Few things are of more importance to a society than its conception of justice, and few are capable of arousing more intense emotion, because it is justice which provides the chief criterion for the use of force. In the name of justice people are arrested, handcuffed, put on trial, fined, sent to prison, and sometimes put to death.
But during the twentieth century a revolution took place in the Western conception of justice. The traditional understanding of it, taken for granted in the Bible, defined in Roman law, exemplified in the daily workings of the courts of English and American common law, and commented on by jurists and philosophers from Plato to Kant, was largely abandoned. Its place was taken by a new theory which contradicted the ancient one in almost every point. The consequences of this revolution have reached into every corner of our lives: into the family and the relationship between the sexes, the schools, the churches, the workplace, business and the market, the practice of charity, the English language, literature and the arts, popular culture, the courts, the punishment of crime, national defense and relations between nations, producing everywhere not merely small and incidental changes but often overturning the very foundations which had taken centuries to create. It has not only transformed our relationships with one other but has penetrated into our interior life, affecting the wellsprings of our character and of our internal dialogue with ourselves.
My aim here is to investigate the relationship between these two theories, the new and the old. Underneath its revolutionary appearance, is the new theory perhaps basically continuous with the old, merely a legitimate extension and development of it, carrying the same fundamental principles into new fields? Is it, instead, based on new principles that legitimize it as a replacement for the old, which has become outmoded? Or does the new theory depend on new conceptions which are both incompatible with the old theory and illegitimate in themselves?
This paper has three parts. The first part outlines the traditional understanding of justice, the second part describes the new conception, and the third part compares the two.
The Traditional Theory
The traditional conception of justice can be found in the Ten Commandments, in Plato, Aristotle, Cicero, and Roman law, in St Thomas Aquinas and in Christian ethics generally down till the nineteenth century, and in the common law of the English-speaking peoples, including the great commentators on that law, such as Bracton and Blackstone. In some respects it is still accepted today. It is well summarized in the preface to the Institutes of the Roman Emperor Justinian: ‘These are the commandments of the law: to live uprightly, to harm no one, and to give to each person what belongs to him.’
The outstanding or paradigmatical instances of injustice in this view are crimes, things such as murder, robbery, and rape. These are considered unjust because they inflict undeserved harm on individuals. The individuals who commit them are viewed as responsible for their actions, and therefore it is believed that they deserve to be punished.
These instances of injustice share certain features. The first feature to notice is that they are actions performed by individuals. This will be a central point for the remainder of this paper. There is a difference between an action and a state of affairs. An action is something someone does. A state of affairs is not something someone does. For ethics the difference between these two things is crucial, because ethics has to do with the actions people do. An action can produce a state of affairs, as its effect, 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: a state of affairs just is. It is 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 a person, usually for some purpose. A robbery is not a state of affairs, but an action. Poverty is not an action, but a state of affairs. Some states of affairs are the result of actions, but many, especially in the realm of nature, are not the result of any action, but just happen. In traditional ethics, human actions are at the center of the stage. The term “action” here includes also the willful, that is, deliberate or negligent, omission of action.
I’d like now to draw your attention to certain features of actions that are especially important in the traditional view of ethics. One of these is what we might call the interior dimension of action, the state of mind in which it is done. From the viewpoint of traditional ethics the intention and the interior mentality with which the person does the action is a vital consideration. When we judge an action to be ethical or unethical, we pay attention not only to the external or visible action, but to the state of mind in which it is done. When I put the $100 lying on the shop counter in my pocket, it makes a big difference ethically whether I believe it is mine or yours. At least since Peter Abelard, who wrote a fine book on this during the Middle Ages, appreciation of the key role of intention has been an integral part of Western ethics.
The reason is that when a person performs an action intentionally, in the view of traditional ethics he is responsible for his action. If it is a good action he can be praised for it, and if it is an evil action he can be blamed for it. If a person does an action which has the effect of causing harm to someone, but that was not his intention, then he is not considered to be fully responsible for the harm, and is not to be blamed for it. Sometimes the intention alone is sufficient to condemn an action or a person, as in the current trial of Mr Mousaoui, sometimes in addition we recognise a range of other internal states of mind, such as negligence, inattention, or mistaken belief as relevant to the action’s moral status. All of these things the common law has traditionally taken into consideration, in judging a criminal act, under the concept of mens rea. When Mr Cheney, our Vice President, recently had the misfortune to shoot a fellow hunter, the press lost no time in raising questions about his state of mind at the time.
Responsibility presupposes that the person has free will, that he has the power to choose either to do the action or not to do it, that he could have done something else. If an action is not performed freely, it is not a human action. In the traditional view, ethics without free will is nonsense.
If a person deliberately does harm to someone who does not deserve to be harmed, in the traditional understanding of justice the perpetrator deserves to be punished. Our traditional legal system is built on that principle. The purpose of legal punishment is not to rehabilitate the criminal, nor to sequester him from society, but to make him suffer in some proportion to the harm he has caused others, to redress the balance of justice. The just punishment is not the one that cures or rehabilitates or deters, but that is deserved. Probably we could rehabilitate thieves by providing them with a five-year fully paid vacation in the Bahamas, but that would not be just because not deserved.
For all these reasons, in the traditional view only actions can be directly just or unjust. A state of affairs can be good or bad, but it cannot be unjust except as the result of an unjust action. So for example if I have $100 in my pocket, that will be an unjust state of affairs if I have stolen it from you, but the real injustice was my action in stealing it. The bare fact that I have $100 in my pocket of itself is neutral. Similarly the situation created by a law can be unjust because a law is an action.
This applies also to distributive justice. A just distribution of goods is first and foremost a just act Aristotle, who provides us with the classic description of distributive justice, says it is the virtue of not giving more to oneself than to others of what is good, and not giving less to oneself than to others of what is bad (as when, in the kind of example he may have had in mind, one partner divides up the profits or losses from the voyage of a trading ship among the other partners). Since distributive justice is a matter of ethics, the primary focus must be on the individual doing the distributing of distribution carried out by some person.
In the traditional theory there is an important distinction between justice and charity, or as it is sometimes called, benevolence or humanity. An obligation in justice is one that can rightly be enforced by the threat of punishment, but an obligation in charity or humanity cannot.
The traditional theory embodies a strong conception of the individual. It presupposes that individuals have free will, that they are responsible for their actions, and if they wrong others they deserve punishment.
The New Theory
Since the middle of the nineteenth century, however, a new and very different conception of justice has made its appearance, which rejects each of these presuppositions, which denies or at least minimizes the role of free will, and so of individual responsibility, and of action, and rejects likewise the traditional concepts of guilt and innocence, praise and blame, and reward and punishment. This is the theory of justice as fairness, also called the theory of ‘social justice’, or in the U.S. (though not necessarily in Europe) as the ‘liberal’ theory. From the traditional viewpoint, whatever is unjust is also unfair or unequal, but not everything that is unequal is necessarily unjust. There is a difference between justice and fairness. In the new view, however, justice is identified with fairness. Whatever is unequal or unfair is by that very fact unjust. This is so even if it is not an action but a state of affairs. And that state of affairs is unjust no matter how it came about. So we have the bizarre situation that a state of affairs can be labelled “unjust” even though no one has done anything wrong.
This idea of ‘social justice’ was developed in England in 1848 by members of the recently founded movement called Christian Socialism. These were ‘Broad’-church Anglicans, such as John Malcolm Ludlow, Frederick Dennison Maurice, a well-known theologian, Charles Kingsley, the novelist, and others, who were deeply distressed by the desperate poverty of the labouring classes. Ludlow had written a book arguing that Christianity was the fulfillment of socialism, which became the theme of the movement. In point of historical fact, the wretched economic condition of the workers in England at this time seems to have been caused by a severe depression that afflicted all the economies of Western Europe in 1846 and 1847, originating in the failure of the wheat and potato crops. Food prices rose sharply, purchasing power declined, and the agricultural depression was soon followed by an industrial one, in which very large numbers of factory workers were thrown out of work. Similar conditions occurred in France, calling forth the revolution of 1848 and the creation of the Second Republic there. The Christian Socialists, however, did not stop to analyse the actual economic forces at work. Instead, they blamed the plight of the workers on the factory system and on competition. Justice demanded, they said, that the poverty of the workers be relieved. They deplored the poverty, but in the Christian tradition poverty had always been honourable: so they deplored it instead as inequality and injustice.
The initial movement of Christian Socialism in England lasted only a few years; by 1860 it had run its course. But their description of poverty as injustice survived, and some twenty years later the movement came back to life, producing amongst other things a Socialist Quaker Society, the Roman Catholic Socialist Society, and the Christian Social Union. Christian Socialists dominated the leadership of the British Labour Party formed in 1893. The Christian Socialist movement also influenced many of the leaders of the American Socialist Party such as Norman Thomas and Upton Sinclair. The American Socialists in turn played a large role in the creation of the NAACP in 1910, around the black socialist writer W.E. Dubois, and the Civil Rights Movement. In 1931 Pope Pius XI used the term “social justice” in his encyclical Quadragesimo anno, giving it official recognition throughout the Roman Catholic church. “…the right ordering of economic life cannot be left to a free competition of forces. For from this source, as from a poisoned spring, have originated and spread all the errors of individualist economic teaching.” President Franklin Delano Roosevelt quoted this encyclical in a speech before a large crowd in Detroit, saying it was “just as radical as I am,” and “one of the greatest documents of modern times.” Since Roosevelt, social justice has been the driving force behind many pieces of legislation. In 1971 John Rawls published the classic philosophical defense of it in his book A Theory of Justice.
According to this new theory, the notion of justice applies in the first instance not to an action, but to a state of affairs in society, namely a state of fairness or equality, and injustice is a state of societal inequality, especially poverty, economic inequality or inequality of power. As we have just mentioned, economic inequality is considered unjust irrespective of how it came about. As the French writer Bertrand de Jouvenel has described it: ‘The justice now recommended is a quality not of a man and a man’s actions, but of a certain configuration of things in social geometry, no matter by what means it is brought about. Justice is now something which exists independently of just men.’ In the words of Friedrich Hayek, ‘social justice’ ‘defines a factual state of affairs which may but need not have been brought about by deliberate human decision.’ If a sizeable number of people in a society are poor, that is considered not merely bad, but unjust.
Since it is primarily the state of affairs in society that is unjust, irrespective of how it came about, the injustice of actions recedes in significance or even disappears altogether as a matter of concern. Crime, from being the paramount example of injustice, becomes merely a distraction from it.
The most fundamental difference between the old theory and the new lies in their views of freedom. The way was prepared for social justice by scientific determinism, which has led many people, especially among the intellectual classes, to deny the reality of freedom of the will because of what they take to be the implications of science. The physical sciences reveal to us a world in which causality is apparently universal, in which (making due allowance for quantum theory) every event is the necessary product of the circumstances that preceded it. There do not appear to be any exceptions to this in nature, and so it is concluded that this must apply also to human behavior. It is true that whenever we make a choice, we seem to be conscious of having the innate capacity to act differently from the way we do act, and so we assume that we possess the freedom to choose between alternatives, but for many members of the intellectual classes belief in the universal reign of causality trumps our individual consciousness of freedom, and leads them to conclude that that consciousness is an illusion, and that our actions are in fact predetermined by the influence of the biological forces within us and the societal forces around us.
Ethics, as the study of what is good, must turn its attention, then, away from the idea of individual responsibility, it is felt, to those biological, psychological, sociological and historical forces which can be viewed as the causes of the individual’s behavior. In studying crime, for example, it becomes a mistake to blame the criminal. Instead we must understand the societal circumstances which have made him what he is, and we must remedy those. The same analysis applies to terrorism. In some “progressive” circles at the present time, including some of our schools, the very use of the phrase “individual responsibility” marks one as retrograde. The purpose of imprisonment is not, as in the traditional theory, to redress the balance of justice by inflicting punishment on the criminal, because on the most fundamental level he could not really help doing what he did. That is now viewed as mere vengeance. The purpose is to rehabilitate him.
Einstein was one who shared this view, and tells us why he found it attractive:
“In human freedom in the philosophical sense I am definitely a disbeliever. Everybody acts not only under external compulsion but also in accordance with inner necessity. Schopenhauer’s saying, that ‘a man can do as he will, but not will as he will,’ has been an inspiration to me since my youth up, and a continual consolation and unfailing well-spring of patience in the face of the hardships of life, my own and others’. This feeling mercifully mitigates the sense of responsibility which so easily becomes paralysing, and it prevents us from taking ourselves and other people too seriously…” (The World As I See It, 2.) (My emphasis.)
It was not an accident that Einstein went on to write one of the most lucid defenses of socialism ever published.
But this acceptance of determinism would not have been enough by itself to produce the concept of social ustice, without a second factor which has been even more influential, namely a negative view of the power of the market to improve the conditions of human life. Adam Smith argued already in 1776, in the very first chapter of his classic work, The Wealth of Nations, that the chief factor raising the standard of living of a society is its productivity, and that productivity grows in proportion to the division of labor, which in turn grows in proportion to the size of the market. The best remedy for poverty, he argued in effect, is what he called “the obvious and simple system of natural liberty,” the free or voluntary market, for this maximizes production across the society. The whole tendency of the science of economics has been to support that argument. But from the beginning, the proponents of social justice have not accepted it. They have distrusted both the science of economics and the market, and have thought that by imposing some coercion on the market, especially some coercive equality, they can increase its benefits for some group such as the working class, the poor or the disadvantaged. This view was carried to its furthest lengths in the communist systems of the twentieth century. Their collapse since 1989 has begun to raise doubts about socialism. But even the free nations of Europe imbibed the gospel of social justice deeply, and are currently engaged in a great and historic struggle over it. At the present time the government of France, presiding over 10% unemployment (20% among the young) produced by the gospel of fairness, is trying to convince its people of the benefits of the free market in creating jobs, but is facing revolt from its labor unions and its university students. In Germany, with unemployment even higher, at 12%, as a result of what they call the “social market,” or the social justice market, the new chancellor, Angela Merkel, likewise wished to take her country down the path of market freedom, but was not able to succeed in convincing her people, and has been forced into a coalition government with the Socialist party. Similar developments have taken place in Britain, Italy and Spain.
In the United States the problem of massive unemployment did not develop nationally until the Great Depression of the 1930s. The response of President Roosevelt, as we have just seen, was in accordance with the theory of ‘social justice,’ condemning the factory system and the employers. He has gone down in legend as the hero of the working classes, but the measures he introduced were directed more towards reducing societal inequality than to increasing employment. As a result of his failure to respond to the Depression in economic terms, it was prolonged unnecessarily for a decade, until the outbreak of the Second World War. (Subsequent research seems to indicate that the Depression was mainly brought about by two actions of government, in the U.S. the Smoot-Hawley Tariff Act and the action of the Federal Reserve in raising interest rates just when it ought to have lowered them.)
The concept of social justice took on added force with the Civil Rights Act of 1964. All together there have been some dozen civil rights acts, six of them passed before 1964. In the earlier pieces of legislation, the idea of civil rights was understood very differently. The term referred originally to what would be called today “liberties” or “freedoms,” such as the freedom to vote, the freedom to travel, to work, to marry, to make contracts and to give evidence in court. These liberties are what philosophers call “negative” rights, meaning that they do not confer a right to a positive performance by other persons. They are rights to be let alone, not to be impeded in their performance of an action. A positive right, by contrast, is a right to receive a performance from other persons. The “right to life, liberty and the pursuit of happiness” mentioned in the Declaration of Independence, despite its positive appearance, is a negative right because it is not a right to receive life when you don’t have it, but a right not to be killed.
To understand what happened in 1964 we need to distinguish between two different kinds of discrimination: coercive and non-coercive. Coercive discrimination is the use of force to discriminate. This is the proper meaning of the term “segregation.” That was what the Ku Klux Klan practised, and the governments of the Southern states, with their Black Codes and the Jim Crow laws. Non-coercive discrimination, by contrast, consists in refusing to do business in some way or to some extent with a member of a particular group. Coercive discrimination was always contrary to the traditional concept of justice. But non-coercive discrimination was not, for the same reason that boycotts were not. The basic principle was that a refusal to do business could not be construed as causing harm. In a free society everyone had the right not to do business with anyone else.
The original Civil Rights Movement, from the beginning of the NAACP in 1910, was aimed mainly at eliminating segregation and other forms of coercive discrimination, and that was the purpose of the first six Civil Rights Acts. But in 1964 something very significant happened. The concept of civil rights was expanded from the prohibition of coercive to non-coercive discrimination, or from the Ku Klux Klan and the Jim Crow laws to the peaceful actions of private individuals. Another way of saying this is that the original negative rights were transformed into positive ones. The effect of the 1964 law is to compel persons to do business with the members of certain groups, if they do business at all. Unlike the earlier civil rights laws, from the viewpoint of economics the new law was a form of protectionism. But from the viewpoint of the new theory of justice, it was fair and therefore just. You will be edified to learn, however, that the 1964 Act makes a special exception for discrimination against communists.
Something else happened in 1964. The civil rights movement of the 1960s, led by Martin Luther King, Jr., was concerned solely with the question of race, and this was also true of the first version of the Civil Rights bill. At that stage, the Civil Rights bill was thought of as a particular remedy for a particular problem in a particular country with a particular history. But a strange thing happened on the way to passage. The chairman of the House Rules Committee, one Howard Smith, was adamantly opposed to the bill, and determined to sink it. The cunning method he devised to do this was to add to the bill an amendment which prohibited discrimination on the ground of sex as well as race. His reasoning was that no one would vote for that. The amendment was indeed added, as a result of his influence, but he had reckoned without President Lyndon Johnson, who used the weight of his office to persuade Congress to pass the bill despite the added amendment.
Unlike with the question of race, there had been no large, popular movement in the United States to eliminate differential treatment of the sexes. In 1964 the feminist movement was still small. American society at large generally accepted that men and women had in many respects different desires and different needs, and that there was a natural division of labor between them. There was no political constituency for a law imposing gender equality. It is true that the Equal Pay Act had been enacted some months earlier, but the motive for that was very different: it was put forward by the labor unions in order to ward off “unfair competition” for men from women doing the same job at lower wages. The Civil Rights Act of 1964 had a different motive, was far broader in scope, and its consequences have been much more far-reaching.
By this accident of history discrimination as such was absolutised as an evil, and universalised. For once discrimination on the ground of sex was prohibited, every other form of discrimination became illegitimate in principle (except, of course, for affirmative action). And this condemnation of discrimination was soon exported to other countries around the globe. In remote New Zealand the law now prohibits discrimination on the grounds of sex, which includes pregnancy and childbirth, marital status, religious belief, ethical belief, colour, race, ethnic or national origin or citizenship, disability, age, political opinion, employment status, family status or sexual orientation.
In the course of discussing with my class at Temple University John Locke’s classic work, the Second Treatise of Government, which discusses crime, I asked what was the worst of all possible crimes. I expected to be told, genocide, or at least murder, or suchlike. But the first answer I received was ‘discrimination.’
Perhaps in the light of this someone may be inclined to respond that the question then is about discrimination, which is an action, after all, rather than about equality, which is a state of affairs. But to see that this is not so, but that the real question is about equality, you have only to consider the question of affirmative action. Affirmative action is clearly a form of discrimination. There can be no doubt about that whatever. But it is discrimination for the purpose of creating equality, and so from the viewpoint of social justice it is not only permissible but necessary. New Zealand law makes an explicit exception for affirmative action, which it terms a legitimate form of discrimination. This is why the proponents of social justice have condemned the moves to eliminate affirmative action as destructive of the very purpose of the civil rights law.
Is inequality inherently unjust?
Equality and inequality are not actions, but states of affairs. If justice consists in equality, and if inequality is inherently unjust, no matter how it came about, then the most fundamental conception of traditional ethics, the basis on which its entire structure is built, has to be abandoned. Ethics is then no longer primarily a matter of what is done, but of the way things are. States of affairs which are considered desirable are by that fact ethical and right, while states of affairs which are considered regrettable and undesirable are also ethically unjust. Individual actions may still be unjust, but this injustice is derivative from and subsidiary to the states of affairs to which they lead.
An example of this from our current legal system is the concept of ‘disparate impact.’ In 1971 the Supreme Court interpreted the 1964 Civil Rights Act to mean that in order to prove discrimination it was not necessary to show that discrimination was intentional, but only that an unequal state of affairs followed from some action. Thus in 1996 a certain Martha Sandoval sued the state of Alabama over a regulation that driving tests be conducted only in English. She could read enough English to cope with street signs but not enough to pass the written test. She sued on the grounds that the law inadvertently discriminated against her because of her national origin.
In traditional ethics there is a sharp distinction between coercion and other forms of influence on human behavior, but the theory of social justice tends to abandon this distinction as no longer useful. If all human behavior is ultimately predetermined, there is only a difference of degree, not of kind, between coercion and other forms of effective influence.
Ethics and Society
By the same token, ethics is now no longer primarily an affair of individuals, but of society. As John Rawls, the chief philosophical exponent of the new theory, puts it, the primary subject of justice is the basic structure of society. Instead of a strong concept of the individual, the new theory has a strong concept of society.
The Abandonment of Causation
In the traditional view, when harm has been done, the crucial question is who caused it. But in the new theory this is not necessarily the case. Instead, the question is how to relieve it. Let me give one actual case out of many. A woman in California tied up her dog outside a supermarket while she went in to shop. Another woman came up and left her baby in a baby stroller nearby while she did the same. The dog bit the baby. Now once upon a time the baby’s mother might have been held responsible. But in this case the baby’s mother herself sued. Whom did she sue? The supermarket, which, by some strange coincidence, alone had the money to pay the desired damages. And she won! This is known as the ‘deep pockets’ theory of liability. A bank robber, hurrying off with his loot, stepped on a glass skylight and fell through. He sued the bank, and won.
Praise and Blame
In the traditional theory, individuals, provided they are adult, sane and conscious, are responsible for their actions. It follows from this that there is such a thing as innocence, and there is such a thing as guilt, and these deserve praise on the one hand, and blame on the other. Those who have done good deserve recognition and reward, and those who have deliberately injured others deserve condemnation and punishment. In the new theory, however, things are very different. There is, strictly speaking, no room for individual responsibility, since injustice consists in the mere fact of poverty or inequality, without regard for how it came about. The poor cannot be held responsible for their poverty, for that would be to ‘blame the victim.’ If the wealthy or powerful are sometimes described as ‘responsible’ for their actions, such as discrimination, this is only in a weak or relative sense, for ultimately their actions too are predetermined by their place in the societal structure.
From the fact that we do not deserve our natural endowments, John Rawls concludes that we do not deserve anything we gain by using them. This applies even to our moral character, for a person’s ‘character depends in large part on fortunate family and social circumstances for which he can claim no credit.’ If an institution explicitly promises us something on condition that we fulfill some requirement, and if we fulfill the requirement, then can we be said to have a ‘legitimate expectation’ of receiving what is promised, and in this sense, and only in this sense, to ‘deserve’ it. If you enter a race where it has been announced that the first past the post wins the prize, and if you are the first past the post, then you ‘deserve’ the prize. But if a person does not deserve his good character, he also does not deserve his bad one. From which it must follow that a murderer does not deserve punishment unless there is some law which has threatened him with punishment antecedently. And this is in fact now the view of many criminologists. Outside of institutions and their promises, ‘social justice’ allows no room for desert.
Interior and Exterior
In traditional ethics, as we have noted, one’s interior intention plays a key role, since it can decide whether an action is just or unjust. The interior dimension of the ethical life is its most crucial dimension. In the Christian moral tradition, ethics is a question about the state of our soul. But in the theory of social justice, since poverty or equality are external facts in relation to the individual, our soul is irrelevant.
Social justice raises a question about our inner identity. One of the great achievements of Western civilization has been the discovery of the individual. This happened especially during the Middle Ages, when people became conscious of the depth of the interior emotional life, beginning with St. Augustine’s Confessions, which created the literary form of the autobiography. This interior individuality we possess is fashioned by our choices, by our freedom. We live in a dialogue with ourselves, in which the demands of justice play a basic role. But from the viewpoint of social justice, what counts is not our individuality, what we choose to do as individuals, or what is done to us: what counts is the group we belong to. Justice means “getting ours” as a group. The effect of the focus on social justice is to dry up the deepest sources of the interior life.
On the traditional view, the concepts of justice and injustice apply only to human or rational beings, since only they have free will and a conscience. Rights go together with duties, and only a being that is capable of having duties can have rights. But in the new theory animals have rights even though they do not have duties, because the concept of equality can be applied to them. Thus Peter Singer argues that the suffering of animals should be counted equally with that of human beings. In the traditional view, causing unnecessary pain to animals was considered, not an injustice, but a form of inhumanity.
The new theory of justice has had consequences for almost every area of human existence, including some you might not immediately expect. I will just mention one or two. Consider the question of standards. Traditionally civilization was understood to consist in observing certain standards of behavior, and the purpose of education lay in introducing these standards to the young. In any field, writing novels or building bridges, excellence means the pursuit of high standards. But from the viewpoint of social justice, the whole idea of standards is distasteful because they are inherently discriminatory. Consequently the purpose of education has been largely changed, towards things that are not discriminatory, such as fostering self-esteem and diversity. This is why we have had such things as “social promotion” in the schools. Not long ago I had a conversation with a teacher of history in the Philadelphia public school system. I asked him what he taught. He replied he did not believe there was any single fact of history that it was important for everyone to know, and so he taught not content but method.
A related question concerns institutions. Traditionally, human beings have founded all kinds of associations and other institutions to achieve a great variety of common purposes, and each kind of institution exists to achieve its own purposes. The university, for example, exists to hand on the knowledge society has gained; the police force exists to enforce the law, the Christian church exists for the salvation of souls, and so on. But once inequality has been declared unjust, every kind of institution acquires a new, additional purpose, that of creating equality. All institutions are converted into welfare programs. The purpose of universities is no longer simply to pass on knowledge, but to create equality, and so there must be different admission standards for different groups of students, and different hiring standards for different groups of faculty. The purpose of the police force is not only to enforce the law but also to implement equality, and so there must be different tests for different groups of applicants; the church no longer exists merely to save souls, but to embody equality here and now, and so its ancient traditions must be abandoned for newer, more inclusive customs. Why has the Episcopal Church been split over the question of the ordination of a practising homosexual as bishop? This dispute has not arisen out of any inherent tensions within the Christian tradition, but out of the Civil Rights law of 1964 and the belief that all discrimination is unjust.
A Choice To Make
As citizens with the right to have an opinion on these questions, and to vote for or against those who decide them, we are faced with a choice. Which theory of justice should we choose?
But before we ask this question, we must ask whether it is necessary to choose between them. Is it not possible to have both, side by side? Could we not, for example, acknowledge both unjust actions, such as theft, and also unjust states of affairs, such as inequality? Since the Civil Rights law of 1964 this is what the legal system in the United States has attempted.
But alas the two theories are essentially incompatible. The differences between them are not superficial but go right to their foundations. On their fundamental principles, as we have seen, each contradicts the other.
As Friedrich Hayek remarks: ‘It seems to be widely believed that ‘social justice’ is just a new moral value which we must add to those that were recognized in the past, and that it can be fitted within the existing framework of moral rules. What is not sufficiently recognized is that in order to give this phrase meaning a complete change of the whole character of the social order will have to be effected.’ He concludes: ‘The prevailing belief in ‘social justice’ is at present probably the gravest threat to most other values of a free civilization.’
Where the traditional theory focuses on benefit versus harm, the new theory asks only about equality. But equality, especially enforced equality, is by no means always beneficial, but can cause a great deal of harm; for to create equality you usually have to injure some in order to benefit others. The attempt to hold both theories together at the same time places our legal system in a state of incoherence, where a judgment based on the one set of principles contradicts the other set of principles. This is particularly clear in cases of liability, although the tension runs through our whole legal system.
While the judgement about the supermarket was in accord with the new theory, from the viewpoint of the traditional theory it was nothing short of an outrage. The last thirty years have seen exceedingly many cases of this sort. If we wish to avoid incoherence, as a society we cannot evade making a choice between these theories. But which theory is followed in the courts depends on who the judges are, especially the members of the Supreme Court, and so a great deal now hinges on the appointments to the courts made by the President. Until a few weeks ago, Supreme Court justices who had little in the way of theoretical convictions were swing votes, siding now with one view, now with the other, not on the basis of general principles anyone could easily discover, so much as, one could be pardoned for believing, on the basis of their personal inclinations. This led to a situation where for many commentators presidential elections have been of interest chiefly because they would decide what judges got appointed. Now this decision has been made: with the appointment of Chief Justice John Roberts and Justice Samuel Alito, the make-up of the court appears to have changed dramatically — at least until such time as another justice retires and another president is elected!
The fact is that the two theories of justice are essentially incompatible, and we must choose between them. The main grounds for supporting the theory of social justice have been mentioned earlier: the problem of free will on the one hand with its attendant difficulties for the notion of personal responsibility, and on the other the political desirability of eliminating certain forms of discrimination. Neither of these grounds, however, is as solid as the theory requires. There are serious arguments against both of them, which I would be happy to give in the discussion.
An important feature of equality is its conceptual vagueness, which means in practice, its insatiability. Injustice as understood traditionally, the causing of undeserved harm, can usually be measured objectively, and so can be remedied objectively. A thief has stolen a certain number of dollars, or a murderer has taken a life. But ‘inequality’ has no such definite limits: it is systematically ambiguous, for in principle it can mean very different things. It can mean inequality of income, or of assets, or of opportunity, or of power, or inequality before the law. It can mean economic inequality or social, i.e. class-based, inequality. No one of these meanings constitutes inequality as such. Consequently the demand for “equality” can never be satisfied. If a society should happen to succeed in achieving “equality” in one area, it will necessarily and inevitably be marked by inequality in other areas.
If these considerations carry weight, then societal equality is not a good candidate for the throne of justice. However, this does not mean that the cause of equality in some valuable sense is entirely lost. For the end of equality-by-legislation does not necessarily imply the end of de facto equality. The America in 1831 was most strikingly, he said, a society characterized by equality of conditions, and this equality made it in his eyes the society of the future. That equality was not imposed from above in the name of ‘social justice,’ but arose voluntarily from below, in the relationships and attitudes that Americans freely adopted towards one another, the natural expression of a sturdy sense of independence. This voluntary equality from below is a permanent possibility of human existence, and it is what (in my opinion) we should be striving for. that de Tocqueville experienced
During the twentieth century Western society suffered a precipitous decline in the sense of individual responsibility. I have tried in this lecture to indicate what there is every reason to believe is the main cause of that decline, namely the widespread adoption of a new conception of justice, as fairness in society, in place of the traditional one which emphasized, in the words of Roman law, doing no harm and giving to people what belongs to them. You may ask, can we regain the traditional sense, which held every adult sane individual responsible for his actions? I believe we can. The decline, as I see it, is the result of certain definite laws our government, including our Supreme Court, has adopted, beginning in the 1930s and reaching a peak in the 60s and 70s, laws that were influenced by socialist values deriving from the prestige of the socialist ideal especially among the intellectual classes. I believe these laws can be reversed. One reason for believing they can be reversed is that they run counter to the requirements of a sound, strong economy which can compete on the world’s stage. Another is that with the collapse of international communism the prestige of socialist ideas is no longer what it was. A third is the simple sense of justice. I believe a good start has been made since the beginning of this very year with the new appointments to the Supreme Court. An important step would be to return to the original concept of civil rights as liberties. If enough of us are willing to lend our voices to support the measures that must be taken in Congress and the courts, I believe our society is capable of getting back to its roots, and regaining the health and strength which first made it great.
Sovereignty (London, 1957), p. 140.
Law, Legislation and Liberty, Vol. 2, The Mirage of Social Justice (Chicago, 1976), p. 63f.
A Theory of Justice, # 17, p. 104.
Op.cit. p. 67.
See Peter Huber, Liability: the Legal Revolution and its Consequences, Basic Books, 1990.
As traditionally understood from time immemorial, justice and injustice possess four distinguishing features, which follow from the simple fact that they are conceptions of ethics.
First, justice and injustice are primarily qualities, not of states of affairs in society, but of the actions of individuals (“action” is taken as a technical term here standing for a range of related phenomena, including such things as wilful inaction, negligence, weakness of will, and so forth, for which an individual can be held directly accountable). Justice is a quality of states of affairs only in so far as those states are the product of actions. A state of affairs can be good or bad, but it cannot of itself be either ethical or unethical. Only persons and their actions can be unethical. To speak of a state of affairs as unethical, independently of any unethical action that produced it, is to commit a fallacy. If I have $100 in my pocket, that fact of itself has no significance for ethics. It acquires ethical significance only from the action that placed it there; for example, if I took it from your pocket. Then and only then can we speak of it as unethical and unjust.
But when it is said, as “social justice” insists on saying, that poverty or inequality of power, which are incontestably states of affairs and not actions, are unjust, it seems to be committing precisely that fallacy, of predicating an ethical quality of a matter that cannot possibly be ethical. Poverty of itself is neither moral nor immoral, and neither is wealth. It is true that poverty often results from human actions. But in the ordinary course of events it is not a result that is intended. It is true that the at least temporary poverty of one group in society can be caused by another group’s selfish pursuit of its own interests. When consumers refuse to buy products that are more expensive and at the same time of lower quality, and instead buy those that are cheaper and of better quality, this may well deprive the producers of the former of their livelihood. But is this unjust? This question leads us to the next point.
Second, justice and injustice hinge crucially on the will. Human action is never merely an objective, external or physical event, but is always accompanied by a subjective, internal or mental causal force which we call will, and the moral value of the action depends on the moral quality of that will. As Kant observes, the first requisite for an action to possess moral value is that it be done with a good will. Similarly with justice. There can be no true injustice unless the subjective will of the agent (if only through negligence or culpable inaction) makes it unjust. For this reason, as we shall see, Kant initially defines justice as a relationship between wills.
Now ordinary justice always includes a reference to this interior will. The necessity of an evil will for an action to be evil is captured by the Common law in the concept of mens rea. But “social justice” has no reference to the will, and has no equivalent to mens rea. What counts for it is purely the objective and material condition of poverty or inequality. As the U. S. Supreme Court has demonstrated with the concept of “disparate impact,” it is possible to be guilty of the crime of “discrimination” without any intention to discriminate. The absence of this reference to the will removes “social justice” from the realm of ethics.
Third, justice and injustice necessarily entail individual accountability and responsibility. This follows from the two preceding points. If there has been an injustice, this was because some individual performed some unjust action, and performed it knowingly and willingly. And whoever has performed an unjust action knowingly and willingly is personally the cause of the harm his action has done. He is responsible for it, which means he can and must be held accountable for it. Not only can but must, for if he is not held accountable, justice is not done.
From this fact of individual responsibility flows the possibility of individual desert, of innocence and guilt, of praise and blame, and reward and punishment, all of which are directly associated with the ordinary concept of justice.
While ordinary justice rests in this way on personal responsibility and accountability, however, “social justice” does not, but rather replaces the responsibility of the individual with the responsibility of society. As remarked above, “social justice” is a demand addressed to society as a whole and not to the individual; and as such it is a demand that can be met only by the state. This transference of responsibility, however, has two extremely serious effects. For one, it eliminates the possibility of individual desert, innocence and guilt, praise and blame, and reward and punishment. This is a step with incalculable consequences for society.
For another, it condemns the individual to helplessness. If only society has the responsibility to remedy poverty, the individual who suffers from it has no responsibility to do so. This is a message of dependency and despair. Hope arises in an individual heart in a difficult situation because he sees he has the possibility of taking action against it. Supporters of “social justice” condemn ordinary justice because it places the burden of responsibility for removing poverty on the shoulders of the poor themselves. But this burden of responsibility is necessary — though admittedly not yet by itself sufficient — for creating hope, since hope involves the belief that I am free to act on my own behalf.
Fourth, justice and injustice presuppose that individuals possess freedom of will. This follows of itself from the three preceding points. If action, will and responsibility are key elements of justice, this can only be so on condition that the will is free. For a will that was predetermined by extraneous forces might indeed perform an action (though it would not be what we would be disposed to call a human action); and could also indeed be held extrinsically accountable by authority for harm that it caused, in the way we hold an animal accountable, but it could not possibly be a source of moral value, and could not be genuinely and interiorly responsible for its actions, unless it were free. Moral value belongs only to a free will.
Now the ordinary conception of justice is built upon this respect for a free will, and all sorts of allowances are made in its courts of law for the various degrees in which it may be thought that the freedom of the will of the agent was limited or restricted in some way. But “social justice” does not require any doctrine of free will. For the concepts of poverty or inequality in society do not entail any such belief.
These four qualities we have here outlined are necessary features of any genuine conception of justice, and they are features of the conceptions of justice developed both by Aristotle and Kant, but not of “social justice”. Kant’s doctrine of the categorical imperative as the criterion of ethical judgement in general exemplifies in model fashion the four qualities we have just described. The same is true of his specific conception of justice as the quality of an action in virtue of which it does not infringe upon the free will of others. We are not, therefore, merely arguing that ordinary justice and social justice are different, but that they are in conflict with one another, and that of the two only ordinary justice is genuine justice. Social justice is not justice at all.
“No guilt without a guilty mind.” “Reum non facit nisi mens rea.” Leges Henrici, 5, # 28. The statement was taken from St. Augustine, Sermon 180, c. 2; Migne, Patrology vol. 38, col. 974.