because the aggressor allows not time to appeal to
our common judge, nor the decision of the law, for remedy in a
case where the mischief may be irreparable."
(ibid.)
But from the perspective of "social justice," the criminal should
also be considered a victim, namely of disadvantaged societal or
perhaps biological circumstances. This entails a very different
and much weaker view of the right of self-defence, which tends to
defend the rights of the criminal as ardently as those of his
victim, and construe strictly the penalties that can be levied
against him. The Court of Appeal has formulated the rule of
self-defence as follows:
"It is not, as we understand
it, the law that a person threatened must take to his heels and
run.., but what is necessary is that he should demonstrate by his
actions that he does not want to fight. He must demonstrate that
he is prepared to temporise and disengage and perhaps to make some
physical withdrawal. This is a necessary feature for the
justification of self-defence, whether the charge is a homicide
charge or something less
serious."[3]
The following cases illustrate the new and very diminished right
of self-defence in the United Kingdom. In 1973, a young man
running on a road at night was stopped by the police and found to
be carrying a length of steel, a cycle chain, and a metal clock
weight. He explained that a gang of youths had been after him. At
his hearing it was found that he had been threatened and had
previously notified the police. The justices agreed he had a valid
reason to carry the weapons. Indeed, 16 days later he was attacked
and beaten so badly he was hospitalised. But the prosecutor
appealed the ruling, and the appellate judges insisted that
carrying a weapon must be related to an imminent and immediate
threat. They sent the case back to the lower court with directions
to
convict.[4]
In 1978 a man named O'Shea feared he was about to be set upon by a
gang of youths. While defending himself he accidentally killed
one. The court rejected his plea of self-defence and sentenced him
to four years imprisonment. On appeal his sentence was
affirmed.[5]
In 1980 a man by the name of Shannon was attacked by a bully - a
heavily built man who had previous convictions for violence and
had threatened Shannon's life. Shannon fought back and witnesses
described the fight (evidently one-sided) as "pretty frightening."
Shannon testified he was held by the neck and was being dragged
down and "kneed." He lashed out with a pair of scissors and
inflicted a fatal blow. The jury heard a great deal of questioning
about how Shannon happened to be carrying scissors, an issue
irrelevant to the charge. In the event the jury found him guilty
of manslaughter. The Court of Appeal reversed the decision, not
because of the verdict, but because of a fault in the judge's
charge.[6]
In 1987, two men assaulted Eric Butler, a 56-year-old British
Petroleum executive, in a London subway car, trying to strangle
him and smashing his head against the door. No one came to his
aid. He later testified, "My air supply was being cut off, my eyes
became blurred, and I feared for my life." In desperation, he
unsheathed an ornamental sword blade in his walking stick and
slashed at one of his attackers, stabbing the man in the stomach.
The assailants were charged with wounding. Butler was tried and
convicted of carrying an offensive weapon.[7]
In 1994, an English homeowner, armed with a toy gun, managed to
detain two burglars who had broken into his house while he called
the police. When the officers arrived, they arrested the homeowner
for using an imitation gun to threaten or intimidate. In a similar
incident the following year, when an elderly woman fired a toy cap
pistol to drive off a group of youths who were threatening her,
she was arrested for putting someone in fear. Now the police are
pressing Parliament to make imitation guns
illegal.[8]
In 1999, in a celebrated case, Tony Martin, a 55-year-old Norfolk
farmer living alone in a shabby farmhouse, awakened to the sound
of breaking glass as two burglars, both with long criminal
records, burst into his home. He had been robbed six times before,
and his village, like the majority of rural English communities,
had no police presence. He sneaked downstairs with a shotgun and
shot at the intruders. Martin received life in prison for killing
one burglar, 10 years for wounding the second, and a year for
having an unregistered shotgun. The wounded burglar, having served
18 months of a three- year sentence, is now free and has been
granted ?5,000 of legal assistance to sue
Martin.[9]
I give these examples, not so much for the moment because of what
I consider to be the validity or otherwise of the arguments on
either side, but because they come from real life, and illustrate
the way in which the concept of "social justice" enters into
conflict with the ordinary concept of justice with which we are
familiar from our everyday lives. Somone who does not understand
and make use of the ordinary concept lacks a fundamental
instrument of practical understanding. By contrast, someone who
either does not understand or rejects the current conceptions of
"social justice" is in no way impeded by that from finding
rational solutions to conflicts and problems or from leading a
full and morally irreproachable life.
Ordinary justice and "social justice" have very different
consequences for the material well-being of the community.
Ordinary justice makes possible a constant improvement in people's
material standard of living, because it creates the
conditions under which the free production and exchange of goods
and services can be maximized. Economic development results
from economic freedom, and ordinary justice secures that
freedom. "Social justice", by contrast, hinders the
material improvement of life because it hinders that
freedom. Supporters of "social justice" typically argue, it
is true, that the improvement in the standard of living that
results from ordinary justice is restricted to a particular group
in society and is not experienced equally by all. It may be true
that it is not always experienced by all immediately, and only
after a lapse of time. On the other hand, economic studies
have shown that in the normal course of events, in the absence of
unjustified coercion, the chief beneficiaries of economic
freedom are the poor, because what the poor most need are plenty
of jobs and low prices, and these are fostered by a regime of
ordinary justice.
Footnotes
[1] For example, "Wiz wit" is the customary
order in south Philadelphia for a sandwich with Cheese-whiz and
onions.
[2] Gainesville, a publication of the Gainesville
Chamber of Commerce.
[3] Firearm News, a publication of Victims
Against Crime, P O Box 2522, Clareinch 7740, South Africa. 2004,
Volume 2.
[4] Ibid
[5] Ibid
[6] Ibid
[7] Ibid
[8]
Ibid
[9] Ibid. Even if these reports should not be in all
respects entirely accurate -- since I do not possess
the means to verify them easily -- they are
sufficient to illustrate the well-known difference on this subject
between the two contrasting views of justice.
Thomas Patrick Burke, Th.D.
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