Front Page Titles (by Subject) V: Justice - Literature of Liberty, April/June 1978, vol. 1, No. 2
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V: Justice - Leonard P. Liggio, Literature of Liberty, April/June 1978, vol. 1, No. 2 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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Justice, in the judgment of social thinkers from Plato to Harvard's John Rawls and Robert Nozick, has meant fairness and rightness of human actions in a social context. This harmony dissolves, however, when each thinker seeks to coherently explain the traditional formulation of justice: “giving to each his due.” What is each person's due? How should society determine and assure just allocation in economic resources, education, social standing, legal justice?
These fundamental questions lead to the rival options of choosing either the state or the market as the mechanism of achieving social justice. Should the state be the voice of justice, and essay to achieve social welfare, equality, distributive justice, and a fair balance of competing claims and rights through its coercive authority? Or should the market—the network of voluntary interactions among humans—be the mechanism to guarantee a spontaneous order of both distributive and commutative and commutative justice?
This alternative raises another issue: how may we define the relationship between justice and individual rights or liberty?
So overarching a concept is justice that it overflows the confines of this set of summaries and reappears in several other sections, most notably in the following section on “Property.”
Justice, Lockean Rights, and Liberty
“Liberty and Justice,” Justice and Economic Distribution. Edited by William Shaw and John Arthur. New York: Prentice Hall, 1978: 183–193.
Is a free society consistent with justice? A Lockean or libertarian theory of rights can produce both a free and a just society. Such a Lockean social system recommends itself by reason of its decentralization, personal participation, rights, liberty, and justice. It would allow a maximum of human differentiation with a minimum of imposed conformity.
Lockean individual rights (respect for the liberty of each person) foster the growth of free markets and justice. Under this system the voluntaristic mechanisms of the market would replace political, coercive decision making. This society would intimately link liberty and justice by means of the concepts of just holdings (entitlements) and the wrongness of coercing persons.
Lockean rights stipulate that each human possesses a natural right to his life, liberty, and honestly acquired property. This leads to a “negative” conception of liberty: freedom from coercion against one's person and legitimate property. A society built on Lockean principles would be a complex web of voluntary relationships, a contractual society. Each person's uncoerced and free agreement to trade or to associate would give rise to a market society for the exchange of goods and services.
This market society would be characterized by decentralized decision making: no centralized political authority would compel unwilling participation by bureaucratic edict. All individual parties would have to voluntarily cooperate, participate, and coordinate their plans in reaching any joint decision. Political, involuntary planning, by contrast, breeds interest groups struggles and a Hobbesian war of all against all.
With its supreme social principle of respect for the freedom or noncoercion of each person, a free society bans any act violating personal liberty and encourages only noncoercive acts.
How relevant is this emphasis on noncoercion, property, and liberty to justice? To require noncoercion means that each person's just holdings (or entitlements) must be respected. One perpetrates not only coercion but also injustice when one deprives another nonconsensually of what that person justly acquired. The call for liberty is the call also for justice because justice is the condition of respecting the freedom of individuals to possess all that they are entitled to possess.
Accordingly, in a Lockean society, distributive justice is a procedural strategy of leaving each person free to engage in any rights-respecting (or noncoercive) economic activity. Any political intervention to redistribute goods or services contrary to the voluntary market decisions of individuals would violate justice.
Justice and Adam Smith
“Justice in Smith: The Right and the Good.” Review of Social Economy 34 (December 1976): 275–294.
Adam Smith exposits a complex view of justice (in The Wealth of Nations and The Theory of Moral Sentiments), which supports liberalism on nonutilitarian grounds. This view corrects John Rawls's characterization of Smith.
Smith provides an alternative to the kind of interest group liberalism that lacks a conception of the common good. His moral system allows for the development of a concept of the common good and of justice. Indeed justice plays a key role in Smith's arguments. Smith's “conception of justice views social interaction as more than the sum total either of purely self-interested individual actions or even of purely benevolent ones.” As a result, modern critics of interest group liberalism show an affinity with Smith's position.
John Rawls's A Theory of Justice (Cambridge, Massachusetts: Harvard University Press, 1971) provides a framework for discussing justice in the Smithian moral system. Rawls's agents decide on principles of justice in a disinterested “original position.” These agents, hidden by a “veil of ignorance” from knowing their respective social positions, determine the principles of justice without vested interests. These principles make the right prior to the good, the reverse being true for utilitarians. Smith probably would have agreed with Rawls; this pits both against interest group liberalism and puts both in favor of justice as fairness.
Smith believes that actions are motivated both by self-interest and sympathy; this permits him to rely on cooperation and synergy in human affairs without calling in government. Morality begins as a simple desire for approbation (which is self-interested), but it evolves into internalized standards emanating from conscience (Smith's “inhabitant of the breast”).
Justice is a prerequisite and primary, for society cannot operate without it. The other virtues need not be similarly compelled by the state, but will develop spontaneously in a just society characterized by mutuality based on sympathy. In this Smith is neither advocating utilitarianism, nor presupposing disinterested benevolence (Rawls misinterprets Smith on this point). Moral rules are not adopted for purely utilitarian reasons by Smith, unless one insists on converting all moral theories into utilitarian ones. Smith and Rawls are closer than Rawls perceives.
Rawls's Social Contract
“The Use of the Basic Proposition of Justice.” Mind 84 (January 1975): 63–78.
John Rawls in A Theory of Justice (Oxford 1972) advances a make-believe drama of social contract, entitled the “basic proposition”: that people, hypothetically choosing the nature of a society from a specified “original position,” would in fact choose Rawls's social principles. Advancing a variant on social contract theory, Rawls imagines the framers of his ideal society, placed in this “original position,” as rational, self-interested, free from envy, and choosing behind a “veil of ignorance.” Each, ignorant and unbiased by any vested interests that he might possess in the contemplated society, can make a fair judgment of a good society. Such a fairminded, reasonable person, it is argued in Rawls's basic proposition, would choose two principles for the future society: (1) that each member of society have a right to the greatest consistent amount of liberties (equal liberty), and (2) that no inequality be allowable which does not improve the lot of the worst-off in society (difference principle).
The various methodological uses which Rawls claims for his “basic proposition” are superfluous and muddled. Imagining an “original position” which hypothetically illustrates a social contract is philosophically pointless; it is preferable to dispense with social dramas which prove nothing and engage in ordinary logic and reason. Rawls's basic proposition is not superior in its justifactory, expository, or explanatory uses.
To illustrate the philosophical emptiness of using Rawls's basic proposition we can analyze “the Justificatory Use.” This refers to how we can justify or evaluate actual societies by measuring how closely they conform to Rawls's imaginary social contract and its two principles of justice (equal liberty and the difference principle). Rawls reasons as follows: (1) We have certain assumed convictions about the values of liberty, the need for incentives, and the rightness of egalitarianism. This leads us to accept the next step. (2) The circumstances of choosing a social structure in the “original position” seem fair because of the impartial “veil of ignorance.” Therefore we infer the next step. (3) People would choose Rawls's two principles of justice. This supposedly leads us to the final conclusion. (4) We can logically use Rawls's principles as recommendations for justifying, evaluating, or changing real societies in conformity with the demands of justice handed down in our imagined social contract drama.
This entire line of reasoning is termed the “Contract Argument.” But this dramatic use of the contract argument is otiose and no better than the simpler “Ordinary Argument.” The ordinary method of argument dispenses with the imaginative trappings of a hypothetical scenario which bolster the contract argument. In the ordinary argument, we reason from Rawls's premise (1) straight to premise (4). What need is there for imaginative flights that have dubious logical validity? Thus, the basic proposition is irrelevant.
If Rawls were to counterclaim that we would agree to his principles if we were in the dramatized social contract situation, the simple response is that we are not there. But whether we are there or not, it is the philosophical truth and validity of Rawls's arguments that must be established. His fictional drama of imaginary persons agreeing with him does not prove his case.
“Discussion Review: Justice, Theory, and a Theory of Justice.” Philosophy of Science 44 (1977): 594–618.
This critical review of John Rawls's Theory of Justice concentrates on the methodology of the book's arguments and conclusions rather than on their substance. One strong objection would be Rawls's non sequitur about deriving the validity of social principles of justice from the act of choosing them. Rawls implies that what makes certain sorts of social acts right is that rational persons in an “original position” would choose for them to be considered as such. It is more plausible to contend that the reason why rational persons in the original position or in more realistic positions would choose them or reject them would be because they are philosophically right or wrong.
We might also attack the notion that unanimity is a reasonable or necessary condition for social systems based on an adequate theory of justice. This has implications for those who think that the requirements of justice can, in many cases, be met merely by having the affected parties in an interaction agreeing. Similarly this attack would affect those theories of justice that allow different principles to different groups of people.
Other difficulties in Rawls's book are: the undefended assertion that justice and truth are “the first virtues” of social institutions and theories, and the deductive status of Rawls's arguments.
Justice and Social Welfare
“Maximin Justice and an Alternative Principle of General Advantage.” American Political Science Review 69 (1975): 630–647.
John Rawls's A Theory of Justice (1972) attempts to determine what would constitute a fair allocation of property and goods. Under what conditions can some persons in society initiate legitimate coercion over others to assure such a fair distribution? Rawls's solution is his principle of “maximin justice.” It decrees those inequalities are tolerable and just that work “to the greatest benefit of the least advantaged....” Rawls argues that this principle would be chosen by social contract among rational men in an impartial “original position.”
Rawls's maximin principle is in fact unjust and unfair. Rawls's imaginary social contract would disenfranchise all but the lowest socioeconomic class. What reason have others for complying with it? This principle would have us judge allocations of goods by ignoring everyone but the lowest class. This procedure would increase inequality and also decrease the total goods available to society.
“Affirmative Action Reconsidered.” The Public Interest 42 (Winter 1976): 47–65.
Affirmative action is a vague legal concept which in the name of justice purports to remedy previous discrimination by actively promoting and encouraging the hiring of minority individuals. As we examine the intention, concepts, and actual effects of affirmative action policies, we find they have done more harm than good. Administration of the Civil Rights Act has led to what sponsors of the legislation did not intend; in fact, they said it would not happen. The burden of proof of discrimination has been placed on employers whose proportional representation of employees by race or sex does not measure up to federal agency standards.
Bureaucratic nightmares have been created by affirmative action considerations in academic hiring. Academic administrators, desiring to preserve federal subsidies, increasingly overturn the long-standing practice of academic hiring. Academic departments who are in the best position to judge a professor's qualifications no longer have a say—or they are pressured to act in a way that will not turn off the federal spigot.
While hardly advancing the position of minorities and females, affirmative action policies create the impression that hardwon achievements of these groups are conferred benefits. Here and there, affirmative action has caused some individuals to be hired who would otherwise not have been hired, but it is a doubtful gain in the larger context of attaining self-respect and the respect of others.
Nozick's Legal Code
“The Relativity of Injury.” Philosophy and Public Affairs 7 (1977): 60–73.
Robert Nozick's minimal state cannot, in fact, be limited to the functions that he prescribes for it.
This is so because the minimal state emerges before any substantive law, while at the same time it is restricted in its actions to pronouncing and enforcing judicial decisions. Without any preexisting definitions of crimes and torts provided in substantive law, Nozick's minimal state will have no definite criteria upon which to base its decisions.
Natural right—the right not be injured, according to one definition—is too empty and relative a notion to guide judicial decisions. Hence, the state will be forced to make law through interpretation without any restraint upon its powers. But only popular sovereignty can provide such a restraint. Accordingly, the state must be “controlled” democratically by those whom it governs. This is the source of its legitimacy. A priori limitations upon state activities (e.g., First Amendment rights) are justified only as instruments to protect popular sovereignty.
If this argument against Nozick is to be countered, there is a clear need for more exposition of the historical role of the common law and its significance as both an antecedent and an alternative to statutory law.
Legal Justice and Coercion
“The role of Sanctions and Coercion in Understanding Law and Legal Systems.” American Journal of Jurisprudence 21 (1976): 71–94.
Philosophers of law have traditionally regarded coercive sanctions as an essential feature of legal systems. While coercive sanctions may be, to use H.L.A. Hart's phrase, “pragmatic necessities,” conceptually they seem an unnecessary feature of legal systems.
Necessary features of a legal system are those which must hold true if legal systems are “to have a point.” Although it is a complex task to spell out what it means for a legal system “to have a point,” one essential point or purpose of legal systems is to provide an authoritative way of resolving or regulating disputes. In this view, the traditional philosophers of law err when they conceive of laws as requiring enforcement by coercive sanctions. But a legal system is basically a framework to regulate human conduct by means of settling disputes. As such, all that is really required to have a functioning legal system is that it be supported. Law enforcement by coercive sanction is merely one way to support a legal system.
Alternative means of legal support are inducements, popular feeling, and nonlegal institutions such as churches or clans. It may be true that present legal systems rely heavily on coercive sanctions and, given human nature, may always rely on them to some extent. But the presence of such sanctions is not an essential and defining characteristic of law.
The “sanctionist” view of law is some-what linked to the social theories and “hard social realities” of eighteenth and nineteenth century industrial societies. But, hopefully, future theories of law will place less stress on coercion. This change in emphasis may encourage men to think of legal systems as structures which they can use to refine, develop, and augment their capacities. In short, such a change of perspective would lead men to see law as a liberating force that promotes freedom rather than as something which restricts it.
Coercive sanctions do not appear to be a necessary part of the concept of law. We can envision a society that maintains social order less by coercive sanctions than is now the case. Although there is no conceptual reason why legal systems should rely on coercion to the extent they do now, it remains for legal theorists to show how the conceivable can in fact work.
Justice, Punishment, and Deterrence
“Punishment and Crime: A Critique of Current Findings Concerning the Preventative Effects of Punishment.” Law and Contemporary Problems 41 (1977): 164–204.
This critique aims to be a fairly comprehensive survey of the literature concerning the effects of the criminal justice system on crime. First, it discusses studies of the “special effects” of punishment, that is, the effects of punishment upon individual felons. Next, it analyzes recent efforts to study the general deterrent effects of criminal sanctions.
Prison sentences have traditionally been held to have two purposes regarding the convicted felon: rehabilitation and incapacitation. Since World War II, substantial effort and experimentation have been directed at reducing recidivism through rehabilitation programs. With few exceptions, however, these programs have failed. These failures have significantly disillusioned the criminal justice system with the rehabilitative model and indeterminate sentencing.
Interestingly, little support exists for the following arguments that seek to prove how imprisonment increases the crime rate: (1) it stigmatizes inmates and thus makes it harder for them to support themselves legitimately when released; (2) it improves the inmates' crime skills; and (3) it causes them to accept criminal norms of behavior. Further, Ernest van den Haag's studies indicate that even if a felon ceases his crimes against the public through the incapacitation and rehabilitation of imprisonment, there may be no corresponding change in the overall crime rate. Some kinds of crime may be limited more by the number of opportunities available to commit a crime than by the number of individuals willing to commit it. Thus, on van den Haag's analysis, the incapacitation or rehabilitation of one offender may only disrupt the supply of, say, drugs and create an opening for someone else to enter the “business.” As a result, even if incarceration reduces crime by psychopaths, for example, the rates for other types of crime designed to enrich the criminal may not be strongly affected in the long run by incapacitation alone.
Economists have recently studied the general preventative effects of criminal sanctions. They approach crimes as a kind of entrepreneurial activity by felons. Likewise, they view criminal sanctions as a kind of tax on criminal activity. Given this economic model of criminal activity, economists generally expect that crime rates will decline if the law increases the severity of the “tax.” The law may also improve the effectiveness of arrest, reduce the “payoff” to a given crime, or point out an increase in legitimate economic opportunities. Within the economic model, then, the criminal functions as a rational decision maker.
Another, perhaps complementary, model for studying crime deterrence focuses on the socialization of society's members through the criminal justice system. This approach generally regards law-abiding behavior as habitual. An effective criminal justice system (i.e., one that effectively enforces the laws) cultivates this “habit,” whereas a mild or ineffectively applied system of criminal sanctions fails to provide people with incentives for developing the habit of being law-abiding. Most studies rely on the foregoing models for purposes of analysis.
Two kinds of empirical research have been devoted to general deterrence. The first covers statistical correlations between the relationship of criminal sanction “threat” levels to crime rates across jurisdictions or over time. These often have supported the claim that a high probability of punishment inhibits crime rates. To a lesser extent they have also correlated the severity of punishment with general levels of deterrence. But questionable methodology weakens these studies' conclusions as to the strength, or even the existence, of any deterrence mechanism. Among the methodological flaws are inadequate or inaccurate crime statistics; failure to control other crimogenic factors which may distort the deterrence effect; and failure to distinguish adequately the deterrence process from other processes. This last flaw may cause threat levels from criminal sanctions to be negatively related to crime. All the flaws vitiate the usefulness of these studies.
The second kind of empirical research involves “quasi experiments.” These are sudden changes in the law or enforcement policy which may alter the public's perception of the certainty or severity of criminal sanction for some criminal offenses. Despite their lacking the generality of the correlations, such studies offer some evidence that changes in the crime rate arise from changes in the threat level of the criminal justice system.
Justice and Self-Actualization
“Individualism and Productive Justice.” Ethics 87 (1977): 113–125.
A “eudaimonistic” conception of the individual more solidly supports political individualism than does classical liberalism and its modern spokesman, Robert Nozick, in Anarchy, State, and Utopia.
The Greek ethical norm of eudaimonia denotes the condition of living in harmony with one's unique daimon or innate potentiality; as a moral ideal it stresses the irreplaceable, potential worth of each human person. The eudaimonistic view of man entails a larger role for government than does Nozick's “minimal state.” For eudaimonia, the logically prior problem consists of positively developing individuals (by state assistance if necessary); protecting individuals, the narrow role of classical liberalism's nightwatchman state, takes second place.
Several contrasts emerge from comparing eudaimonistic individualism with Nozick's Lockean individualism (along with its social and political consequences). For Nozick, individuality is a quantitative, unalterable, and static fait accompli, embodied in the “fact of our separate existences” or our brute numerical individuality. On the other hand, eudaimonistic individuality is qualitative and seeks the development of human potentiality. To become an individual in the eudaimonistic sense is a moral responsibility.
This last idea of responsibility logically precedes rights. Rights follow from responsibility, just as “ought” implies “can.” Rights are, thus, the entitlements to the necessary conditions of individuality. Such conditions of individuality come into play when we understand individuality as a development. A basic criticism against classical liberalism's fait accompli or static individuality is that it hides this developmental understanding of personal growth.
One necessary tenet of individuality requires that each person be responsible for providing for himself whatever he can. But a developmental conception of individuality acknowledges that the individual may not or cannot provide certain necessary conditions; it views self-sufficiency as an end-condition rather than a beginning-condition. The justification of the state is that it provides opportunities and conditions of individuation which individuals cannot provide for themselves.
Nozick's numerical individuality and “minimal state” concept invite a historical re-run of classical liberalism, with its subjectivism of values and its excesses of amoral egoism. To be viable today, political individualism needs to be inspired by a new and more profound conception of the individual that recognizes ethical and psychological development in persons. A fuller defense of such an alternative may be found in the author's recent book, Personal Destinies: A Philosophy of Ethical Individualism (Princeton: Princeton University Press, 1976).