• Josh Lewis

The Spice of Life – Part 5 (Justice vs. Social Justice)


These days, no discussion on political equality and variety would be complete without turning to the subject of social justice. I hope to have demonstrated—in Part 4—that one of the conservative’s chief complaints against calls for social justice is the sheer impossibility of pursuing an ill-defined notion of justice where the outcome is unknown and, likely, unknowable. But there is still far more to say on the matter.


In Part 1 we examined the Leftist belief that all classes or groups would be equal in incomes and outcomes in the absence of somebody doing somebody wrong—what Thomas Sowell said would be his choice if there were a contest for the most stupid idea in politics.The following picture—I believe—helps us visualize the Left’s view of equality, equity, and justice:

While the moral portrayed above may appear agreeable enough, what’s missing is a critical view of some inherent assumptions. It is true we are not all equal—a fact that’s hardly in dispute and seems adequately depicted here as three kids of varying heights. But what is meant by those three boxes? Are they voluntarily provided? Is it assumed that, unless some external force gives two boxes to the shortest kid and one to the kid in the middle, these kids would be incapable of arranging the boxes as they have in the middle panel?


And is it at all reasonable to apply this visual to an economic system or societal order? We may be able to arrive at some consensus about how to “fairly” divvy up three boxes to the kids shown above. But it doesn’t follow we’re equally capable of coming to some agreement on how much people ought to be paid or recognized or rewarded. All of this, of course, has been addressed in one manner or another in the previous posts. But what about that last panel? What assumptions are baked into the idea societal “support” or “accommodations” would no longer be needed if we simply removed the “systemic barriers” that supposedly led to inequality in the first place? In other words, who put the fence there, “the system” or human nature?


“Fixing” Human Nature

Let me suggest another picture that comes closer to depicting the moral as it would be applied to actual reality:

And there you have it. We can establish perfect equality without bothering with “support” or “accommodations” just by making everyone the same height. Problem solved!


The beauty of the picture above is that it captures the same idea as the first picture, but it—more accurately—suggests that the causes of inequality are not quite so easily discernible or altered or—most importantly—unjust. If we’re talking about tearing down “the system”—represented by a fence—why, that’s at least theoretically possible. But if we come to recognize that “the system” is no more responsible for the height of these kids as it is for what produces a multitude of other varieties, the only way equality could truly be established would be to alter human nature itself.


“There always must remain some individual deprivation or scarcity, which we are too prone to call ‘injustice,’” noted Russell Kirk, “We are not perfect or perfectible creatures; and if we would be in harmony with Nature, we must not damn the nature of things.” The conservative celebrates the varieties found in all life. Forcibly altering these natural variations that—again, naturally—lead to inequalities is not only impossible but destructive to the very nature of our humanity. This idea seems intolerable to some. Surely, the existence of inequalities must point to some injustice! But what is justice?


Defining Justice

Kirk defines justice as “the act of right distribution, the giving to each man his due.” Sounds simple enough. But he goes on to suggest that this definition is meaningless on its own as it “requires further definition of right and due.” The anonymous conservative blogger Philosophical Conservatism approached the question from a legal framework: “Justice is a legal concept. Defining it in a legal sense is a simple matter, we need only look at what is written within the body of the law itself and ask ‘Do the rights, privileges and duties outlined here apply equally to every individual?’ The legal definition of justice is straightforward.”


But is that what the Left means by justice? Certainly not. The language and imagery of justice is often couched in a moral, not merely a legal, framework. That is, justice is a virtue which should be pursued with passion. Any limitations on justice would be an injustice. The stuffy, legal definition just won’t do as it doesn’t compel us to go about proactively addressing injustices. It only tells us what is or is not just according to the law and restricts our actions to law enforcement and the judicial process.


“If justice is a virtue, it’s a strange one,” writes political commentator Noah Rothman in his book Unjust, “It is not doled out by the charitable, and its recipients are not obliged to be grateful upon its delivery. If justice is giving each man his ‘due,’ then those who are owed justice may seize it—by force, if necessary. But who determines what is ‘due’ to someone? That’s a moving target.” Here again, we run into Kirk’s dilemma of defining right and due. The conservative agrees that justice is a virtue and more than merely a legal concept. But it does not follow that this virtue is to be imposed by the State any more than the State should force us to love each other, not be greedy, or behave with temperance.


Defining Social Justice

The attempt to enforce some conception of justice as a virtue—not just as a legal matter—is what we might call social justice. But while justice in a legal sense is easily defined, social justice is not. “The idea of ‘Social Justice’…takes this concept out of its original legal context and attempts to apply it in an area for which it was not designed: society in general,” continues the Philosophical Conservatism blogger, “While legal justice is easily defined as the equal application of the law (whatever that law may be) Social Justice is a sort of phantom for which no clear objective definition truly exists.”


This point bears repeating; social justice is meaningless for the sufficient reason we can’t settle on a definition. As economist F. A. Hayek put it, “everyone talks about social justice, but if you press people to explain to you what they mean by social justice…nobody knows.” Even where someone might believe they understand perfectly what social justice means, there “perfect understanding” would hardly match the definition given by the next person who believes they know perfectly well how social justice should be defined. Hayek believed this was because our language had been poisoned by a multitude of “weasel words” which attempted to convey a sense of duty and failed to define anything specific in the process. He noted that the simple word “social”:

“…has probably become the most confusing expression in our entire moral and political vocabulary…The confusion that it spreads, within the very area wherein it is most used, is partly due to its describing not only phenomena produced by various modes of cooperation among men, such as in a ‘society’, but also the kinds of actions that promote and serve such orders. From this latter usage it has increasingly been turned into an exhortation, a sort of guide-word for rationalist morals intended to displace traditional morals, and now increasingly supplants the word ‘good’ as a designation of what is morally right…factual and normative meanings of the word ‘social’ constantly alternate, and what at first seems a description imperceptibly turns into a prescription.”

Notice here again is the implicit idea that there’s something wrong with “the system” but no clear directive what we are to do about the matter or who, specifically, is to blame. If a legal injustice is committed—say, if Tom robs Jack at gunpoint—we can follow the legal framework to render justice on Tom and for Jack. But if Tom belongs to a class that earns more than Jack’s class, what do we do to change “the system” that imposed this “injustice”? Is everyone in Tom’s class equally guilty and everyone in Jack’s class equally victimized?


It is true there is more to justice than merely identifying what is legal and what isn’t. There was an era in which slavery was perfectly legal in parts of the United States, but that hardly made slavery “just”. Yet a distinction can be made between questions of justice that touch on fundamental ideas of what it means to be human, the limitations of State power, and our duties and obligations towards one another as fellow human beings and questions of justice that speak to an ideologically driven preconceived (and unproven) notion of what an ideal society should look like.


“Most policy questions do not rise to the level of fundamental matters of justice,” argues Yuval Levin, “But those that do will require special attention and urgency because they present something of an unprecedented challenge, for which the constitutional tradition is not well suited.” In other words, fundamental questions of justice are very rare, and highly problematic. Slavery was a fundamental question of justice and many lives were lost in this country before the matter was ultimately settled. Slavery turned on the question of whether some humans were not equal to other humans.


But what of the question of societal equality? Does justice mean taking from those who belong to Tom’s class and giving it away to Jack’s class? Can white America achieve “justice” by apologizing for their whiteness and offering reparations to black America? Not so, argues Roger Scruton, for “duties of charity are not duties of justice.” Justice requires duty, not civility or generosity. “If we fail to perform a duty of justice we commit an injustice—in other words, we wrong someone.” Slavery is an injustice because it wrongs those who are enslaved and degrades those who own slaves. But the accident of our birth into a class or race does not create an injustice. It was that line of thinking that justified slavery in the first place.


The State plays a role in administering justice, but it’s a necessarily limited role. As Kirk put it, “government is instituted to secure justice and order, through respect for legitimate authority; and if we ask from government more than this, we begin to imperil justice and order.” I think this idea becomes clear if we pull away from the State and look elsewhere for examples. In nearly every institution we inhabit, there are roles within those institutions that speaks to justice, just as there are areas that would be totally unjust for the institution to meddle in. We may turn to our employer to settle a matter of unfair treatment by a supervisor, but we don’t ask them to settle a dispute in our marriage.


Justice as Such

There is a distinction to be made between justice as a moral concept—what historian Garry Wills calls “justice as such”—and the limited justice pursued within institutions. As Wills explains:

“The particular aim of the state is not to achieve justice, and certainly not to dispense it…This, of course, does not mean that the state is to be unjust, or free of the imperatives of the moral law. The state, like the family, like the corporation, like the labor union, is bound by the laws of morality that are incumbent on all human endeavor, corporate as well as individual. In carrying out its function, the state must act with justice. But its specific aim is not to enforce justice as such. The family, too, must observe right order—the child obeying, the parent avoiding undue laxity or severity; husband and wife helping each other, yet observing measure in their demands upon each other. This due measure, this order of right, is achieved by the observance of justice; yet the formal aim of the family is not sheer justice as such. Its aim is to give birth and education to new members of our race, to recruit partners in the human adventure. Only when this purpose is clearly understood can the order of claims and the areas of just activity be discerned in the life of the family. In the same way, the state must observe justice in its activities; but its aim is more limited, more concretely specified. And unless that aim is made clear, there is no way of knowing what justice is for the state; politics becomes an instrument for seeking every kind of good thing, for bringing ideal justice itself down to earth.”

As I’ve said so often in other posts, it isn’t necessary to be a theist to be a conservative, but it can sure help. If we accept that justice as such is not the role of the state, then we are left wondering how justice must ultimately come about. “To me belongeth vengeance and recompence,” God assures us in the Book of Deuteronomy. Thus, the theist may trust that ultimate justice belongs to God. In a purely materialistic world, however, it can be tempting to believe that—unless the state is capable of enforcing justice as such—we must simply accept that justice can never be truly realized in an ultimate sense.


What then is the role of the state in regard to justice? Yuval Levin wrote that the just state “provides space for thriving private lives and a thriving national life within the bounds of the constitution by allowing for some balance of order and freedom.” This balancing provides a framework whereby the complex web of institutions within the state have the greatest potential for cultivating virtues, including the virtue of justice. “Political life occurs within that space,” Levin continues, “and political change sustains and defends that space and therefore moves in various directions as events warrant—sometimes restraining or strengthening one element of the constitution, and sometimes another.” In this manner, the state may play a limited function in the pursuit of justice, but if the state pursues justice as such the careful balance of order and freedom is shattered.


“The state, when it is made the source of justice,” Wills adds, “must be equally and instantly available to all citizens; and, in achieving this, in sweeping away the confusion of claims raised by families, economic orders, educational conventions, codes of conduct, natural gradations of privilege, the Liberal leaves society atomized, each man isolated, with all the weight of political power coming unintercepted upon him.” The conservative’s antenna goes up anytime the state is invoked as the solution to a problem. At times the state is the solution, but far too often it’s only capable of making a bigger mess of the situation. The heavy hand of the state cannot provide justice as such and we are further than ever from “justice” when the state takes on the mitigating roles of the institutions Wills mentions. The same power exercised by the state to end slavery can be used to enslave if limitations are not imposed on the state.


When Social Justice Turns to Revenge

Up to this point, we have been considering the notion of achieving “social justice” by establishing equality or by removing the alleged “systemic barriers” that caused inequality in the first place. But some social justice advocates go further still. For, they argue, the injustices perpetrated by “the system” are so egregious that it’s not enough to simply make things equal as they ought to have been all along. It’s no longer adequate to take from Tom and give it to Jack so that they’re even because Tom has had it far too good for far too long. Justice demands that we make Tom and Jack uneven to settle the score. “To me belongeth vengeance and recompence,” saith the State.


“In the eyes of some of its advocates, social justice is a way of addressing grievances that can’t be adjudicated by a legal system that is blind, by design, to historical injustices suffered by groups,” explains Rothman. If it’s true that inequalities are a result of injustice, is it really that far of a leap to begin looking for someone to punish? And if it’s true that the fault lies with neither human nature nor responsible individuals, is it really that much of a stretch to oppose a justice system that seeks to apply the law equally? Wouldn’t justice demand punishing the group or class or race or gender that was responsible for building “the system” in the first place?


Clearly, we are far from the conservative’s understanding of justice and equality when “justice” is no longer blind nor interested in balance as understood between individuals. In the view of social justice warriors, Lady Justice is a ruthless vigilante more interested in retribution than reconciliation. “Modern social justice advocates have no interest in a colorblind society,” continues Rothman, “Nor would they accept the notion that just institutions can be trusted to maximize collective benefit. They are suspicious of institutions in general, in fact, since those institutions are invariably the flawed inventions of corruptible men. They are unconvinced that perfect equality is desirable…because such a naïve ideal ignores historical injustices. We must all bear burdens that are passed on to us at birth by our parents. These are obligations we cannot shrug off, no matter how hard we try.”


Centuries before these “modern social justice advocates” found fault with a blind judicial system, the ever-prescient Edmund Burke wrote of the folly in this mindset: “It is not very just to chastise men for the offences of their natural ancestors; but to take the fiction of ancestry in a corporate succession, as a ground for punishing men who have no relation to guilty acts, except in names and general descriptions, is a sort of refinement in injustice.” In other words, a great injustice is committed when we dole out punishments on entire groups based on the accident of their births. The driving motive behind such efforts is revenge, not the pursuit of justice.


None of this is meant to suggest the conservative ignores the cries of those who have genuinely been wronged. Nor does it mean identifying inequalities and discrepancies between groups are of no value or cannot point to instances of injustice. But the conservative will always seek to move these generalizations to specifics that can be used to comprehend who—that is, which individuals—are responsible, what actions they have taken or not taken, and who they have victimized. In so doing, the conservative hopes to preserve the variety of life that allows each of us to flourish while working to eradicate injustices. Justice and variety, not retribution and equalizing, are the spice of life.