PRINCIPLES FOR A FREE SOCIETY JUSTICE

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?
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