Thomas Patrick Burke
D.Phil.,D.Th.
President, Wynnewood Institute, Professor Emeritus of Religion, Temple University
Classical Liberalism
A Lecture Series with Prof. Thomas Patrick Burke
Ordinary Justice
In previous chapters we saw that justice and injustice are concepts of ethical evaluation, and that all ethical evaluations or judgements are judgements about the quality of a will. I argued that what is distinctive about justice in comparison with other ethical qualities such as courage or kindness is that justice is a quality of the individual will in relationship to other wills. The question of justice is a question about how a person should treat other persons. Specifically, justice is the quality of respecting, or being compatible with, the freedom of other wills. Injustice is the quality of a will in virtue of which it infringes on the freedom of another will. For all unjust actions are coercive, and all unjustified coercion is by its nature unjust. That is, injustice always involves in some way or other the mistreatment of persons. Whether the mistreatment is deliberate or merely negligent or a matter of culpable ignorance (as in the case of the drug addict who turns a blind eye to the consequences of his habit for his family), someone is being wronged, and the person who is causing the wrong is responsible for it and accountable for it to others. He is employing his freedom to override, negate and trample on the other’s freedom, even though his own freedom has no higher worth than the other’s. If an action is judged unjust, that judgement will also apply to the state of affairs that results from the action, and also to the character of the person who did the action.
Since justice is a quality of actions, and since an action is always the action of someone, when an injustice occurs it can always be imputed or attributed to an agent: it is because someone has done something wrong. The agent is responsible for the wrong and accountable for it, and deserves to be punished for it. On the other hand when someone has done something good and beneficial for another, he deserves to receive good in return for it: praise and perhaps reward. Justice means treating people in accordance with their deserts. This is justice as it has been understood since time immemorial. It is the justice we go by in the ordinary course of everyday life, making agreements, paying our bills, respecting other people’s property and punishing criminals.
To ensure that those who do harm to others receive what they deserve we have a system of justice, comprising an executive authority, laws, courts of law, an armed force and institutions of punishment. In the last lecture we saw that this system of justice exists in virtue of an absolute moral imperative deriving from the freedom of the human will, which demands protection from unjust coercion. And we saw that the system of justice is government.
Ordinary justice is a formal concept rather than a material one. It refers to a rule rather than to a particular content, to a procedure rather than any specific outcome of the procedure. For example, one rule of justice says: Do not steal. It does not say that stealing $1,000 is ok but stealing $2,000 is wrong, or that stealing from some people is wrong but from others is right, or stealing some kinds of objects is wrong but stealing other kinds of objects is right. It is the act of stealing itself, taking somebody else’s property for yourself, that is wrong. Whatever takes place according to the rule of justice is just. As in a court of law, whatever verdict results from following the right procedure is right.
Social Justice
During the nineteenth century, however, under the influence of the growing socialist movement, a new and very different conception of justice was proposed and has gained wide acceptance. This is the view that there is a justice for society which is different from ordinary justice and supersedes that. John Stuart Mill exemplified this new view by saying that for any child to be born into poverty was an injustice. Poverty itself was thereby described as unjust. In the United States from the time of the Great Depression in the 1930s and the programs instituted by President Roosevelt, social justice generally was understood to mean economic equality, and social injustice meant economic inequality or poverty. A social justice program was understood to be a government program to overcome poverty, typically by “redistributing” to the poor the wealth of others.
After the Second World War, and especially with the passage of the US Civil Rights Act of 1964 which outlawed discrimination not only on the ground of race but also on that of sex, the meaning of social justice was extended beyond the realm of economic concerns and the question of poverty into the more general realm of societal power. Social justice is now generally understood as equality of power, and inequality of power is viewed as unjust, quite apart from any considerations regarding poverty.
A very significant aspect of inequality is that is is viewed as unjust no matter how it came about. It is not unjust because it is the product of unjust actions. It is unjust simply by its nature. Why this should be so, however, has never been explained.
Social justice understood in this way is not a formal concept but a material one: it is defined by a particular content. That content is equality. Whatever contributes to equality is right and whatever makes people unequal is wrong. If stealing contributes to equality, by “redistribution,” that is fine; for example if the poor steal from the rich. The only stealing that is wrong is stealing that increases inequality, as when the rich steal from the poor.
However, in a curious development, the campaign against discrimination has been so successful that many people now often no longer associate it with social justice, but assume that non-discrimination is a requirement of ordinary justice. Often they assume that the demand for equality itself is part of ordinary justice. As a result there are some who oppose antipoverty measures such as governmental welfare programs, which aim to implement social justice, but at the same time approve of non-discrimination policies, including homosexual marriage, whose aim is equally to implement social justice.
Critique of Social Justice
Social justice, the demand for economic equality or equality of power in society, far from being an extension of ordinary justice, as many people assume, is not merely different from it but is opposed to it and incompatible with it. There are two main reasons why this is so.
1. Will vs. States of Affairs
A first thing to note is that the concept of equality of power contains no reference to a will. Equality of power is not an action, nor is it necessarily the product of an action, nor is it constitutive of the moral character of a person. Equality refers purely to an objective or exterior state of affairs in society which can be ascertained from statistics, without any reference to the factors that produced it. For inequality of power to exist in a society, it is not necessary that anyone have done anything wrong. Indeed, it is not necessary that anyone have done anything whatsoever, for inequality can happen entirely by accident. Or it can happen in virtue of a positively good action done to others.
Since “social injustice” or “equality” does not refer to an action, it is not affected by anyone’s intention. Even for the worst of crimes, such as murder, if it becomes clear that the person had no evil intention, there can be no question of guilt, from the viewpoint of ordinary justice. But the Supreme Court informed us in 1971, in creating the concept of “disparate impact,” that it is possible to offend against social justice, namely by discrimination, even if one had no intention to discriminate. The importance of this lies in the fact that it abolishes individual responsibility. One can now be penalized for something one cannot be considered responsible for.
To make this clearer, consider the difference between an action and a state of affairs. Robbery is an action, not a state of affairs. Poverty is a state of affairs, not an action. The difference is that in the case of an action, there is always some person who did the action, to whom the action can be imputed, and who is therefore responsible for it and accountable for it to others. With a state of affairs this is by no means necessarily the case except when it is the product of an action. Justice is a concept of ethical evaluation, and any ethical evaluation or judgement is always a judgement on an action, that is, on a will. It is never a judgement solely on an external or objective state of affairs. Moral values are all values of the will. If we examine any other moral value or moral virtue, we see immediately that this is the case. Consider kindness, courage or prudence, for example. Kindness is a quality of a person’s will. A kind person is one who does kind actions. There is no such thing as a state of kindness or unkindness unrelated to kind actions. Courage likewise is always a quality of a person’s will. A courageous person is one who does courageous actions. There is no such thing as a state of courage or cowardice unrelated to courageous or cowardly behavior. And so on with prudence and the other moral virtues.
Ordinary justice is likewise a quality of the will, and it is a quality of states of affairs only in so far as they are the product of a will. An injustice in the sense of ordinary justice can occur only where someone does something wrong. But economic inequality or inequality of power is not a quality of a will, but only of states of affairs which can occur entirely by accident without anyone doing anything wrong, or indeed doing anything whatever. For inequality can come about merely by the fact that a benefit has been given to someone else. Inequality therefore cannot possibly be a concept of ethical evaluation. That is what philosophers call a category mistake. It is like attributing kindness to a brick.
2. Coercion
The second reason for disallowing social justice as a legitimate form of justice is the role of coercion. It is universally acknowledged that a true injustice can legitimately be remedied by the use of force or coercion. The reason for this is that all acts of injustice are themselves invariably coercive. This is clear from the fact that for an act to be considered unjust it must be done without the consent of the subject. If the person affected by the act consents to the act, it cannot be an injustice. A surgeon performing an operation inflicts serious harm on the patient by cutting him open. If this were done without the patient’s consent, as in Nazi experiments on prisoners, it would be a gross injustice, to say the least, and in our society grounds for a lawsuit. But since, in the usual case, the patient consents, there is no question of injustice.
But a state of affairs such as inequality in society is by no means necessarily an act of coercion. For first, as we have just seen, it is not an action. But secondly, it does not of itself involve coercion. A difference in salaries, for example, sufficient to call down the judgement of the Supreme Court as a punishable case of “disparate impact,” may simply be the result of peaceful and voluntary agreements. Social justice, then, is not justice at all, but merely pseudo-justice. Both these arguments have been made at greater length in my recent book The Concept of Justice.
All this has serious consequences for how we view discrimination. Which will be the topic of the next lecture.
The concept of social justice has in my opinion proved to be one of the most destructive conceptions the human mind has invented. Throughout the nations of the Western world it has to a considerable extent replaced genuine justice, undermining the very foundations of moral order and social order in the part of the world that previously had that order to the highest degree. It undercuts every institution in society by assigning to it, in addition to the natural purpose for which it was founded, a further purpose which is to create equality in society. But such a further purpose is incompatible with the original purposes of institutions and leaves them weakened and enfeebled. It is also diminishes all authority in civil society, because authority runs counter to equality. See The Concept of Justice, pp. 22 ff.