On: The Concept of Justice: Is Social Justice Just?
(London and New York, Continuum, 2011)
Thomas Patrick Burke
Everybody knows the nations of Europe have a debt crisis. And everybody knows the United States has a financial crisis. But I am sorry to tell you there is another crisis which almost nobody knows, which is deeper and more serious than either debts or recessions, and which has in effect caused both of these crises. That is the crisis in our concept of justice. It is in crisis because, instead of having a single conception of justice, as Western civilization had from its earliest days, we now have two. They are what I will call ordinary justice, and what is called “social justice.” Many people assume these are in harmony with one another, that social justice is only an addition, or extension or new-and-improved version of ordinary justice. But the truth is, not only are they different from one another, but they are diametrically opposed to one another and in fact they are incompatible with one another. Furthermore, confusion about them is by no means the particular privilege of any one political party, but is almost universal in our society. I would like first to explain what these two conceptions are and why they are in such deep contradiction. And second, so far as time allows, to explain how the confusion between them has caused such havoc.
There is a simple distinction which lies at the heart of our problem. It does not require any abstruse philosophy, but is a matter of common sense, and at first you may feel surprised that I even take up your time with it. It is the difference between an action and a state of affairs. An action is something someone does. A state of affairs is not something someone does. An action can produce a state of affairs, but the distinction always remains between the action, which is the cause, and the state of affairs, which is its effect. A state of affairs is the way things are at some particular time and place. It is a static condition, the kind of thing we would describe as a fact or a situation. An action, by contrast, is an event, a transient happening, carried out by some person, usually for a purpose. Allow me to give you an example, which at the same time will begin to suggest its implications. A robbery is not a state of affairs but an action. Poverty is not an action but a state of affairs. The difference between actions and states of affairs is important because an ethical quality is always a quality of persons and their actions: it is first and foremost a quality of actions, and consequently a quality of the persons who perform the actions.
An action is the expression of a will, and an ethical judgment always implies a judgment on a will. It is in the will that ethical goodness resides, and ethical badness. An accidental event cannot, in any literal sense of the term, be either ethical or unethical. Accidental justice is never more than poetical. Accidental kindness is merely good fortune. Events that occur in the realm of nature, such as earthquakes and volcanic eruptions, since they are not the product of a will, lie inherently outside the domain of moral judgment. A moral judgment is always a verdict on the quality of a person. That quality resides in his will. A person is good or evil, selfish or unselfish, kind or unkind, generous or grasping, just or unjust, depending entirely on his will. That is what Aristotle is saying when he restricts ethical judgments only to the realm of the voluntary, not to the involuntary (ekousion, not akousion). That is a fundamental truth. Whatever is involuntary, whether it be a thought or an action or a state of affairs in society, does not belong in the category of the ethical.
It is a hallmark of ordinary justice that states of affairs can be just or unjust only to the extent that rational agents can be held to account for them. And rational beings can be held to account only for those states of affairs that issue directly or indirectly from their own will. In particular, the injustice of a state of affairs is either the direct result of an unjust action, or it involves the willful or negligent mistreatment of persons. Mistreatment comes in many forms. In some cases the injustice is deliberately intended; in other cases it arises by negligence or weakness of will; in other cases still it arises from a culpable ignorance, as when a drug addict turns a blind eye to the consequences of his addiction for his family. But in all these cases a state of affairs is being imputed or attributed to the will of an agent. In all these cases someone makes himself responsible for the consequences of his own behaviour. And in the end it is this concept of responsibility that is pivotal for understanding the concept of justice. Where there is injustice, there is somebody responsible for it. Where there is no one responsible, there cannot be injustice.
A further important aspect of ordinary justice is that it sees a big difference between justice and fairness. Fairness means that people are treated equally, but justice means they are treated as they deserve. Sometimes the two coincide. If I treat someone unjustly, say by robbing him at gunpoint, I also necessarily treat him unfairly. But the reverse does not hold. The sole fact that I treat someone unfairly or unequally does not necessarily mean I treat him unjustly, for there are many good reasons for treating people unequally. Fairness is a genuine virtue. It is good and humane to treat people fairly. But it is not the same thing as justice. Offenses against justice can rightly be punished by the use of coercion, as by the police and the courts or the military, but offenses against fairness do not belong to the same category. They do not deserve to be punished, and to punish them as if they were unjust is itself to act unjustly.
Let us turn now to the concept of “social justice.” What does this term mean? The most common meaning of “social justice” at the present time is equality in society. This was not its original meaning, when the term was first coined in 1840 by the Italian Jesuit, Luigi Taparelli, which was explicitly conservative. Or as it was used by Antonio Rosmini in 1848 (La Costituzione secondo la giustizia sociale), who was a liberal in the European sense. If anybody is interested we can go into its historical development in the question time, for that is more significant than many people are aware. But for the moment let us stick with its current meaning. The meaning “social justice” now has was given to it in England by the Christian Socialists and others in the latter part of the 19th century and is very different from what Taparelli and Rosmini understood by it. In the 20th century it was further developed and spread mainly by a pope, Pius XI, in his encyclical letter of 1931, Quadragesimo anno, which declared social justice to be part of Catholic teaching. I say this with sorrow, because in other respects I have a high opinion of Christianity and Catholicism. As described by Pius and subsequent popes, social justice was a demand for economic equality, and therefore for the elimination of poverty, and this largely remains its meaning in Catholic circles. After the Second World War, however, especially after the United Nations Declaration of Human Rights in 1948, and after the passage of the Civil Rights Act of 1964 by the U.S. Congress, the scope of the term “social justice” was greatly widened, to include in effect everything considered to belong to Human Rights (and in the U.S., by Civil Rights), now embracing such things as “same-sex marriage.” This is sometimes summed up as inequality of power in society. At the present time the most noteworthy form of social justice is perhaps the demand for the prohibition of discrimination, and especially discrimination on the grounds of sex. So let us talk a little about that.
At the present time discrimination is generally condemned in enlightened society as immoral. In remote New Zealand, for example, the law prohibits discrimination on the grounds of sex—which includes pregnancy and childbirth—marital status, religious belief, ethical belief, color, race, ethnic or national origin or citizenship, disability, age, political opinion, employment status, family status, or sexual orientation. Protocoll 12 of the European Convention on Human Rights states:
The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
In other words, all forms of discrimination are evil. The basis for the condemnation is that discrimination leads to inequality in society, and inequality in society is considered unjust. But there is a great fallacy here, as we have just suggested. Inequality can happen in society without anyone being responsible for it. It is not necessarily the result of anybody’s action, or the product of anybody’s will. This means that inequality cannot properly be the subject of a moral predicate: it cannot, as such, be either just or unjust. It can certainly be viewed as good or bad from a utilitarian viewpoint, but it cannot be immoral. Calling inequality immoral is like calling a brick immoral. Only persons and their actions can be moral or immoral, and the states of affairs brought about by their willful actions. This means that “social justice” as it is now commonly understood is not justice at all, and “social injustice” is generally not injustice at all.
Against this it is sometimes urged that inequality, though not the result of anyone’s direct will, can be the result of inaction, negligence, of the failure of individuals or society to take measures that would correct it. But that presupposes that there is an obligation to counteract inequality, which assumes again that a state of inequality is of itself unjust.
There is a difference of central importance between coercive discrimination and peaceful discrimination. Slavery and forcible segregation in the U.S. were cases of coercive discrimination. Discrimination in commerce, in buying and selling, is normally peaceful. Coercive discrimination is wrong, not because it is discrimination but because it is coercive. Peaceful discrimination, whatever the reason for it, while often unfair, is never unjust and ought not to be prohibited by law. For peaceful discrimination inflicts no injury. In order to practice discrimination it is not necessary to perform any action in regard to the individuals discriminated against. All that is necessary is to give a benefit to somebody else. Not long ago a New York court inflicted a large penalty on the Swiss pharmaceutical company Novartis for discriminating against women. The ground of the charge was that the firm paid men doing the same work $75 a month more. The benefit to the men as treated as if it were an injury to the women. But it was demonstrably not an injury to the women, and the penalty was overkill and unjust. According to the U.S. Supreme Court in a decision of 1971 it is not even necessary to have the intention to discriminate. The mere fact that an action or policy unintentionally creates a “disparate impact” is sufficient. But it is impossible to commit a genuine crime unintentionally.
Of course there are many situations where “bias” should be excluded. The very idea of bias suggests a favoring of one side rather than the other that is unjustifiable. But this can only occur when there is some special reason for equal treatment. In an athletic event, in a court of law, or in an academic examination, the purpose of the event demands that judgement should be based strictly on certain grounds, and therefore be unbiassed. But there are many other cases where there is no such special reason, and a personal preference for one side or the other, even an irrational preference, is legitimate.
The call for the prohibition of peaceful discrimination is based, not on ordinary justice, but on “social” justice, and social justice, as I have suggested, is not justice at all but only fake or pseudo-justice. My book argues that peaceful discrimination should be considered a natural right.
One of the great beneficial creations of the human race are institutions. An institution is an organized form of cooperation. A bank is an institution and so are shops and governments and churches and families and schools and even languages. Ordinary justice protects and fosters beneficial institutions so that they can fulfill their missions. “Social justice” as currently understood, with its confusion of fairness with justice, tends, however, to undermine all institutions, for all institutions typically involve some kind of authority, and authority is not compatible with equality. All authority places some over others, and that is less than ideal from the viewpoint of social justice, and sometimes intolerable.
Even the authority of God is not immune, especially since it is easily disposed of by the simple expedient of denying the authority’s existence. Our current crop of atheists a’ la Harris, Hawking and Dawkins mostly point to science as the source that justifies their viewpoint; but science is far from disproving the existence of God, while devotion to “social justice” is in many cases sufficient to explain their stance. A very large part of modern secularism rests on no more substantial foundation than the shaky underpinnings of the gospel of equality.
Institutions are founded to achieve certain purposes. Schools are created to give children knowledge, banks are founded to safeguard and to lend money, governments to make laws, businesses to make a profit, churches to care for spiritual well-being, the military to protect the nation, and so on. But social justice makes every institution subserve a second purpose: creating equality in society. Every institution now has two masters. It is not enough for schools to provide knowledge: they must now also contribute to the project of equality in society, through the teachers they employ, the students they accept, their practices on promotion, their curriculum, and so on. It is not enough for the military to defend the nation effectively, but it must also contribute to the task of equalizing society. It is not enough for our language to express our thoughts, or for our shops and commercial institutions to make a profit, but they must also assist in the enterprise of creating equality in society. Consequently under a regime of social justice every institution is weakened. From the viewpoint of social justice the family, for example, is not the foundation of society but rather the source of privilege and inequality, and so ought to be eliminated.
Social justice is not in the first instance a demand on individuals, but on the state. For only the state can carry its demands out. The effect of social justice on a society, therefore, is to transfer power massively from individuals to the state. But at the same time the state is the supreme authority in Western society, or has been until now, and so, incoherently, the effect of social justice is also to undermine the authority of the state. This can be seen in democratic states, where the demand of the populace for programs of “social justice” leads the state to spend beyond its means, eventually leading it into bankruptcy, as we are now witnessing in several prominent countries. Social justice does not care about ordinary justice, about humdrum realities such as contracts or the repayment of debt. It does not care about economics, or the causes of wealth and poverty. It cares only about equality and inequality themselves and in moral terms, not economic ones. Friedrich Hayek wrote: “the prevailing belief in ‘social justice’ is at present probably the gravest threat to most other values of a free civilization.”
In the book I argue that genuine justice possesses four distinguishing features. First, justice and injustice are primarily qualities, not of states of affairs in society, but of the actions of individuals. They are qualities of states of affairs only in so far as those states of affairs are products of actions. Poverty, for example, regarded in itself is neither just nor unjust. Similarly, inequality of the sexes is neither just nor unjust.
Second, justice and injustice hinge pivotally on the will. Human action is never merely an external or physical event, but always possesses an interior or subjective dimension, captured by English and American common law in the concept of mens rea. Social justice makes no reference to the will and has no equivalent of mens rea.
Third, justice and injustice necessarily entail individual responsibility and accountability. If there has been injustice, this is because some individual knowingly and willingly performed some unjust action, which has caused the harm. He is responsible for it and must be held accountable for it.
Fourth, justice and injustice presuppose that individuals possess freedom of will. A will that is predetermined by extraneous forces cannot have moral value or disvalue. Our ordinary conception of justice and all morality is built upon reverence for the free will.
These four qualities are necessary features of ordinary or genuine justice, but they are not features of “social justice.” Social justice is not justice at all.
The ideas I have been explaining so far represent chiefly Part I of my book, “The Problem.” Part II is concerned with the historical development of the idea of “social justice.” In what remains of my time I would like to summarize very briefly what the book argues in the two chapters on Ethics and Justice in Part III.
Chapter 6, The Concept of Ethics, argues that human beings possess by their nature freedom of will, and this confers dignity on them, or entitlement to respect. Behavior is ethical when it respects that dignity, both in others and in ourselves. Only beings that possess freedom of will can have dignity. And only beings that have freedom of will can give respect. There are therefore two levels of human dignity. One comes with our nature, the result of our innate freedom of will. If you wish you could say this is given us by our genes. The other is the dignity that results from our actions. This is increased or diminished to the extent that our actions are ethical or unethical. The idea of human dignity has, unfortunately, no place in either utilitarianism or social justice as currently understood.
Ethical behavior as understood in accordance with ordinary justice involves imputability, responsibility and accountability. An action is imputable to a person when it originated with him. It means he owns it—it belongs to him and is his action, whether it was good or bad. To say a person is responsible for an action is to say he caused it and also its effects in the world, whether intended or not. If I throw a stone and it accidentally breaks a window, I broke the window. And to say a person is accountable to others for an action is to say he can be liable at law for it. But from the viewpoint of social justice none of these qualities are relevant to ethics, since ethics has to do centrally with equality and inequality in society. That is, “social justice” as currently understood is not and cannot be a category of ethical thought.
Chapter 7, The Concept of Justice, asks: how should a being with free will treat other beings with free will? Most fundamentally, the answer is: by respecting that freedom. This is our definition of justice: justice is the quality of a free action in virtue of which it is compatible with the freedom of will of other persons. Not with their particular purposes, which may be thoroughly unjust and to be strenously resisted, but with the interior freedom of their will. This thesis has far-reaching consequences in many fields. One consequence is that private property is recognized as sacred. For property is an embodiment of the freedom of our will.
This view defends the traditional conception of natural desert against Rawls’s argument that there is no such thing since (he argues) we do not deserve our natural endowments and so do not deserve what we accomplish or gain with them. But against that: even if we do not deserve a gift or talent, it may still be rightly ours, and what we achieve with it likewise may be rightly ours.
The implication of our view is that economic value is subjective, as the Austrian school of economics has argued, rather than objective, as many noted authors have mistakenly assumed, including Aristotle, Aquinas, Locke, Adam Smith and Marx.
To compare my theory with Aristotle’s: consider the question of how the proceeds of an investment should be divided up between the investors. Aristotle maintains it should be in proportion to the objective amount each has invested. But according to the view I defend it should be according to the original contract, whatever that was. An investor may have specified a distribution according to a different proportion, and if that was agreed to by the others it is binding on them. What makes the difference is not the abstract proportion but the voluntary agreement. In all these respects and many others, true justice is greatly at odds with “social justice.”
According to the true and valid conception of social justice as defended in my book, social justice is not a species of justice different from ordinary justice, but is ordinary justice as applied to society. This means it is primarily a matter of respecting the freedom of will of the members of the society. More specifically, a society will embody social justice when
- Its general culture respects the freedom of the will (for example, by the general absence of corruption),
- Its laws do so,
- Its constitution, or law for the making of laws, ensures that the laws do so.
This is close to the understanding of social justice suggested by Antonio Rosmini (see Chapter 3, p. 43ff).