Principles for a Free Socieity JUSTICE

[William M. Finley]

Principles for a Free Society JUSTICE

By Nigel Ashford

Justice

Justice is “to live honestly, to injure no one, and to yield to each their own.”

Greek philosopher Ulpian

What is justice?

Justice is about the rules that distribute rewards and punishments, that

each person should be given their due. This covers not only material

goods, but also anything that can be distributed, such as freedom and

rights. Justice is not to be confused, as it often is, with the morally good

or right. Someone may behave in a manner that others might consider

immoral but would not be claimed as unjust. Norman Barry gives the

example of polygamy- consensual marriage with several wives or husbands-

where the language of justice is inappropriate. The crucial distinction

is that justice is about rules and how they are implemented.

Two questions arise from the concept of justice: What is due to someone,

or what are the appropriate rewards and punishments to that person,

the principles of distribution? And which principles are appropriate

for which good? The rules may be very different if we are discussing the

distribution of wealth or of love or of punishment. Traditionally justice

has been procedural: about the protection of people’s freedom and how

to punish those who fail to respect the freedom of others.

Justice as historically understood is currently threatened from two

directions. The first attack come from judicial activism, when judicial

decisions simply reflect the preferences and prejudices of the judges,

their personal view of what is right or wrong. This is the rule of men,

not of laws. The second attack comes from the attempt to redistribute

income and wealth on the basis of the vague, but superficially attractive,

principle of ‘social justice,’ which is concerned with ‘who has

what’ rather than how they obtained it. While justice has been concerned

with issues such as freedom, order and laws, the new approach

is concerned with material redistribution. Whether someone has

earned their income and wealth through just means, such as hard

work, is irrelevant to social justice.

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Philosophers on justice

Plato and Aristotle were absorbed by the issue of justice, which they

considered central to a good society. Plato defined justice as “to render

to each their due.” For them justice was tied to establishing the worth of

human beings. Not surprisingly as an intellectual Plato believed that

worth was associated with intellect, which led him to favour rule by the

wisest, the philosophical guardians. Since then it has been the constant

refrain of intellectuals that they do not receive the respect and power

which they deserve. Judicial activism is but one of the contemporary

manifestations of the claim that intellect provides the best basis on

which to judge what is just.

That justice is about rules is exemplified by the refusal of Socrates to

allow a vote in the forum in Athens on whether to execute generals who

had failed to rescue shipwreck survivors. His grounds were that any man

could not be condemned and punished until after a fair trial. Only after

evidence for the accusation had been presented and the opportunity for

defence of their actions could their worth be assessed. The Roman

Emperor Justinian, who drew up one of the earliest legal codes, defined

justice as to “give each man his due.” In the Middle Ages justice was

seen as the greatest of political virtues as societies would be peaceful and

prosperous if their rulers were just.

The Scottish Enlightenment focused on discovering and articulating

the rules of justice with respecting people’s rights. John Locke identified

justice with the protection of life, liberty and property. David Hume

believed that one could only survive and prosper in cooperation with

others. The problem was how to avoid, or at least minimise, conflict

with others. That led to the necessity for establishing clear and respected

rules that all would follow because they accepted them as just. Hume’s

rules of justice for property were: the peaceful acquisition of property,

transfer by consent, and the performance of promises. Justice was

demonstrated by showing respect for the freedom and property of others.

Adam Smith noted that “Mere justice is, upon most occasions but a

negative virtue, and only hinders us from hurting our neighbours.” We

act justly when we do no harm to others. Injustice occurs when we harm

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others. The failure to respect the rights of others, through acts such as

violence or robbery, could justify the legitimate use of force, such as

imprisonment or fines, by government in order to achieve justice.

Justice as rules

Justice is most frequently used in the context of the legal system, which

is concerned to apportion punishments and rewards as the result of

wrong doing, viewed as the breaking of justice, and to allocate compensation

for injury or damage. The judiciary is said to be concerned with

the administration of justice. The law itself is not necessarily just. Laws

can be criticised as being unjust, as not treating people fairly. Campaigns

to change the law are frequently based on the grounds that current laws

are unjust. The justice system is concerned with identifying and applying

widely accepted procedural rules. These rules are identified under

the rule of law. The judicial system has the power to treat people in ways

that would in other circumstances be considered unjust; for example,

denying them their freedom by putting them in prison or taking money

from them in the form of fines. Because of the dangers inherent in such

powers, the process itself must follow strict rules. One example is judicial

neutrality, that judges should not be biased or partial to one side of

the other in a case.

Procedural justice is concerned with respecting rules. It is about how

decisions are made, not the fairness of the content. A fair outcome is

one which arises from following the rules. In a sports race the result is

fair, provided certain rules are followed, such as everyone runs the same

distance, is given the same time and the officials (or judges) are impartial.

That one runner wins the race this week and a different runner another

week, or that the same runner wins every week, is not grounds for

claims of injustice.

Judicial activism

Judicial activism as a threat to justice occurs when judges look to their

view of what is just, rather than refer to the written rules in constitutions

or legislation, or to widely accepted rules of natural justice (see the

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rule of law). Supporters of judicial activism believe that the role of

judges is ‘to do right.’ They measure decisions in terms of the consequences

rather than the method by which they are arrived at. There is

concern that judges, from the lowest courts in Europe up to the

European Court of Justice of the EU, are following this approach. It is a

threat to justice because it undermines the rules of justice as commonly

understood. It reduces the predictability of how courts will decide any

conflicts. Justices who base their decisions on judicial activism are

imposing their own values, preferences and prejudices, abusing their

power and lack of accountability. The trust and confidence of the people

that courts provide justice will be severely and dangerously undermined.

Entitlement theory of justice

The most rigorous attempt to apply the rules of justice to the distribution

of income and wealth was made by the Harvard philosopher Robert

Nozick in his book Anarchy, State and Utopia. He wrote a devastating

critique of theories of social justice. He provided a modern version of the

traditional view, which he called ‘the entitlement theory of justice.’ He

claimed that the distribution of property is just if it arose from the fair

acquisition and transfer of property involving neither force or fraud. If no

rights have been denied, justice is served. Thus there is no moral justification

for the extensive redistribution of income and wealth, provided it

has been fairly obtained. You are entitled to that which you have produced

or obtained voluntarily. A true ‘socially just’ society could involve

any number of property distributions because the crucial question is how

the distribution arose, whether rights were respected or not. It is a procedural

theory, based on our historical understanding of justice.

Thus a society with a large gap between the richest and the poorest

could be just. So could a society with almost no difference between the

richest and the poorest. Information about the distribution of wealth

and income tells us nothing about the justice of that society. We need to

know how that distribution came about. The society with a great gap

could be just if the richest obtained their wealth by providing the goods

that the poor willingly purchased. The latter could be unjust if the comparative

equality was achieved by some stealing from others.

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Nozick identifies two additions to his clear and simple principle of

voluntary acquisition. First is the principle of rectification, the correction

of past injustices. For example, property should be returned to

those from whom it was stolen, and those who inflicted damage should

compensate those whose property was damaged. The goal is the restoration

of the situation before the rights were abused, the status quo ante.

Secondly, he accepted the Lockean proviso, named after John Locke,

that the acquisition of property should not deprive someone of something

which is essential to life, such as water in a desert. With these

exceptions, any distribution is potentially just.

What is social justice?

As Thomas Sowell has stated, all justice is ‘social’ in the sense that it

involves interaction between more than one person. However the

demand for social justice makes a much stronger claim. Indeed Sowell

argues it is ‘anti-social’ justice because it ignores the costs to society of

accepting the demands. Social (or ‘distributive’) justice, as used politically,

implies that there is only one morally justified distribution of material

goods, and that it does not exist in the current society. Therefore it is justifiable

for the state to redistribute income and wealth from those who

have it to favoured groups to achieve that moral distribution. It is

claimed that the distribution arising from the market of freely chosen

exchanges is immoral, which is contradicted by the entitlement theory of

justice. Social justice is now a popular slogan in politics because it would

give power to the state and those who control it to decide who had what.

The alternative principles on which wealth would be distributed are

rarely clearly expressed. ‘Social justice’ is more a slogan to increase dissatisfaction

and obtain power than an appraisal of how it could be achieved.

Social justice as a mirage

Friedrich Hayek dismissed the whole concept of social justice as a mirage,

intentionally designed to evade and mislead. He reached the conclusion

that, within a free society, the phrase ‘social justice’ has no meaning

whatsoever. When men are allowed to freely exchange, then the consequent

distribution is the result of a process of freedom, and not created

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by the intentions of anyone. The first problem with the idea is that justice

applies to human conduct and only human actions can be just or

unjust. However the distribution of rewards in a free society is not the

result of anyone’s intentions but of millions of decisions taken every day

by millions of people. Who is supposed to have acted unjustly to obtain

the so-called unjust distribution? Secondly, as there is no agreement as to

what is a just distribution, applying the principle of social justice would

require everyone contributing to a redistribution of wealth reflecting

someone else’s values, the opposite of freedom. To achieve one person’s

view of social justice would be to create a distribution others would perceive

as unjust. Most people would be dissatisfied with any particular

enforced distribution. A third problem is that society is so complex and

in constant flux that it is impossible to create and retain any particular

distribution. As in a game, it is impossible to play to a predetermined

outcome. Fourthly, redistribution damages prosperity because everyone

would seek to maximise their income by satisfying whatever the imposed

criteria for receiving income would be instead of seeking to satisfy the

demands of consumers. Fifthly, redistribution will reflect the political

power of those sectional interests which are able to influence the decision

makers into accepting that they deserve more. It would be political

power that would be decisive, and government would become the source

of wealth.

Social justice as totalitarian

Nozick condemned social justice as a totalitarian principle because it

assumed that wealth was a common property, which the state could

freely distribute as it wishes. No recognition was given that people have

a claim upon that which they have produced. It assumes collective

ownership. It divorces production from distribution. What gives the

state the right to control the product of free individuals? It treats us as

social instruments who exist to satisfy the demands of the state. This is a

denial of Kant’s principle of the categorical imperative: that people

should be treated as ends in themselves and not solely as a means to the

achievement of the goals of others. It is this principle which bans slavery.

Social justice thus has totalitarian implications because it implies that we

are all slaves of the state.

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Contradictory principles

Advocates of social justice are usually vague as to what it means. They

hope their listeners will assume that it is their particular view of ‘who

should have what’ which is meant, even though that is incompatible

with the conception of the other members of the audience. When forced

to explain the principle, defenders have preached three contradictory

and inconsistent principles: equality (see equality), needs and merit.

They are all unjust.

Social justice as equality?

Egalitarians believe that the only moral distribution is equality of income

and wealth. While they are rarely so explicit, their presentation of

unequal distribution as evidence of injustice implies precisely that any

disparities in income is due to injustice. They assume that equality is the

natural condition and any deviation from it must be explained and justified.

The reality of course is that inequality is natural, and it is movement

towards equality which must be justified. The case against equal

outcomes is examined under equality. Note however that the condition

of equal outcomes is manifestly unjust, because it takes no account of

effort or production or the satisfaction of the wants of others. It would

mean equal rewards to everyone however lazy or feckless they behaved.

Many egalitarians proclaim that they do not mean total equality, only

more equality but how much equality is necessary to satisfy their view of

justice? How did they conclude that their degree of equality was the only

one that meets the standard of justice when other egalitarians will have a

totally different standard?

Social justice as needs?

A second school argues that wealth should be determined on the basis of

need. A need is a necessity, without which one cannot live. It is much

more than wants or desires. Someone in need lacks something essential

for survival, such as food, clothing or shelter. These are considered so

important they are viewed as an entitlement, not just desirable. Needs

would thus have priority over wants. The basic needs of everyone should

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be satisfied first, before the wants of others. The logic of a philosophy of

needs is global redistribution, that wealth should be forcibly taken from

prosperous people in richer countries to poor people in poorer countries.

The needs principle would require taking from the vast majority in richer

countries, including those who consider themselves poor but do not

lack basic needs. No one would be allowed to improve their home, buy

fashionable clothes, go to a movie, or buy a compact disc, as long as

someone somewhere in the world is starving. By this logic, no one

should be allowed to buy the books written by the advocates of the

needs principle but their money should be given to those in need. Those

advocates would have to refuse offers to travel in the world to promote

their ideas while the needs of others were unsatisfied. The fact that they

do not apply their own principle to themselves should say something

about its flaws.

There are several problems with the standard of needs. Firstly, it is

impossible to agree on a definition of needs. Are they objective or

subjective? Indeed needs are continually redefined so that it will never be

possible to achieve the satisfaction of needs. Secondly, it ignores historical

context. What is considered a need varies considerably within societies,

between societies, and in different historical periods. Thirdly, the

existence of a need does not by itself create an obligation on others to

satisfy that need. Take the example of someone who needs a kidney in

order to survive. While someone may be willing to voluntarily surrender

one of their two kidneys to save another person’s life, it would be considered

unjust if someone was forced to surrender a kidney to another.

Our obligations to others vary considerably depending on whether the

other is family, friends, neighbours, fellow citizens or total strangers.

Social justice as merit?

This is based on the idea that people should receive what they deserve

or merit. This has a superficial similarity to the idea that people should

get what is their due. This is based on the belief that action, efforts,

skills, deeds, results justify the economic worth of a person. It can be

disappointing when we see someone who has worked hard fail in her

business, or someone we personally dislike being successful. However the

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idea that effort should be rewarded rather than that which is produced is

absurd. That would mean that someone who digs a hole and then refills

it with great effort should receive more money than someone who produces

something valuable but with little effort. It is desirable that things

are produced with minimum cost and effort; that is efficiency and maximises

wealth. The merit principle is thus a dangerous belief and a threat

to prosperity. It is close to Marx’s false labour theory of value.

Friedrich Hayek stated that ‘value to society’ is not the basis for justice.

Firstly, it assumes that society has a common purpose and everyone can

be measured by the degree to which they contribute to that common

goal. But society is made up of individuals with a wide variety of different

goals. Secondly, there is no agreement on what is the value to society

of every job or occupation. Should a nurse get more that a soldier, a

butcher more that a teacher? Members of society will value the same

action or service very differently. There is no objective standard of value,

as value is purely subjective. A service can only have value to a particular

person. Thirdly, much of what is desired is the result of natural ability or

characteristics, not effort or moral worth. Someone may be born with a

fine voice or great looks that others appreciate. This tells us nothing

about the moral character of the singer or actor. A society based on

merit would make no provision for the demand for their services. The

worth of a good is not related to the quality of the supplier. Fourthly, it

would give tremendous power to those who would decide who deserved

what. What they conceive of as meritorious would be rewarded, and

other views ignored.

According to Hayek, “It is neither desirable nor practicable that material

rewards should be made generally to correspond to what men recognise

as merit and that it is an essential characteristic of a free society that an

individual’s position should not necessarily depend on the views that his

fellows hold about the merit he has acquired.”

Desert or merit is an important factor in determining value, probably

the most important. Those who work harder or more productively, who

sacrifice to achieve a good education, are usually rewarded. But intelligence,

looks and luck, unconnected with moral worth, are also factors.

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Their role is impossible to measure. As Herbert Spencer, one of the

founders of modern sociology, noted, supply and demand determines

value in a free society, but no individual or group determines that value.

The market place does through the millions of decisions taken by consumers,

workers and employers every day.

Social justice as rights?

If there is such as thing as social justice, then it must be based on rights.

As Nozick argued, justice is historical, based on how particular individuals

obtained their wealth. Justice cannot be concerned with the end state

or patterned distribution that is the goal of theories of social justice.

Thus the theory of justice that applies to material distribution is based

on the same principles as justice elsewhere. It is about following fair

rules. It is a procedural theory of justice that allow individuals to pursue

their own wants and needs as they understand them, provided that they

show the same respect for the rights of others.

Defending justice

The Greek philosophers were right to believe that justice was the foundation

of a good society. It is therefore understandable that collectivists

of all parties should seek to use the language of justice to promote their

own desire for power and redistribution. Demands for social justice are a

grave threat to true justice and a free society and must be firmly resisted.

A commitment to justice requires a rejection of the idea of social justice.

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Reading

Norman Barry, An Introduction to Modern Political Theory, London,

Macmillan, 2000, chapter 6.

Friedrich Hayek, Law, Legislation and Liberty, Volume 2, The Mirage

of Social Justice, London, Routledge, 1976, chapters 8, 9.

David Hume, A Treatise of Human Nature, Oxford, Clarendon Press,

1972 (1740).

J. R. Lucas, Democracy and Participation, Harmondsworth, Penguin,

1976, chapter 7.

Robert Nozick, Anarchy, State and Utopia, Oxford, Blackwell, 1974,

chapter 7.

Adam Smith, A Theory of Moral Sentiments, Indianapolis, Liberty

Press, 1976 (1759), Part II.

Thomas Sowell, The Quest for Cosmic Justice, New York, Free Press,

1999.

Questions for thought

1. How just is your society?

2. Is the distribution of income and wealth in your society just?

3. Should wealth be redistributed from richer countries to poorer

ones?