Chapter 8

Visions of Justice

Adam Smith and John Rawls each made justice the prime virtue of a society, but they said it in such different senses as to mean nearly opposite things. Moreover, the differences between them were not due simply to their very different conceptions of what constituted justice – a process in Smith, a result in Rawls – but more fundamentally were due to how they wanted the principle of justice applied. According to Rawls:

Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice ... does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many. ... The only thing that permits us to acquiesce in an erroneous theory is the lack of a better one; analogously, an injustice is tolerable only when it is necessary to avoid an even greater injustice. Being first virtues of human activities, truth and justice are uncompromising.1

Rawlsian justice is not to be traded off, even for the existence of an otherwise well-run society. Others with a similar vision speak of rights based on justice as “trumps” which invariably prevail over other social considerations.2 There are different values of trumps, so that one must give way to another, but all trumps prevail over all non-trumps. The “superior claims of justice” have been part of the unconstrained vision as far back as William Godwin.3 Those with this vision may differ among themselves as to the specifics of justice, as there are differences within the tradition of the constrained vision as well, and they differ especially as to the extent to which government is the instrumentality of enforcing these moral principles.4 But what is consistent in the unconstrained vision is that (1) justice is categorically paramount and that (2) rights derived from justice inhere in individuals and for individuals.

A very different view of justice is found in the constrained vision of Adam Smith, who said, “society cannot subsist unless the laws of justice are tolerably observed.”5 He said:

Society may subsist, though not in the most comfortable state, without beneficence; but the prevalence of injustice must utterly destroy it.6

Justice thus derived its importance from the need to preserve society – not society its raison d'être from the need to produce justice. Moreover, justice need only be “tolerably observed” to serve its social function of maintaining order, and that overriding need for social order was due to the limitations of man. According to Smith:

Men, though naturally sympathetic, feel so little for another, with whom they have no particular connection, in comparison to what they feel for themselves; the misery of one, who is merely their fellow-creature, is of so little importance to them in comparison even of a small convenience of their own; they have it so much in their power to hurt him, and may have so many temptations to do so, that if this principle [justice] did not stand up within them and overawe them into a respect for his innocence, they would, like wild beasts, be at all times ready to fly upon him; and a man would enter an assembly of men as he enters a den of lions.7

Here the elements of Smith's constrained vision stand out in stark contrast to those of the unconstrained vision. While man, as conceived by Smith, had natural sympathy – that was the cornerstone of the moral code elaborated in his Theory of Moral Sentiments – this sympathy and man's reason serve to provide mankind with general principles for society, rather than with direct restraints on individual behavior. Where derived and refined principles of justice serve as an individual restraint, it is not because of sympathy and reason but because the social inculcation of justice serves to “overawe” the individual.

Because society “cannot subsist among those who are at all times ready to hurt and injure one another”8 justice is – instrumentally – society's prime virtue.

The instrumental nature of justice, and its consequent subordination at times to other social imperatives, is a recurring theme in the constrained vision – and is anathema to the unconstrained vision. Implicit in this subordination of justice to order in the constrained vision is the conclusion that man will suffer more by the breakdown of order – even an unjust order – than by some injustices. Those with the constrained vision accept this trade-off because the inherent limitations of man, as they conceive man, leave no solution to hope for. In this vision of incremental trade-offs, the categorical concept of “trumps” is completely inapplicable.

LEGAL JUSTICE

The Constrained Vision

Oliver Wendell Holmes illustrated the way in which the inherent limitations of human beings were central to the concept of legal justice, as seen in the constrained vision:

The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. It does not attempt to see men as God sees them. ... If, for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of heaven but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account.9

Holmes thus established two standards of justice – and deliberately chose the lower standard as the proper one for human beings to administer, given the inherent limitations of man. It was a conscious trade-off of justice for the interest of the society as a whole. Holmes said, “justice to the individual is rightly outweighed by the larger interests on the other side of the scales.”10 He opposed “confounding morality with law.”11 Law existed to preserve society. Criminal justice, for example, was primarily concerned with deterring crime, not with finely adjusting punishments to the individual:

Public policy sacrifices the individual to the general good. It is desirable that the burden of all should be equal, but it is still more desirable to put an end to robbery and murder.12

Once again, Holmes rejected the higher standard of justice – the “desirable” tailoring of punishment to the individual – in favor of the lower standard of justice. Implicit in putting aside the solution in favor of the trade-off was the assumption that the solution was beyond human capability – a point already made explicitly in his discussion of civil liability, where the courts of men were said to have to operate differently from the courts of heaven. Even when the civil law prescribed the forcible sterilization of the mentally incompetent, to prevent their breeding more incompetents. Holmes on the Supreme Court sustained the law in the name of “the public welfare,” declaring: “Three generations of imbeciles are enough.”13

Law, as Holmes conceived it, was not the deliberate logical creation of great minds, but rather represented the evolved and codified experience of vast numbers of people:

The life of the law has not been logic: it has been experience. ... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.14

Holmes did not deny that there was logic in law or that great minds had in fact contributed to its development, nor did he fatalistically accept whatever law existed. He in fact became famous as “the great dissenter” on the Supreme Court. “I venerate the law,” he said, but “one may criticise even what one reveres.”15 What Holmes denied was that law had historically evolved by the application of logic, though there was a general logic in its propositions, arising systemically. He recognized “the countless number of great intellects that have spent themselves in making some addition or improvement” in the law – “the greatest of which,” he said, “is trifling when compared to the mighty whole.”16 Here, as in other areas of the constrained vision, it is the experience of the many rather than the brilliance of the few that is to be relied upon, and historical evolution rather than excogitated rationality that is paramount.

The social benefits of known law, as a framework within which the many could make their own decisions, were weighed in a similar fashion by the celebrated English legal theorist of the eighteenth century, William Blackstone. The trade-off between individual justice and the social benefits of certainty was particularly striking within the British legal tradition, where “courts of equity” were institutionally distinguished from “courts of law” – the former to make exceptional adjustments for the sake of individual justice. Blackstone said:

Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to positive law. And on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, tho' hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would be almost as many rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.17

The parallel of such reasoning with other conclusions in the tradition of the constrained vision was not merely coincidental. Blackstone's vision of man was that “his reason is corrupt, and his understanding full of ignorance and error.” To Blackstone, “the frailty, the imperfection and the blindness of human reason”18 made it an unreliable instrument for the direct creation of law. Reason was necessary but not sufficient. When Blackstone said, “what is not reason is not law,” he added immediately:

Not that the particular reason for every rule in law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded. And it has been an antient observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.19

In short, like Holmes and like the constrained vision in general, Blackstone found evolved systemic rationality superior to explicitly excogitated individual rationality. Blackstone thus became the great expositor and advocate of the British common law – “doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage.”20 Moreover, in interpreting the written law, Blackstone urged following the original intentions of those who wrote the law, seeking to “interpret the will of the legislator” by “exploring his intentions at the time when the law was made,” taking his words “in their usual and most known signification,” establishing their meaning “from the context” if necessary, and only as a last resort “when the words are dubious” trying to carry out the intent or spirit of the law.21

Like Holmes later in the law, or like his contemporary Burke in politics, Blackstone did not advocate an unchanging law or society. What distinguished his position was the mode of change and the caution about change:

The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust: for though their reason be not obvious at first view, yet we owe such deference to former times as not to suppose they acted wholly without consideration.22

Though Blackstone and Holmes were the most famous exponents of the constrained vision in the laws of their respective countries, their views were not unique, nor confined to legal theorists. Other exponents of the constrained vision in other fields expressed similar views when they mentioned the law. To Burke, for example, jurisprudence “with all its defects, redundencies, and errors, is the collected reason of the ages.”23 To Hayek, the law “does not owe its structure to the design of either judges or legislators.”24 Adam Smith saw “the sacred and necessary law of retaliation” for murder as “antecedent to all reflections upon the utility of punishment,”25 and natural resentment in general as “the safeguard of justice and the security of innocence.”26 With all, law evolved as an expression of the natural feelings and experiences of human beings in general, not the articulated rationality of intellectual or moral leaders. Moreover, human nature was not considered to vary fundamentally over time. Holmes assumed that “the earliest barbarian ... had a good many of the same feelings and passions as ourselves.”27 Here too his assumptions were typical of the kind of equality conceived by the constrained vision.

The Unconstrained Vision

The unconstrained vision has likewise been consistent over the centuries in reaching opposite conclusions on justice and the law. Although the argument has been made that modern psychological and sociological thinking enables courts today to individualize punishments to the criminal rather than the crime, the argument for individualizing the application of law to the criminal goes back at least as far as the eighteenth century, and has been as much a part of the unconstrained vision as the opposite view has been part of the opposite vision.

William Godwin condemned both the “absurdity” and the “iniquity” of punishment according to the general category of crimes committed. “No crimes were ever alike” he said.28 According to Godwin:

There is no maxim more clear than this, “Every case is a rule to itself.” No action of any man was ever the same as any other action, had ever the same degree of utility or injury. It should seem to be the business of justice, to distinguish the qualities of men, and not, which has hitherto been the practice, to confound them.29

It is not “real justice,” according to Godwin, to proceed by “reducing all men to the same stature” according to the crime committed. Rather, justice requires “contemplation of all the circumstances of each individual case.”30 Note, however, that the opposite positions of Godwin and Holmes on individualized punishment do not reflect differences in “value premises.” Holmes, like Godwin, regarded it as morally superior to individualize criminal punishments or civil liability judgments, but simply regarded this higher morality as beyond the capability of human courts. They differed in empirical assumptions rather than in value premises.

The emphasis on individualizing criminal justice has remained part of the unconstrained vision over the centuries. John Dewey, for example, said:

The dawn of truly scientific criminal law will come when each individual case is approached with something corresponding to the complete clinical record which every competent physician attempts to procure as a matter of course in dealing with his subject.31

In the unconstrained vision, it is not only the justice of punishment but also its efficacy which is at issue. According to Godwin, punishment is “inimical to the improvement of the mind” because incentives of reward and punishment are distractions from the real reasons why one kind of behavior is socially preferable to another.32 In Godwin's view, “moral improvement will be forwarded, in proportion as we are exposed to no other influence, than that of the tendency which belongs to an action by the necessary and unalterable laws of existence.” Man needs to be “governed by the moral arithmetic of the case,” realizing that the well-being of many others is more important than his own.33

While the constrained vision takes people's motives and predispositions as given, and emphasizes incentives to lead to socially desired behavior, the unconstrained vision attempts to change people's motives and predispositions, so that incentives in general are less important, whether in the economic marketplace or in the law.34 The unconstrained vision seeks a solution – in Condorcet's words, “the reconciliation, the identification of the interests of each with the interests of all,” so that “the path of virtue is no longer arduous.”35

From the standpoint of the unconstrained vision, the issue is not how best to structure incentives currently but how to rely less and less on incentives over time – especially the incentive of punishment. Social institutions should aim at seeing “men influenced by other and better motives.” The statesman should “be careful not to add rigor to the selfish passions,” but instead to “gradually wean men from contemplating their own benefit,” as incentives in general tend to cause them to do.36 Godwin wished to see men more concerned with their duties and rights than with rewards and punishments.37

Just as the two visions see the nature and role of rewards and punishments very differently, so they see the development of law in quite different terms. For Condorcet, progress in the law was conceived as the deliberate work of outstanding individuals:

Laws are better formulated and appear less often to be the vague product of circumstances and caprice; they are made by learned men if not yet by philosophers.38

Further advancement was conceived by Condorcet in similarly rationalistic terms:

The creation of a system of criminal jurisprudence would be a huge enterprise demanding time, work, and a luminous intelligence in those undertaking it, and a profound mind in the man charged with responsibility for planning and executing it.39

The unconstrained vision has continued to emphasize the deliberate creation of law, by both legislators and judges, in order to produce desired social results. It rejects the emphasis of the constrained vision on the characteristics desirable in legal processes, as such, and especially the attempt to make the judge's role essentially that of a neutral transmitter of process principles created by constitutional or legislative enactments. Where process principles have disparate impact on different social groups, the neutrality of the principle and the judge are deemed illusory, if not hypocritical.

The emphasis on process has been called by Laurence Tribe “the dangerous allure of proceduralism.” The attempt to evolve principles aimed at the general benefit of society without regard to their differential impact on subsets within society he characterized as “the paralyzing seduction of neutrality,” and the vision of an incrementally evolving law he described as “the morally anesthetizing imagery of the natural.” It was the social result that was crucial, “the hidden (and sometimes not-so-hidden) tilt of various constitutional doctrines toward the perpetuation of unjust hierarchies of race, gender, and class” which he found offensive, and the attempt to “deflect judicial responsibility for crucial substantive choices” which he found questionable.40

Tribe's viewpoint “questions all formulas as devices for concealing the constitutional choices that we must make – and that we cannot responsibly pretend to ‘derive’ by any neutral technique.”41 In short, the issue is not process principles but social results, not transmission of law derived from incremental evolution in the past but deliberate choices made in the present. Tribe denies that this means “anything goes” in judicial interpretation,42 but argues that interpretation of texts is “inescapably subjective,” so that the interpreter has “no escape from the need to make commitments of significant premises” of social morality.43

We must make choices but renounce the equally illusory freedom to choose however we might wish to choose. For it is a Constitution – a specific, necessarily imperfect Constitution – in whose terms we are, after all, choosing.44

Judges thus must get into “the kind of controversial substantive choices that the process proponents are so anxious to leave to the electorate and its representatives.”45 To Tribe, “the Constitution is inevitably substantive”46 so that those who interpret it must decide issues taking substantive results into account. In short, to Tribe the written law is neither irrelevant nor all-determining. The Constitution “is not simply a mirror, nor is it an empty vessel whose users may pour into it whatever they will.”47

As an example of the difference between process-based judicial decisions and a more substantively based decision. Tribe criticized court rulings which upheld the legality of applying certain physical standards to particular job applicants, regardless of sex, “blithely ignoring sex-specific physical differences that make the ‘similar’ treatment of men and women invidious discrimination.”48 A number of sex-difference cases demonstrate to Tribe that “pervasive inequalities in the distribution of power and status are overlooked,” that “the evils to be extirpated” are instead allowed to flourish as part of “the omnipresent realities that the legal order simultaneously reflects and re-creates with relentless rationality.”49

In a similar vein, Ronald Dworkin called for “a fusion of constitutional law and moral theory.” The Constitution itself “rests on a particular moral theory” and must be understood as appealing to moral concepts rather than laying down particular conceptions – that is, it is to be interpreted broadly as moral values to be applied rather than as explicit rules to follow. Any court that undertakes the burden of applying constitutional clauses “must be an activist court, in the sense that it must be prepared to frame and answer questions of political morality.”50

INDIVIDUAL RIGHTS

Both visions believe in rights. But rights as conceived in the unconstrained vision are virtually a negation of rights as conceived in the constrained vision. Social theorists in both traditions recognize that rights are not absolute, and there are variations within both visions as to the weights given one right over another when they conflict, as well as differences in the scope accorded a particular right. But the fundamental difference between the two visions is in what the very concept of rights means.

The Constrained Vision

As already noted in Chapter 7, the constrained vision thinks of legal boundaries within which private individuals and groups may make their own decisions, without being second-guessed by political or legal authorities as to whether those decisions are wise or foolish, noble or mean. From the standpoint of the constrained vision, the scope of those boundaries of immunity from public authority are the scope of people's rights. This is a process conception of rights – the legal ability of people to carry on certain processes without regard to the desirability of the particular results, as judged by others.

Although these rights, as zones of immunity from public authority, belong to individuals, their whole purpose is social, in the constrained vision. In that vision, the sacrifice of the individual for the social good has a long tradition going back at least as far as Adam Smith in philosophy and economics, and Holmes and Blackstone in American and British law, respectively. Yet it is precisely this tradition which has consistently emphasized the importance of individual property rights, for example. The crucial benefits of property rights have been conceived as social – as permitting an economic process with greater efficiency,51 a social process with less strife,52 and a political process with more diffused power and influence than that possible under centralized political control of the economy.53 The beneficiaries of such processes are conceived to be the population at large, and the justification or lack of justification of property rights is made to rest on that basis.

In the same way, rights of free speech are zones of immunity from public authority, without regard to whether what is said is wise or foolish, noble or mean. In two of Holmes' best-known free-speech opinions on the Supreme Court, he rested his conclusion in favor of free speech on social expediency, not the superior rights of the individual. In Abrams v. United States, Holmes pointed out that this social expediency derived from the inherent limitations of man's knowledge and the crucial trade-off this implied. “Persecution for the expression of opinion” would be “perfectly logical,” he said, provided “you have no doubt of your opinion.” Holmes continued:

But when men have realized that time has upset many fighting faiths, they may come to realize even more than they believe the very foundation of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.54

This opinion encapsulated key features of the constrained vision: (1) the test of truth by social process rather than articulated rationality, (2) inherent human limitations – man's “imperfect knowledge” – as the reason for relying on social processes, and (3) reliance on experience as the overall rationale (“time has upset many fighting faiths”).

The primacy of social interests over those of the individual appeared both in this opinion and later in Schenck v. United States. In Abrams, while Holmes urged eternal vigilance against the suppression of opinions considered loathsome and dangerous, his proviso was “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is necessary to save the country.”55 This was a clear forerunner of his more famous proviso of a “clear and present danger” standard in Schenck. In both cases, the public interest was considered paramount, with free speech being a derivative right of the individual, precisely in order to serve that public interest – and therefore subject always to annulment when it directly and unmistakably threatened the public interest itself. Finally, the right of free speech, whatever its scope or limitations, meant purely and simply an exemption from public authority. It did not imply any facilitating activity by the authorities.

The Unconstrained Vision

Unlike the constrained vision, which sees individual rights as instrumentalities of the social process – their scope and limits justified by the social processes from which they are derived – the unconstrained vision sees rights as inhering in individuals for their own individual benefit and as fundamental recognitions of their humanity. Free-speech rights or property rights are therefore justified or not by their relative importance to the individuals who exercise them. Given the uneven distribution of property and the universality of speech, freedom of speech logically becomes a far more important right than property rights in this vision. Free-speech rights are thus entitled to sweeping exemptions from interventions of public authority, but not so property rights. Dworkin dismissed “the silly proposition that true liberals must respect economic as well as intellectual liberty. ...”56

Issues involving property rights are seen in a results context in the unconstrained vision of Dworkin and Tribe, rather than a process context. While those with a constrained vision focus on the incentive effects of a property-rights system on the economic process, those with the unconstrained vision focus on such social results as the existing distribution of property. Laws safeguarding property rights are thus viewed in the unconstrained vision of Laurence Tribe as “immunizing from majoritarian rearrangement extant distributions of wealth and economic power, almost as though such patterns and distributions of capital reflected something decreed and indeed sanctified by nature rather than something chosen by the polity.”57 Property-rights issues are to Tribe issues concerning “the existing distribution of capital.”58 Doctrines espousing property rights represent a “tilt against redistribution.”59 The “rights of property and contract” supported by the framers of the U.S. Constitution represent “substantive values.” Therefore, Tribe finds is “puzzling that anyone can say, in the face of this reality, that the Constitution is or should be predominantly concerned with process and not substance.”60

According to Tribe, “seemingly neutral principles” in theory turn out in practice to “tilt decidedly in the direction of existing concentrations of wealth and influence.”61

Free-speech rights have likewise been viewed by Tribe in a substantive results context:

The decline of traditional public forums such as parks and streets has been accompanied by the rise of privately owned shopping centers as key locations for reaching the public; inexpensive methods of communication such as leafletting, picketing, and soapbox orating have given way to expensive media such as electronic broadcasting, newspaper advertising, and direct mail.62

In short, “speech, as it now comes to us, is usually anything but ‘free,’”63 according to Tribe, and “free expression has not, in truth, been available to all.”64 This conception of free speech, like the conception of freedom in general in the unconstrained vision, is clearly a results conception, unlike Holmes' process conception in which all that was at issue was exemption from limitation by governmental authority. This cost conception of free speech has not been limited to Laurence Tribe or other legal theorists. The U.S. Supreme Court, in a series of cases involving the handing out of leaflets on private property (housing developments, shopping malls) in violation of the owners' prohibitions, ruled in favor of those handing out the leaflets, citing the expensiveness of alternative modes of exercising free-speech rights as a reason for overriding property rights.65 Had the court not sided with those arrested under trespass laws, according to Tribe, it would have meant that local property laws would have “denied the protection of the First Amendment to the residents of company towns and those who wished to communicate with them.”66 There would have been a denial of free speech, by this conception, even though the content of what was said – at some other location – would have remained exempt from government authority.

SOCIAL JUSTICE

William Godwin's Enquiry Concerning Political Justice in 1793 may have been the first treatise on social justice. The term “political” in its title was used in the sense common at the time, referring to organized society – much as the contemporary expression “political economy” referred to the economics of society, as distinguished from the economics of the household. In short, Godwin wrote on social justice, as that term is used today. Social justice, as depicted by Godwin, was a pervasive and demanding duty. He said “our debt to our fellow men” includes “all the efforts we could make for their welfare, and all the relief we could supply to their necessities.” According to Godwin: “Not a talent do we possess, not a moment of time, not a shilling of property, for which we are not responsible at the tribunal of the public, which we are not obliged to pay into the general bank of common advantage.”67 He rejected “the supposition that we have a right, as it has been phrased, to do what we will with our own.” He denied its premise: “We have in reality nothing that is strictly speaking our own.”68

However, these were all moral duties, not political duties, such as might be imposed by a welfare state or a socialist government. It was the imperative moral force of such heavy social duties which made it unnecessary for Godwin (or Condorcet) to invoke governmental power to effect the kind of social changes today identified with the state – and for both to support property rights and laissez-faire,69 as far as government's role was concerned. It is not difficult, however, to see how the kind of social analysis pursued by Godwin and Condorcet has led others to oppose laissez-faire economics and to have reservations about property rights, if not outright opposition to the concept. It was their faith in the power of reason to eventually make moral duties effective guides to individual conduct which made it unnecessary for Godwin or Condorcet to resort to government as the instrument of the sweeping social changes they sought. (This also illustrates the pitfalls of mechanically translating unconstrained and constrained visions into the political left and right, since Godwin and Condorcet were more “radical” than many on the left who would not share their reluctance to touch property rights or invoke government planning.)

Whatever its mechanisms or details, social justice has been the dominant theme of the unconstrained vision, from Godwin to Rawls. Like other forms of justice, it is conceived as a result rather than a process. But while the imperative of social justice pervades the unconstrained vision, it is virtually non-existent in the constrained vision. Social thinkers in the tradition of the constrained vision deal with issues of income distribution as a process, and consider its humane aspects as well as efficiency issues, but there is no implication that one income distribution result is more just than another.

F. A. Hayek is one of the few writers with a constrained vision who discusses social justice at all – and he characterizes it as “absurd,”70 a “mirage,”71 “a hollow incantation,”72 “a quasi-religious superstition,”73 and a concept that “does not belong to the category of error but to that of nonsense.”74 Other contemporaries of his in the tradition of the constrained vision – Milton Friedman and Richard Posner, for example – do not bother to discuss it, even as something to be rebutted.

The concept of social justice thus represents the extremes of the conflict of vision – an idea of the highest importance in one vision and beneath contempt in the other.

The Unconstrained Vision

Humane efforts to help the less fortunate have been part of both visions over the centuries. Adam Smith took part in such efforts, both in theory and in practice.75 So did John Stuart Mill.76 The campaign against slavery was also supported by leading figures in both traditions – by Burke and Smith, as well as by Godwin and Condorcet.77 In the twentieth century, schemes of income transfer to the poor have been proposed by Milton Friedman and by George Bernard Shaw.78

What distinguishes the unconstrained vision is not that it prescribes humane concern for the poor, but that it sees transfers of material benefits to the less fortunate not simply as a matter of humanity but as a matter of justice. Edward Bellamy's novel Looking Backward, protested not only that the poor were relegated to receiving crusts, but that insult was added to injury by calling the crusts charity. As co-inheritors of a prosperity created largely through the efforts of preceding generations, they were entitled to more – in the name of justice.

Central to the concept of social justice is the notion that individuals are entitled to some share of the wealth produced by a society, simply by virtue of being members of that society, and irrespective of any individual contributions made or not made to the production of that wealth. Whether they are entitled to a full share or a smaller share – perhaps only some minimum of “decency” – is a question answered variously by different social thinkers in this tradition, but the crucial point is that everyone is seen as entitled to some share as a matter of justice, not simply as a matter of charity. According to Godwin:

The doctrine of the injustice of accumulated property has been the foundation of all religious morality. Its most energetic teachers have been irresistibly led to assert the precise truth in this respect. They have taught the rich, that they hold their wealth only as a trust, that they are strictly accountable for every atom of their expenditure, that they are merely administrators, and by no means proprietors in chief. But, while religion thus inculcated on mankind the pure principles of justice, the majority of its professors have been but too apt to treat the practice of justice, not as a debt, which it ought to be considered, but as an affair of spontaneous generosity and bounty.

The effect which is produced by this accommodating doctrine, is, to place the supply of our wants in the disposal of a few enabling them to make a show of generosity with what is not truly their own, and to purchase the submission of the poor by the payment of a debt. Theirs is a system of clemency and charity, instead of a system of justice. It fills the rich with unreasonable pride, by the spurious denominations with which it decorates their acts; and the poor with servility, by leading them to regard the slender comforts they obtain, not as their incontrovertible due, but as the good pleasure and grace of their opulent neighbors.79

Similar themes have remained part of the tradition of the unconstrained vision. George Bernard Shaw, disdained people who “plunge into almsgiving to relieve their sickly consciences,” partly because “it fills the paupers with humiliation, the patrons with evil pride, and both with hatred,” but more fundamentally because “in a country justly and providently managed there could be neither excuse for it on the pauper's part nor occasion for it on the patron's.”80

While the concept of social justice in the unconstrained vision revolves around issues of income distribution – conceived as a statistical result – there is also a subsidiary concern for social mobility, also conceived as a result. All of these concerns are viewed in radically different terms in the constrained vision.

The Constrained Vision

Although F. A. Hayek is exceptional among leading figures in the constrained vision in discussing social justice at all, the nature of his discussion may provide clues as to why so many others in this tradition do not bother to discuss it. While those with the unconstrained vision define social justice as a result, which they warmly embrace, Hayek treats social justice as a process, which he bitterly rejects – “the atrocious principle implied that all rewards should be determined by political power.”81 Hayek neither challenges, accepts, nor denies the results characterized by others as social justice. His objection is not that some alternative pattern of income results is preferable, but rather that the attempt to create such preconceived results means creating processes which “can destroy a civilization.”82

Hayek's whole method of thinking is directly the opposite to that of Rawls. When Rawls repeatedly speaks of reasons of justice why society should “arrange” – somehow – one result rather than another, he abstracts from social processes to concentrate on social goals. But Hayek abstracts from these social justice goals to concentrate on the characteristics of the processes created in pursuit of these goals – and the dangers that such processes are deemed to represent to freedom and general well-being. In short, each has assumed away the primary concern of the other – primary not simply as to whether freedom or justice is more important, but as to whether process characteristics or goal characteristics are more important.

Hayek treats much of the rhetoric of social justice as a confused evasion of harsh realities inherent in the processes required to move toward such goals. To Hayek, those things commonly modified by the adjective “social” – justice, conscience, democracy – are by their very nature inherently social, so that this adjective is meaningless by reason of redundancy, if the word is used in an honest and straightforward way. It is “incredibly empty of meaning,” according to Hayek,83 so that “to employ it was either thoughtless or fraudulent.”84

Although Hayek found the concept of “social justice” to be devoid of specific meaning, he found it fraught with insinuations which he considered both erroneous and dangerous. Many “who habitually employ the phrase do not know themselves what they mean by it,”85 he said, but others who have used it were not simply engaging in “sloppy thinking” but “intellectual dishonesty.”86 According to Hayek, “the phrase ‘social justice’ is not, as most people probably feel, an innocent expression of good will towards the less fortunate,” but has become in practice “a dishonest insinuation that one ought to agree to a demand of some special interest which can give no real reason for it.”87 The dangerous aspect, in Hayek's view, is that “the concept of ‘social justice’ ... has been the Trojan Horse through which totalitarianism has entered”88 Nazi Germany being just one example.89

At the social policy level, Hayek objected to the very notion of “the ‘actions’ of society, or the ‘treatment’ of individuals and groups by society” as “anthropomorphism or personification” incompatible with the concept of systemic social processes.90 “To demand justice from such a process is clearly absurd,” according to Hayek, for “the particulars of a spontaneous order cannot be just or unjust,”91 because “the results are not intended or foreseen, and depend on a multitude of circumstances not known in their totality to anybody.”92 The hidden – and dangerous – significance of the demand for social justice, in Hayek's view, was that it implied a drastic change in whole processes under the bland guise of a mere preference for better distribution. According to Hayek, “society, in the strict sense in which it must be distinguished from the apparatus of government, is incapable of acting for a specific purpose,” so that “the demand for ‘social justice’ becomes a demand that the members of society should organize themselves in a manner which makes it possible to assign particular shares of the product of society to the different individuals or groups.”93

In short, those who argue for social justice argue for a particular set of results while Hayek's objections are to the process implied by seeking these or any other specific social results for particular individuals or groups. What he objected to was “a desire for a comprehensive blueprint of the social scene as a whole.”94 For him, “personification” of society as “a thinking, collective entity” capable of producing specifically desired social results presupposed a mastery of social details inherently “beyond our ken.”95

It was not merely the futility of the attempt but the dangerousness of the attempt that was central to Hayek's objections. In his view, human freedom was crucially dependent on rules in general, and especially on rules which carved out domains of exemption from government power. These rights – as conceived in the constrained vision – “protect ascertainable domains within which each individual is free to act as he chooses”96 and are thus the very opposite of rights to social justice, which imply expansion of the governmental domain to produce social results to which particular individuals and groups are morally entitled. Whether they are or are not morally entitled – a subject dealt with at great length by various writers in the tradition of the unconstrained vision – is a subject totally ignored in Hayek's various writings on social justice. This is logically consistent with his view of the futility of the attempt and its dangerousness. It may also explain why other writers with a constrained vision do not discuss the general concept of social justice at all, though they deal with such specifics as income distribution or the “social responsibility” of business,97 or – in the case of Richard Posner – write a whole treatise on justice.98 Given the assumptions of the unconstrained vision, social justice is at the heart of all discussions of policy or societies. Given the assumptions of the constrained vision, it is hardly worth talking about, just as square circles are not worth talking about, however great the desirability of such things might be if they were possible.

The greatest danger of the concept of social justice, according to Hayek, is that it undermines and ultimately destroys the concept of a rule of law, in order to supersede merely “formal” justice, as a process governed by rules, with “real” or “social” justice as a set of results to be produced by expanding the power of government to make discretionary determinations in domains once exempt from its power. While Hayek regarded some advocates of social justice as cynically aware that they were really engaged in a concentration of power, the greater danger he saw in those sincerely promoting the concept with a zeal which unconsciously prepares the way for others – totalitarians – to step in after the undermining of ideological, political, and legal barriers to government power makes their task easier. Thus he regarded Nazism as “the culmination of a long evolution of thought”99 in Germany by socialists and others whose goals were vastly different from those of the Nazis, but who promoted the erosion of respect for legal rules in favor of the imperatives of specific social results.100

Communism has likewise been seen by Hayek as a residual beneficiary of the way of thinking promoted by people who may have no desire to see communism triumph. According to Hayek, “distributive justice” is inherently “irreconcilable with the rule of law,”101 and the ideal of a government of laws and not of men is all that stands between a free society and totalitarianism. He quotes a Soviet writer who declared that “communism means not the victory of socialist law, but the victory of socialism over any law.”102 To Hayek, that is what social justice as an overriding goal ultimately means, as an alternative to merely “formal” justice as impersonal rules of a process.

SUMMARY AND IMPLICATIONS

The Unconstrained Vision

In the unconstrained vision, where man is capable of foreseeing and controlling the social consequences of his decisions, both the individual and society are causally and morally responsible for having made choices whose social results are what they are. The nature of socially just results is therefore a central concern of this vision, which has produced a number of treatises on the principles of social justice, from William Godwin's Enquiry Concerning Political Justice in the eighteenth century to John Rawls' Theory of Justice in the twentieth. This vision demands for the less fortunate not merely charity but justice. It demands of its laws not merely procedural rules but just results – with the former yielding to the latter in case of conflict.

Judges are not to limit themselves to the application of procedural rules, in disregard of the resulting justice or injustice, according to the unconstrained vision, but are to apply moral standards implicit in the law, which rules are essentially attempts to suggest. Judges cannot pretend, to themselves or others, that they are only applying prescribed procedural rules when in fact particular legal rules produce particular social results, so that social choices have been made implicitly by judges, whether they acknowledge them or not. Those with the unconstrained vision want these choices made explicitly, based on constitutional values and norms, rather than on narrow readings of constitutional rules on the one hand, or purely ad hoc judicial preferences on the other.

In this vision, the rights of individuals are to be “taken seriously” as essential recognitions of their humanity, and social expediency is to yield when basic human rights such as free speech or the right of the accused to constitutional protection are at issue.103 In conflicts between rights, those which define the human being as a subject rather than an object are to have categorical preference over other rights, such as rights to property, and all rights are to trump all interests, such as a general interest in social peace, or economic efficiency. Inconveniences caused by pickets or those handing out leaflets are deemed a small price to pay for the basic right to free speech, and the fact that some criminals escape the law due to constitutional protections essential to the recognition of the basic humanity of all is likewise a price worth paying, to those with the unconstrained vision.

Given the greater ability of individuals and social decision-makers to foresee the consequences of their actions in the unconstrained vision, there is a correspondingly greater moral burden on them to exhibit “social responsibility,” rather than simply to pursue their own individual interests within procedural rules. In William Godwin's vision especially, each individual thus becomes in effect a surrogate decision-maker for society, even when making purely individual and unofficial decisions – a surrogate not in the sense of controlling others' decisions but in the sense of making his own available choices in such a way as to promote the general well-being, rather than his own. Thus the radical individualism of Godwin, which is procedurally the same as that of modern libertarianism in its sweeping rejection of a government role in the economy, is substantively much closer to modern socialism in wanting specific social results to be the direct object of the decision-making process.

Equality has been at the heart of the tradition of the unconstrained vision, in its conception of justice, as elsewhere. Degrees and modifications of equality have varied among those in this tradition but, in whatever degree or modification, equality has meant equality of results. Given man's ability to shape social results, this has included compensatory rather than equal treatment of some. While the modern form of this approach in “affirmative action” policies is quite recent, the idea of compensatory social treatment goes back at least as far as Condorcet in the eighteenth century.104

In addition to being logically consistent with the unconstrained vision, “affirmative action” also illustrates the role of rights and interests in that vision. Members of the general population are deemed to have an interest in particular jobs, college admission, and other benefits to which compensatory preferences for selected groups may apply. But the members of those selected groups have a right to be where they would have been except for historical patterns of discrimination. Interests therefore give way to rights, which are “trumps.” Individuals from either the majority population or selected minorities have equal interests and suffer equal losses of those interests when denied a job, college admission, or other benefits. But members of the selected minority groups are also deemed to have suffered past stigmatizing implications of inferiority through discrimination, which current rejected applicants from the majority population do not suffer in “reverse discrimination.” Since stigmas of inferiority are seen as denials of basic humanity, they violate rights, as rights are conceived in the unconstrained vision, while “reverse discrimination” can violate only interests. Once again, in this vision, rights take precedence over interests.

Moral rights in the unconstrained vision are rights to results. Their political and judicial enforcement justify the extension of government power to domains of interest, such as those protected by property rights. Those other interests are not annihilated but are abridged to the extent made necessary to vindicate more fundamental rights and constitutionally protected values. This process involves judges weighing competing values – making complex “constitutional choices” in Laurence Tribe's phrase – rather than simply applying procedural rules.

The Constrained Vision

Much of what the unconstrained vision sees as morally imperative to do, the constrained vision sees man as incapable of doing. Because of the crucial premise that man cannot effectively monitor the social ramifications and reverberations of his individual choices – whether he acts for himself or in the name of society – the constrained vision treats as moot vast ranges of moral principles encompassed under the heading of social justice. There are no “constitutional choices” to make, if man cannot choose social results anyway. Even when the individual's decision has major social impact, it will seldom be the result he intended, given the assumption of the constrained vision that deliberately determining social results rationalistically is beyond the capabilities of man. A central concern of those with the constrained vision is precisely that there will be major social impacts of a kind completely different from the intentions, including the destruction of the rule of law in the quest for an illusory social justice.

In the constrained vision, the principles of justice are subordinated to the possibilities of justice. Oliver Wendell Holmes acknowledged that taking account of the inborn clumsiness of an individual who innocently inflicted damage on others would be a higher form of justice, but dismissed it as a principle of civil litigation beyond human capability. The whole literature on social justice issuing from those with an unconstrained vision is almost totally ignored by these with the constrained vision. Particular issues are covered in both visions, but the general principles of modern social justice theory are neither contested nor evaluated by the leading contemporaries in the constrained vision. Even Hayek, who has paid more attention to this literature than others of his persuasion, spends virtually no time on its general principles, being concerned instead with determining the likely social consequences of attempting to pursue such goals – their actual realization being implicitly deemed impossible.

Social processes are central to the constrained vision. Individual rights originate, take their meaning, and find their limits in the needs of social processes. However, that does not mean that incumbent judges or political leaders are authorized to expand or contract these rights in ad hoc fashion, according to their changing assessments of social needs. On the contrary, these rights are domains of exemption from the judgments of political or legal authorities. The assessment of long-run social expediency is already implicit in that exemption. This is symptomatic of a more general difference between the constrained and the unconstrained visions. They differ not only in the locus of discretion and the mode of discretion, but also in the locus of assessment and the mode of assessment.

In the constrained vision, man is capable of making long-run and general assessments of social processes, comparing constitutional government with alternative governments or competitive economies with politically directed economies, for example. The mode of assessment is experiential, and the revealed preference of the many – especially when they “vote with their feet” – is from this perspective more persuasive than the articulation of the few. By contrast, the unconstrained vision implicitly sees man as capable of judging more immediately, and more minutely, when it offers discrete solutions to numerous social problems seriatim.

While those with the unconstrained vision often stress the complexity of the social choices to be weighed by judges and other surrogate decision-makers, those with the constrained vision see such complexity as too great even to attempt to prescribe specific social results, leaving surrogate decision-makers with the more manageable task of applying rules which allow the substantive trade-offs to be made at the discretion of innumerable other individuals.

With ordinary social results so difficult to control, in the world as conceived in the constrained vision, compensatory justice is beyond consideration. The moral rationales of such policies as “affirmative action” receive little or no attention, given the remoteness of any possibility of their being realized. What is examined instead are the incentives created by such policies and their effect on social processes, especially the rule of the law as contrasted with the issuance of edicts prescribing results. The argument concerning “stigma” was rejected in the Bakke case, not on grounds that it was not true, but on grounds that it was not part of the constitutional rules which the Supreme Court was authorized to apply.105

In the constrained vision, with justice as with everything else, “the best is the enemy of the good.”



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