One of the few subjects on which we all seem to agree is the need for justice. But our agreement is only seeming because we mean such different things by the same word. Whatever moral principle each of us believes in, we call justice, so we are only talking in a circle when we say that we advocate justice, unless we specify just what conception of justice we have in mind. This is especially so today, when so many advocate what they call "social justice"—often with great passion, but with no definition. All justice is inherently social. Can someone on a desert island be either just or unjust?
If social justice can be distinguished from any other conception of justice, it is probably by its reaction against the great inequalities of income and wealth which we see all around us. But reactions against such inequalities are not limited to those who proclaim "social justice." It was not a radical writer, but free-market economist Milton Friedman, who referred to "gross inequities of income and wealth" which "offend most of us" and declared: "Few can fail to be moved by the contrast between the luxury enjoyed by some and the grinding poverty suffered by others."
While such views have often been associated with the political left, many of the thinkers and writers identified as "conservative" have long expressed similar views, objecting not only to economic inequalities but also to extreme inequalities of power and respect. Two centuries ago, Adam Smith, the father of laissez-faire economics, deplored not only the callousness of the rich and powerful of his day, "who never look upon their inferiors as their fellow-creatures," but deplored also our "obsequiousness to our superiors" and the "foolish wonder and admiration" shown toward "the violence and injustice of great conquerors."
Many people claim to support "social justice," but what exactly does that term mean? All justice is inherently social. Can someone on a desert island be either just or unjust?
While a few conservative writers here and there have tried to justify inequalities on grounds of "merit," most have not. The late Nobel Prize–winning economist and free-market champion Friedrich Hayek, for example, declared, "the manner in which the benefits and burdens are apportioned by the market mechanism would in many instances have to be regarded as very unjust if it were the result of a deliberate allocation to particular people." The only reason he did not regard it as unjust was because "the particulars of a spontaneous order cannot be just or unjust." The absence of personal intention in a spontaneous order—a cosmos, as Hayek defined it—means an absence of either justice or injustice. "Nature can be neither just nor unjust," he said. "Only if we mean to blame a personal creator does it make sense to describe it as unjust that somebody has been born with a physical defect, or been stricken with a disease, or has suffered the loss of a loved one."
Others who share a similarly secular view are often driven to personify "society" in order to re-introduce concepts of moral responsibility and justice into the cosmos, seeking to rectify the tragic misfortunes of individuals and groups through collective action in the name of "social justice." Yet this collective action is not limited to correcting the consequences of social decisions or other collective social action, but extends to mitigating as well the misfortunes of the physically and mentally disabled, for example. In other words, it seeks to mitigate and make more just the undeserved misfortunes arising from the cosmos, as well as from society. It seeks to produce cosmic justice, going beyond strictly social justice, which becomes just one aspect of cosmic justice.
As the philosopher Thomas Nagel put it, "the range of possibilities or likely courses of life that are open to a given individual are limited to a considerable extent by his birth"—which includes not only the social class and home environment into which he happened to be born but also "his genetic endowment." This last, especially, is clearly not social. Yet "from a moral point of view," Professor Nagel said, "there is nothing wrong with the state tinkering with that distribution" of life chances, which distribution "does not have any moral sanctity." Thus, in this view, to "provide equality of opportunity it is necessary to compensate in some way for the unequal starting points that people occupy." The difference between Nagel and Hayek in this regard is not in their understanding of the painful inequalities that both recognize, but in their respective conceptions of justice.
Even those few writers who have tried to justify inequalities on merit grounds are nevertheless conceding that inequalities are things requiring justification. Virtually no one regards these inequalities as desirable in themselves. If the world had chanced to be more equal than it is, it is hard to see who would have had any grounds for complaint, much less just grounds.
Nor should we imagine that quantifiable economic differences or political and social inequalities exhaust the disabilities of the less fortunate. Affluent professional people have access to all sorts of sources of free knowledge and advice from highly educated and knowledgeable friends and relatives, and perhaps substantial financial aid in time of crisis from some of these same sources. They also tend to have greater access to those with political power, whether through direct contacts or through the simple fact of being able to make an articulate presentation in terms acceptable to political elites. Moreover, the fact that the affluent tend to have the air of knowledgeable people makes them less likely to become targets for many of the swindlers who prey on the ignorant and the poor.
Even in legitimate businesses, "the poor pay more," as the title of a book said some years ago, because it costs more to deliver goods and services to low-income, high-crime neighborhoods, where insurance and other costs are higher. In short, statistical inequalities do not begin to exhaust the advantages of the advantaged or the disadvantages of the disadvantaged.
With people across virtually the entire ideological spectrum being offended by inequalities and their consequences, why do these inequalities persist? Why are we not all united in determination to put an end to them? Perhaps the most cogent explanation was that offered by Milton Friedman:
A society that puts equality—in the sense of equality of outcome—ahead of freedom will end up with neither equality nor freedom. The use of force to achieve equality will destroy freedom, and the force, introduced for good purposes, will end up in the hands of people who use it to promote their own interests.
Whatever the validity of this argument—and one need only think of the horrors of Stalin, Mao, and Pol Pot to realize that painful possibilities are not mere fantasies—it rejects direct political equalization of economic results because the costs are judged to be too high. Still it finds no positive virtue in inequality. But what of those who do not reject the cost as too high? Do they simply have a different assessment of those costs and risks? Or do they proceed with little or no attention to that question?
A trivial example may illustrate some of the costs of correcting some kinds of inequalities and injustices. In San Francisco in 1996, a relative of one of the city’s supervisors telephoned a pizza company to ask to have a pizza delivered to his home. He was told that the company did not deliver pizza where he lived, which happened to be in a high-crime neighborhood. Immediately there was an outburst of moral indignation. A law was passed, decreeing that anyone who makes deliveries to the public in any part of the city must make deliveries all over the city.
Here, in this simple example, we have all the elements of the quest for cosmic justice. Since most people are not criminals, even in a high-crime neighborhood, large numbers of innocent people have various additional costs imposed on them through no fault of their own—in this case, the cost of being unable to receive deliveries of food, furniture, packages and other things that other people take for granted elsewhere. They are treated unequally. From a cosmic perspective, this is an injustice, in the sense that, if we were creating the universe from scratch, this is not something that most of us would choose to include in it.
Cosmic justice is irreconcilable with personal freedom based on the rule of law.
However, unlike God at the dawn of Creation, we cannot simply say, "Let there be equality!" or "Let there be justice!" We must begin with the universe that we were born into and weigh the costs of making any specific change in it to achieve a specific end. We cannot simply "do something" whenever we are morally indignant, while disdaining to consider the costs entailed. In this case, the increased costs would include dead truck drivers. In American high-crime neighborhoods, the probability that a given young man living there will be killed is greater than the probability that a given American soldier would be killed in World War II. While the odds may not be as great for someone making deliveries there, they may also not be negligible. Nor should we ignore the possibility that an outsider may attract more attention and resentment, resulting in greater risks.
Once we begin to consider how many deliveries are worth how many dead truck drivers, we have abandoned the quest for cosmic justice and reduced our choices to the more human scale of weighing costs versus benefits. Across a wide spectrum of issues, the difference between seeking cosmic justice and seeking traditional justice depends on the extent to which costs are weighed. The enormous difference that this can make needs to be made explicit, so that we do not keep talking past one another on something as important as justice.
Cosmic justice is not simply a higher degree of traditional justice, it is a fundamentally different concept. Traditionally, justice or injustice is characteristic of a process. A defendant in a criminal case would be said to have received justice if the trial were conducted as it should be, under fair rules and with the judge and jury being impartial. After such a trial, it could be said that "justice was done"—regardless of whether the outcome was an acquittal or an execution. Conversely, if the trial were conducted in violation of the rules and with a judge or jury showing prejudice against the defendant, this would be considered an unfair or unjust trial—even if the prosecutor failed in the end to get enough jurors to vote to convict an innocent person. In short, traditional justice is about impartial processes rather than either results or prospects.
Unlike God at the dawn of Creation, we cannot simply say, "Let there be equality!" or "Let there be justice!" We must begin with the universe that we were born into and weigh the costs of making any specific change in order to achieve a specific end.
Similar conceptions of justice or fairness extend beyond the legal system. A "fair fight" is one in which both combatants observe the rules, regardless of whether that leads to a draw or to a one-sided beating. Applying the same rules of baseball to all meant that Mark McGwire hit seventy home runs while some other players hit less than ten. The "career open to talents" or "a level playing field" usually means that everyone plays by the same rules and is judged by the same standards. Again, if the process itself meets that standard, then no matter what the outcome, "you had your chance." But this is not what is meant by those people who speak of "social justice." In fact, rules and standards equally applicable to all are often deliberately set aside in pursuit of "social justice." Nor are such exceptions aberrations. The two concepts are mutually incompatible.
What "social justice" seeks to do is to eliminate undeserved disadvantages for selected groups. As in the San Francisco pizza delivery case, this is often done in disregard of the costs of this to other individuals or groups—or even to the requirements of society as a whole. When one considers a society such as Sri Lanka, where group preferences initiated in the 1950s led to decades of internal strife, escalating into bitter civil war with many atrocities, it is not purely fanciful to consider that other societies may become more polarized and contentious—to everyone’s ultimate detriment—by similar schemes of preferential treatment for one segment of society. Intergroup relations in the United States, for example, have never been as good as they once were in Sri Lanka—nor, fortunately, are they as bad as they later became in Sri Lanka.
Recent history has shown that societies may become more polarized and contentious—to everyone’s ultimate detriment—by schemes of preferential treatment for one segment of society.
In its pursuit of justice for a segment of society, in disregard of the consequences for society as a whole, what is called "social justice" might more accurately be called anti-social justice, since what consistently gets ignored or dismissed are precisely the costs to society. Such a conception of justice seeks to correct, not only biased or discriminatory acts by individuals or by social institutions, but unmerited disadvantages in general, from whatever source they may arise. In American criminal trials, for example, before a murderer is sentenced, the law permits his unhappy childhood to be taken into account. Seldom is there any claim that the person murdered had anything to do with that presumptively unhappy childhood. In a notorious 1996 case in California, the victim was a twelve-year-old girl, who had not even been born when the murderer was supposedly going through his unhappy childhood. It is only from a cosmic perspective that his childhood had any bearing on the crime.
If punishment is meant to deter crime, whether by example or by putting existing criminals behind bars or in the graveyard, then mitigating that punishment in pursuit of cosmic justice presumably means reducing the deterrence and allowing more crime to take place at the expense of innocent people. At a more mundane level, the enormously increased amount of time required to ponder the imponderables of someone else’s childhood (and related speculations) means that the criminal justice system as a whole operates more slowly and that other criminals are therefore walking the streets on bail while awaiting trial in an overloaded court system.
Prosecutors who should be moving on to other criminals after securing a murder conviction must instead spend additional time putting together a rebuttal to psychological speculation. Even if this speculation does not in the end affect the outcome in the case at hand, it affects other cases that are left in limbo while time and resources are devoted to rebutting unsubstantiated theories. A significant amount of the violent crime committed in America is committed by career criminals who are walking the streets—and stalking the innocent—while awaiting trial. This too is one of the costs of the quest for cosmic justice.
Much, if not most, of the concerns billed as "social justice" revolve around economic and social inequalities among groups. But the general principles involved are essentially the same as in other examples of pursuing cosmic justice. These principles have been proclaimed by politicians and by philosophers, from the soapbox to the seminar room and in the highest judicial chambers.
Nobody should be happy with cosmic injustices. The real questions are:
What can we do about them—and at what cost?
What should we do collectively about them—and how much should we leave up to individuals themselves?
The issue is not whether undeserved misfortunes shall be addressed. The issue is whether they will be addressed politically, rather than in the numerous other ways in which they have been, are being, and will be addressed, usually without the high costs, counterproductive results, and dangers to the whole fabric of society that the politicizing of such misfortunes has produced repeatedly in countries around the world. At a minimum, it is necessary to understand the distinction between establishing prospective rules for the behavior of flesh-and-blood human beings toward one another and trying ad hoc to retrospectively adjust the cosmos to our tastes.
Not only does cosmic justice differ from traditional justice, and conflict with it, more momentously cosmic justice is irreconcilable with personal freedom based on the rule of law. Traditional justice can be mass-produced by impersonal prospective rules governing the interactions of flesh-and-blood human beings, but cosmic justice must be hand-made by holders of power who impose their own decisions on how these flesh-and-blood individuals should be categorized into abstractions and how these abstractions should then be forcibly configured to fit the vision of the power-holders. Merely the power to select beneficiaries is an enormous power, for it is also the power to select victims—and to reduce both to the role of supplicants of those who hold this power.
In its pursuit of justice for a segment of society in disregard of the consequences for society as a whole, what is called "social justice" might more accurately be called anti-social justice, since what consistently gets ignored or dismissed are precisely the costs to society.
One of the crucial differences between political and non-political ways of dealing with undeserved misfortunes is that the non-political approaches do not acquire the fatal rigidities of law nor require either the vision or the reality of helplessness and dependency. Nor do they require the demonization of those who think otherwise or the polarization of society. Moreover, the amount of help and the circumstances of help can be tailored to the individual circumstances of the recipients in a way that is not possible when the rigidities of law create "rights" to what others have earned, independent of one’s own behavior or the role of that behavior in the misfortunes being suffered.
Most important of all, attempts at bettering the lot of society in general, as well as the unfortunate in particular, need not take the form of direct aid at all. Rather, these efforts can more effectively take the form of creating economic and other circumstances in which individuals can themselves find "life, liberty and the pursuit of happiness." Such an approach does not seek to feed the hungry but to establish conditions in which no one has to be hungry in the first place, circumstances in which there are jobs available for those willing to work. Its emphasis is not on helping those in poverty but on getting them out of poverty and preventing others from falling into poverty.
We need to understand the distinction between establishing prospective rules for the behavior of flesh-and-blood human beings toward one another and trying ad hoc to retrospectively adjust the cosmos to our tastes.
Economic development has been the most successful of all anti-poverty policies. It was not very long ago, as history is measured, when such things as oranges or cocoa were the luxuries of the rich and when it was considered an extravagance for the president of the United States to have a bathtub with running water installed in the White House. Within the twentieth century, such things as automobiles, telephones, and refrigerators went from being luxuries of the rich to being common among the general population, all within the span of one generation.
Material well-being is of course not everything. Justice matters as well. But, whatever one’s vision of a just world, what is crucial is to recognize that (1) different visions lead to radically different practical policies, that (2) we shall continue to talk past one another so long as we do not recognize that cosmic justice changes the very meaning of the plainest words, and that (3) whatever we choose to do, it should be based on a clear understanding of the costs and dangers of the actual alternatives, not simply the heady feeling of exaltation produced by particular words or visions. Recognizing that many people "through no fault of their own" have windfall losses, while those same people—and others—also have windfall gains, the time is long overdue to recognize also that taxpayers through no fault of their own have been forced to subsidize the moral adventures which exalt self-anointed social philosophers. Victims of violent crimes have been forced to bear even more painful losses from those same moral adventures.
There is no question that a world in which cosmic justice prevailed would be a better world than a world limited to traditional justice. However, it is one thing to rail against the fates, but no one should confuse that with a serious critique of existing society, much less a basis for constructing a better one.
There is an ancient fable about a dog with a bone in his mouth. He looked down into a pool of water and saw a reflection that looked to him like another dog with another bone—and that other bone seemed to be larger than his bone. Determined to get the other bone instead, the dog opened his mouth and prepared to jump into the water. This of course caused his own bone to drop into the water and be lost. Cosmic justice is much like that illusory bone and it too can cause us to lose what is attainable in quest of the unattainable.