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