Lecture 5: Justice and Law

Classical Liberalism

A Lecture Series with Prof. Thomas Patrick Burke

In the last lecture I argued that the first and most basic of moral demands is to respect the freedom of the will, since this freedom is the source and foundation of the moral order.  And we have seen that from the fact of this freedom of the will and its attendant moral order there arises human dignity. Since we ourselves possess freedom of will, the first of moral demands in regard to ourself is to respect our own freedom of will and so our own dignity.  This means there are certain things we will not do to ourselves, in general things that diminish or deprive us of our natural freedom of the will without sufficient justification. What these might be is a subject for another time, since we are here concerned with classical liberalism, which is a philosophy of society rather than of individual living.  Yet the two are not entirely separate, since the way we treat ourselves cannot fail to have an effect on the way we treat others.  People who do not have habitual respect for themselves will be unlikely to have it for others.  For the basis of the respect is the same.

For the moment, however, we are concerned with society, our relationships with others.  A moral demand is always a demand addressed to a will. The first and most basic moral demand in regard to others is addressed to our will in regard to other wills.  It is that we should respect their freedom.  By “respect” I mean not merely an emotion, such as a feeling of reverence, but a will to acknowledge by our actions that they place us under an obligation.  The chief obligation is not to infringe on their freedom. Respect for the interior freedom of other persons consists in giving them exterior freedom of action. That is, refraining from the use of force or coercion on them, except where there is sufficient justification for that. We still have to see what that justification might be. And we have seen further that this external liberty and this alone constitutes the basic respect due to human dignity.

Justice defined.

Now the first and most basic of moral virtues in regard to others is justice. In describing the basic moral demand in regard to others, then, we have defined justice. Justice is a matter of the relationship between our will and the wills of others.  The hallmark of justice is respect for other persons’ freedom of will. A will is just if it respects the freedom of will of all other persons. An action that infringes on the freedom of will of another person (without sufficient justification) is unjust.

This definition is confirmed by the way justice is ordinarily regarded.  It is a distinguishing feature of justice when compared with other concepts or principles that offenses against it can, in the common view, legitimately be punished by coercion.  Universally it is considered that in order to remedy injustice it is right to use force. This is not true of any other virtue. Nobody believes that imprudence, or intemperance, unkindness or even cowardice (taken by itself), or any other of the vices or failings that human flesh is heir to can properly be punished by the use of force. Why is this? What is special about justice in this regard?  The reason can only be that it is recognised at least implicitly that every act of injustice already itself involves a use and misuse of force. Acts of injustice, in all their immense variety, are coercive, and only coercion can balance out and overcome coercion.  Injustice can be punished by coercion because coercion can be punished by coercion. Justice is coercive because injustice is always coercive.

In itself coercion is unjust. Only injustice can be punished or abolished by what itself would otherwise be injustice. For only in coercion do we discount, override and trample on the freedom of will of the other, negating its inherent and natural liberty. What is wrong with coercion is not that it eliminates the object or purpose of the other’s will or prevents that from being achieved, but that it overrides the will’s freedom.


In order to bring out the difference of our own theory, we will briefly review some other theories of justice and their relation to our own. In Aristotle’s conception justice is always a quality of the will, rather than of objective states of affairs which are not the product of will, and to this extent his view is in agreement with our own. Beyond that, justice in general as explained by Aristotle consists in due proportion. A just distribution of the profits of an investment is one proportionate to the original investment, or more generally to the ground of the distribution, a just price is one proportionate to the object’s value, a just penalty one proportionate to the crime, a just criticism one proportionate to the fault. There are two basic kinds of justice: justice in distribution and corrective justice; and the latter is of two further kinds, justice in exchange and criminal justice (Nicomachean Ethics, Bk. 5, chapter 3).

Our thesis, by contrast, is that an action is just when it respects the freedom of will of others and unjust when it does not. Aristotle’s exclusive interpretation of justice as proportion and injustice as disproportion, while in a sense true (we will see more about this below), is inadequate to explain the wickedness of serious injustice. When Cornwall puts Gloucester’s eyes out in King Lear, this is more than a case of disproportion. What makes Cornwall’s action unjust is that it injures Gloucester against Gloucester’s will.  If Gloucester had freely consented to it, it would not have been unjust.  (Of course, in the play Gloucester is technically a traitor; but his cause is just.)

Let us take as an example of justice in distribution the act of a man distributing to himself and his partner the proceeds of a trading voyage. The just distribution will be the one proportionate to their respective investments, says Aristotle: one partner, let us say, has contributed twice as much as the other, and therefore should receive twice as much of the proceeds.  But in our view this proportion holds only because it is agreed to and is voluntary. A situation can be imagined where for some reason the agreement is to divide the proceeds in a different ratio, such as three or four to one, perhaps because of family considerations or some non-commercialgratitude or who knows what. In that case that will be the just distribution. A distribution in which the distributor “gives too much to himself and not enough to his partner” will be unjust, not because of the abstract proportion, but because it is against what was agreed to and is coercive. Aristotle’s views on this question are influenced by his common but mistaken assumption that exchange values have objective existence. For he believes that for an exchange to take place, the value of the goods exchanged must be equal. This overlooks the fact that the goods are valued differently by the two sides. The buyer values the goods he buys more than he values the money he pays for them, while the seller values the money he receives for his goods more than he values the goods themselves. It is true Aristotle recognizes that the correct unit for measuring the exchange value of goods is demand, but he does not allow for the difference in demand between the two sides, which is the true explanation of the exchange (Nic. Eth., V, 5).

Aristotle and many others have accepted the concept of a “just price,” which was the price equal to the value of the goods, on the supposition that that value is objective. Locke, Adam Smith, and Marx held this view, and considered that the value of anything exchanged was created by the quantity of labor that went into making it. But the truth was stated by Hobbes: the just price of any item is whatever anyone is willing to pay for it. More recently this truth was emphasized by the members of the so-called Austrian School of economics. Economic or exchange value is not objective, but subjective. It is a matter of voluntary agreement. It is dependent therefore on time. The economic value of my house today is whatever anyone is willing to pay for it today. Tomorrow it may be very different.


As explained by other writers, beginning with Plato, justice consists in rationality, so that an injustice is always an irrational action. This needs to be properly understood: it does not mean there cannot be reasons for an unjust action. Obviously there can be reasons of a certain kind, but they are outweighed by others that are of a more fundamental nature and more powerful.

For Plato, justice is first and foremost a quality of the soul, namely a soul governed by reason. The soul, he states, consists of three parts, desire, spirit, and reason, and when the soul is rightly ordered the power of reason controls the other two (Republic). We have no difficulty agreeing with this. It is entirely rational to respect the freedom of will of persons and to avoid coercion. To do that it is no doubt necessary for reason to control our desires and spirit (in the Platonic sense).

But a serious injustice seems to be more and worse than merely irrational. To describe the gas chambers at Auschwitz as irrational, however true it may be, does not seem to capture the enormity of what was done. An action may be exceedingly irrational yet not be unjust. Every unjust action is no doubt irrational, but the proposition cannot be reversed.

Moral values cannot be explained by reducing them to nonmoral values. If moral values are to be explained as a demand of rationality, as they are explained by Plato and Aristotle, it cannot be merely rationality in general but must be a special moral kind of rationality. If moral values are to be explained as a form of coherence, as they are explained by Kant, it cannot be mere coherence in general but must be a special moral kind of coherence. It is not mere incoherence in general that would lead a person to say he would not be able to live with himself if he did a certain unjust deed: some degree of incoherence is part of human life. If moral values are to be explained as a form of utility, as they are by Mill, it cannot be mere utility in
general but must be a special moral kind of utility. But then in all these cases what is distinctive and special about moral values must still be accounted for.

Roman Law

The Digests of Justinian define justice as: to live uprightly, not to injure the other, and to give to each person what belongs to him (honeste vivere, alterum non laedere, cuique suum tribuere).  This is fully consistent with our account.  Justice comprises two elements: the negative one of refraining from inflicting injury, that is, from using coercion without cause,  and the positive one of respecting the rights of ownership. We will discuss these in a later lecture.


Contracts are binding only because they are a product of free will. When two persons make an agreement, their free wills are joined; each offers to suffer a loss to the other in order to obtain a gain from the other. Each one thereby has an obligation to provide for the other what he has agreed to provide, for if he fails to do this, while the other does it, he causes the other to suffer a loss without the gain that justified it. The obligation exists only because it has been entered into freely. A person coerced to give consent is under no moral obligation to keep the contract. In which case neither is the other. Although there may be an appearance of a contract, there is no contract.

This also applies to conditional coercion. A law which states: if you employ A, you must also employ B, whether you wish to or not, coerces the employer into hiring B if he hires A. This is an infringement on the employer’s free will, and the resulting contract of employment with B is an empty formality which, whatever power may be bestowed on it by the law, is devoid of moral force.


Desert is a consequence of the freedom of the will, and of the fact that the justice of an action consists in its compatibility with freedom of the will. It is only in virtue of the fact that persons possess free will and could have acted differently from the way they did that they can deserve to be treated in a certain way. A being that does not possess free will cannot deserve anything. If, as we argue, human beings possess free will, and are therefore responsible for their actions and answerable for them to others, and if justice means respecting that freedom of will, it means also recognizing and respecting the fact that people are indeed responsible for their actions and accountable for them to others. Justice means, therefore, treating people in accordance with their actions, that is, with their deserts. Those who use their freedom to do good deserve to receive good in return, and those who use it to do harm deserve to receive harm in return. This is natural desert.

A criminal deserves a punishment proportionate to his crime. A person who wishes to prevent such punishment makes himself complicit in the crime. To impose a heavier punishment than the criminal deserves is to commit a new crime.

Human dignity is twofold. There is the species-dignity that every human being possesses just by being human, that is, by possessing freedom of will. This dignity is permanent.  In addition to this, there is also the distinct moral dignity of each individual.  This is created or destroyed by his actions.  The person who uses his own freedom of will to override and trample on the freedom of will of others, even though their freedom of will is just as entitled to respect as his own, makes himself worthy of contempt.

Paradoxically, however, to treat people as they deserve is to honor their freedom of will and their dignity as rational beings. Not only just reward but also just punishment is a form of respect. This is why Plato’s Socrates could say that punishment heals the soul, and why Hegel could hold that the criminal has a right to punishment.

In the view of John Rawls, however, there is no such thing as natural desert. For no one deserves his natural endowments, Rawls argues, and so no one deserves what he accomplishes with them. We do not deserve even our own moral character, because many factors besides our own actions have contributed to making it possible for us to have that character. Only within the framework of some institution, such as an agreement or a promise, can it make sense to talk of desert, he believes. If the organizers of the race have promised that the first one past the post wins the prize, and if you are the first one past the post, then you deserve to win the prize. But if no one has made such a promise, you do not deserve to win. Of course, if we do not deserve our good character, it should follow, though strangely he does not discuss this, that we also do not deserve our bad one, and so we do not deserve to be penalized for the crimes we commit. Although Rawls does not draw this conclusion explicitly, many have.

Even if it is true that we do not deserve our natural talents, however, that does not prevent them from being rightly ours. I do not deserve my existence, but anyone who takes it away from me commits a crime. If someone gives me a gift, say for my birthday, it may well be that I don’t deserve it, but that does not make his action in giving it, or mine in accepting it, unjust. A gift may be given precisely because it is undeserved. People are entitled to give gifts, and to accept them. When they accept them, they own them, and anyone who takes them away by force commits the crime of theft, which deserves punishment. But if your natural talents are rightly yours, then what you achieve by using them is also rightly yours. The thesis that there is no such thing as natural desert is little more than another way of denying that there is freedom of the will.

But Aristotle refuted that viewpoint decisively in pointing out that it depends on us, it is “up to us,” what kind of character we have, because everyone knows that our character is built up over time by our behavior, for which we are responsible. That other factors also contributed is irrelevant. Nothing is ever accomplished without luck; but that does not mean that all accomplishment is mere luck. It is right to admire a person for his excellent character. Suppose that someone has had every conceivable advantage in regard to leading an ethical life, has had exemplary parents, teachers, and friends, good instruction, and no temptations arising from poverty, ill health, etc. It was still possible for him to fail calamitously, because his will is free. You might say it was unlikely, but it was not impossible, and in actual fact such things happen not infrequently. If it did not happen in this case, that is to his credit.


A law is a rule that can be enforced by coercion.

The question as to what laws there should be involves therefore unavoidably the question as to when it is permissible to employ coercion. The answer to this question can only be: when it is for the purpose of preventing or punishing unjust coercion.  For only coercion can balance out and overcome coercion; and to use coercion for any other purpose is to commit a crime.

We have seen that justice is a moral demand. For justice consists in respect for the freedom of the will, and for the human dignity that arises out of that freedom. The moral order demands this respect. This justice is so far a quality of the will, and injustice as we have seen is also a quality of the will. As Plato said, it is a quality of the soul. But human society is not just a question of the soul, but also of the body, of the whole person. Through our bodies that we act on one another, both for good and for ill, for life and for death. It is through our actions and our bodies that we respect and disrespect one another. Injustice is never merely an interior condition, a thought or desire,  but it always includes an exterior or bodily dimension, at least the intention to perform an action.  Out of the interior freedom of the will there arises therefore a moral demand for external and bodily desert, and so for external and bodily punishment where it is appropriate, which is desert carried out by force.

Coercion in itself is unjust, as we have seen, since it infringes on the freedom of the individual’s will. The only just purpose for which coercion can be used is to prevent or punish unjust coercion.  This is also true of law: a just law is only one that prohibits or punishes unjust coercion, or that is necessary for that purpose.

There is a moral demand not merely for justice but for a system of justice. The moral demand for justice includes a demand for courts of law that will judge disputes justly, and so for the police that will enforce the verdicts of the courts, and for the punishments assigned by the courts. Police and courts of law are not merely conventional institutions that owe their significance to the customs of the society.  They are the embodiment of that respect for the freedom of the will that constitutes justice.