The Good, the Bad, and the Just

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When Prescott College, my alma mater, switched its educational emphasis from experiential learning to “environment and social justice,” it asked students, faculty, and alumni to summarize their concept of social justice in just two words.

My first instinct was to respond, “Free markets.” This was because the focus of social justice advocates is to use the power of government to enhance access to goods and services for the “left behind,” the “have-nots,” the “disadvantaged,” the “underprivileged,” the “marginalized,” etc., terms that are fuzzily subjective, and which encompass a broad swath of people including the homeless, the physically or mentally disabled, the low-income, et alia — in other words, those somewhere near the tail end of a bell curve because, in the advocates’ minds, they suffer from “unfair” income distribution. People who think in this way seem unaware that free markets are the most efficient conduit for providing the greatest number and selection of goods and services to the greatest number of people for the least cost on a voluntary basis. Imperfect? Yes, but only if you’re a believer in Plato’s realm of the “ideal,” a realm far removed from reality.

But I was feeling even more provocative, so instead I answered, “Due process.”

I don’t think that’s what they expected to hear — even from a crank like me.

These people seem unaware that free markets are the most efficient conduit for providing the greatest number and selection of goods and services to the greatest number of people for the least cost on a voluntary basis.

 

According to Dictionary.com (in this case, as good a source as any), social justice is “justice in terms of the distribution of wealth, opportunities, and privileges within a society.” Against all good usage, Dictionary.com includes the noun itself in the definition, probably, I suspect, because there is no simple synonym for the word justice in this context. But here I want to focus first on that noun, justice, since it is the more important component in the phrase social justice.

Justice exists in two forms: philosophical and statutory — both in the framework of a government and in the particulars of its justice system — with the statutory an applied version of the pure philosophy. The broader, philosophical approach is an attempt to define what is fair and equitable in life. Those of a religious bent easily — and mostly — base their concept of justice on their religious beliefs. On the other hand, nonbelievers face a tougher intellectual incline. Many resort to instinct, coming up with vaguely conceived ideas of what seems fair, ideas that, without deeper investigation, they believe to be self-evident or just based on “common decency.” They ignore Jimmy Carter’s wise observation that “life is unfair” in hopes that they can reverse the unfairness through any number of interventions. Ironically, many in the nonbeliever cohort unknowingly and unconsciously base their ideas on religious beliefs, beliefs that they might expressly eschew but with which they grew up and which permeate our culture.

“Natural rights” theory, a judicial philosophy, is a good example not only of the latter, statutory aspect of justice, but also of concepts of justice explicitly based on religious ideas. To believers, natural rights are endowed by our creator — who may not be specified — while to the secularists, these rights are just a product of being alive and are inherent in all people. No proof is provided — it’s simply postulated.

Ironically, many in the nonbeliever cohort unknowingly and unconsciously base their ideas on religious beliefs, which permeate our culture.

 

The problem with this philosophical-judicial approach is that, simply, it doesn’t work. As I explained in “Marshall v. Jefferson” (and in spite of our Constitution’s 9th and 10th Amendments), those rights that are not enumerated in our Bill of Rights, are generally not protected by our courts. And even those that are enumerated have been the subject of many battles. To sum up: our rights are not endowed by an imaginary being; they are endowed by us, upon us. The best way of protecting them is through statutory law. Hence my heuristic response: due process — since there is no universal, objective standard of justice, much less social justice.

* * *

The above analysis leads to the counterintuitive conclusion that there is no higher justice than the results of due process, even when — for a variety of reasons in a number of cases (the OJ Simpson trial, say; or the wrongful conviction of an innocent person) — the outcomes don’t seem right. In such cases, it is up to us to correct and improve the details of due process.

Philosophers, on the other hand, aim for irrefutable and logical conclusions, free of untested beliefs. Moral philosophy (the branch with which we are concerned) must not conflict with any relevant scientific findings and gains credibility by at least nodding to the relevant scientific disciplines of sociobiology and evolutionary psychology (while eschewing the now-discredited pioneering efforts of Freud, Jung, and Durkheim).

Animal behavior studies indicate that most primates, along with canines, corvids, and some other species, have an aversion to “inequity” — in this case, “inequity” expressed through unfavorable responses when rewards (goodies, if you will, irrespective of how they are acquired) are perceived not to be equally distributed, whether detrimentally or — surprisingly — advantageously. When some animals are given more than their peers, the bonus beneficiaries show displeasure. Humans too show an innate sense of fairness, which has been detected in children as young as three. Of course, the devil is in the details. Exactly how fair is an exchange? Or the contribution in a cooperation? Although a general sense of fairness seems to be innate, its exact extent and boundaries vary subjectively.

Might envy or jealousy be a contributing factor? A sense of individual dignity? Nowadays when studying animals, anthropomorphism is no longer frowned upon in ethology; after all, we’re all part of the same phylogenetic spectrum. Anger, happiness, and many other emotions are often obviously discernible in animals.

Of course, the devil is in the details. Exactly how fair is an exchange?

 

My favorite story, only marginally apropos, comes from the Gombe Stream Research Center in Tanzania. The researchers there placed a bin of bananas close to an observation post so as to attract and keep the chimps in the area in order to facilitate the study of their behavior at close range. Notwithstanding the free food, a bonanza that might seem intrusive to a purist researching behavior in the wild, the bin provided interesting insights into chimpanzee character.

The chimps often arrived in the morning. In spite of some status issues — mostly dealing with priority — the self-distribution of the bananas was by and large problem-free. One day the researchers put a rubber snake in the bin. Now, chimpanzees are terrified of snakes. Though it might seem a sick practical joke for Homo to play on Pan (which, by the way, it is), the novel experiment yielded some interesting stuff.

By chance, the following morning a solitary young adult male appeared. Did he want to bypass the status queue? Was he particularly greedy, hungry? Did he not have a sense of “fairness”? Upon opening the bin and seeing the snake, he jumped back in panic, letting the lid slam shut. Instinctively he hid behind a tree. The researchers observing him could see his mental wheels churning. They intuited that the bananas were too much of a temptation and he was trying to figure out a way to get them.

The chimp came out from his hiding place, picked up a stick, approached the bin, slowly opened the lid, and poked the rubber snake. It didn’t take long for him to realize it was not a real snake. Up to this point, the chimp’s behavior wasn’t far from predictable. It was what he did next that amazed the researchers.

The young adult left the snake in the bin and resumed his hiding place behind the tree. He impishly awaited the appearance of the other chimps. When they arrived, opened the lid, saw the snake, and jumped back in panic screaming bloody hell, the scheming chimp jumped out from behind his cover laughing uproariously at his practical joke.

The researchers observing him could see his mental wheels churning. They intuited that the bananas were too much of a temptation.

 

What to make of this? An episode of The Little Rascals? Well, yes . . . but an amazing insight into the mind of a chimp: not just an ability to plan and predict a sequence of events he had set in motion, but a real sense of humor, within the boundaries of his group dynamics, indicating a level of sophistication previously unimagined.

Here is another anecdote, closer to our topic of justice, which never fails to move me profoundly, especially since I’ve done fieldwork with gorillas. In 1996, ABC News reported that in Illinois, a female gorilla rescued a 3-year-old boy who had fallen nearly 20 feet into her enclosure. As ABC recounts:

The 8-year-old gorilla named Binti Jua made worldwide headlines when she carried a boy to safety after he slipped away from his mother and climbed through a barrier at the Western Lowland Gorilla Pit at the Brookfield Zoo on Aug. 19, 1996.

 

Video shows the boy lying on the ground before Binti Jua gingerly picks him up around the waist, carrying him to a door where rescuers waited as a crowd looked on. There were six other gorillas in the exhibit at the time.

 

The gorilla carried her own 17-month baby named Koola on her back throughout her encounter with the boy, which may indicate that her maternal instincts led her to rescue him.

 

The boy suffered a broken hand and cuts to his face and spent four days at the hospital.

Maternal instincts? Sure . . . but we shouldn’t exclude compassion, empathy, and even a sense of justice for the little boy. It was not an isolated incident. Here is another, earlier account, from Wikipedia:

On 31 August 1986, five-year-old Levan Merritt fell into the gorilla enclosure at the Jersey zoo and lost consciousness. Jambo, a silverback male gorilla, stood guard over the boy when he was unconscious, placing himself between the boy and other gorillas in what ethologists analyze as a protective gesture. He later stroked the unconscious boy’s back. When the boy regained consciousness and started to cry, Jambo and the other gorillas retreated . . . and the silverback led them into a small hut in the corner of their pen. A paramedic and two keepers rescued the boy. Most of the incident was recorded on home video, and extensively photographed by zoo visitors. The publicity on major news channels and newspapers helped ease public fears about the potentially violent nature of gorillas.

Jambo was not moved by a maternal instinct. Paternal instinct? Perhaps, but I’d put my money on compassion, empathy, and a sense of justice.

All the evidence indicates that, whatever cultural influences helped give it form, our sense of justice is innate — no doubt a trait selected for its survival benefits. But it still lacks specificity for widespread application in a polity. It is up to us to define it and provide a road map for achieving what we decide.

* * *

Michael J. Sandel, political philosopher and Professor of Government at Harvard, jumped into this morass with a book that is not recent but deserves to be (critically) considered by readers of this journal, who will probably enjoy the experience. It’s the very readable (and fun), Justice: What’s the Right Thing to Do? Reviewed by The Economist as a notable book, it made the biggest impact in China where Sandel was treated as a rockstar. His lectures at Chinese universities drew overflow crowds.

Evan Osnos in Age of Ambition: Chasing Fortune, Truth, and Faith in the New China describes the zeitgeist at the time: “To live in China in the early years of the twenty-first century was to witness a spiritual revival that could be compared to America’s Great Awakening in the nineteenth century.” There was a hunger for deeper truths. With free markets satisfying their basic needs, the people had the luxury to contemplate issues beyond whence the next meal might be forthcoming. China Newsweek named Sandel the “most influential foreign figure” of 2010.

Maternal instincts? Sure . . . but we shouldn’t exclude compassion, empathy, and even a sense of justice for the little boy.

 

Justice: What’s the Right Thing to Do? grew out of his introductory course on justice at Harvard. As The Economist points out, “His lectures are a hot ticket on campus, and on reading them in book form, it is not hard to see why. His book should appeal to anyone who likes to argue political rights and wrongs, but is not necessarily up on the lore and language of contemporary philosophy.”

Sandel brings abstruse-sounding ethical puzzles down to earth with vivid examples taken from the news: price gouging, affirmative-action programs, large bank bonuses paid with public money, assisted and unassisted suicide, organ sales, surrogate pregnancy for money, and other moral conundrums. Are such practices unjust? If so, why? Are they morally wrong?

Each chapter tackles one moral philosophy or philosopher in such a way as to build on the previous chapter, working toward a conclusion that outlines what Sandel considers the minimum requirements for a just society. At the end of each section, he discards what he perceives as shortcomings and inconsistencies in various philosophies. For this process he filters the possible consequences of each philosophy through Immanuel Kant’s smell test, the categorical imperative: “An unconditional moral obligation which is binding in all circumstances and is not dependent on a person’s inclination or purpose” (Again, Dictionary.com). For readers of Liberty, what is notable in Sandel’s approach is his sympathy for and analysis of libertarianism.

He starts out strong. Right on page one he recounts the many incidents of price gouging in Florida after Hurricane Charley, and the outrage they elicited. But he goes on to explain — quoting economist Thomas Sowell — how those exorbitant prices actually helped relieve shortages of ice, bottled water, generators, repair materials, and other items in high demand by incentivizing producers and individual arbitrageurs to get scarce resources down to Florida faster than FEMA could, ultimately flooding markets and bringing prices down.

What is notable in Sandel’s approach is his sympathy for and analysis of libertarianism.

 

Since most readers would probably find price gouging morally repulsive, this is a provocative opening. Yet, Sandel goes further by arguing that price gouging is not immoral; that in free markets prices are set by supply and demand (in other words, by producers and consumers); that there is no such thing as a “just price”; that it isn’t unconscionable to charge what the market will bear; and that the price levels one is used to are not morally sacrosanct. In other words, prices in free markets have nothing to do with morality. But the inverse — prices set by government fiat, often through punitive legislation against “price gouging,” usury laws, and any number of other dirigiste mechanisms — is morally questionable. Clearly, Sandel believes free markets are a prerequisite for a just society . . . although he has some reservations, which I’ll bring up later.

The practical aspects of free market pricing logically lead Sandel into a chapter on utilitarianism in one of its forms — the doctrine that actions are right if they benefit a majority (an idea most famously argued by John Stuart Mill and Jeremy Bentham). Sandel finds free markets to be in concert with utilitarianism’s broad objectives of benefiting the greatest proportion of a population. But it doesn’t take long before he finds fault with utilitarianism’s premise: a reliance on vox populi as moral arbiter, often at the expense of minorities. He dedicates his third chapter to a more in-depth exploration of libertarianism — with its emphasis on individual rights — through the works of Robert Nozick, Friedrich Hayek, and Milton Friedman.

He does an outstanding job. Which is why his later, glib rejection of libertarianism as an overall organizing structure for society based on only two examples is surprising. His rejection of libertarians’ acceptance of suicide is based on his interpretation of the categorical imperative: If it is wrong to take a person’s life, it is wrong to take one’s own life. My counter to this specious argument is an analogy with theft: It is wrong to steal another’s property, but one cannot steal what belongs to oneself. One can use or destroy that property, just as one wishes. Ergo, taking one’s own life is not violating anyone’s rights — that life belongs to its owner.

Since most readers would probably find price gouging morally repulsive, this is a provocative opening.

 

I can’t help but intuit a certain vestigial religiosity in Sandel’s logic: one’s life isn’t one’s own; it belongs to God, who created it. But perhaps it has deeper Kantian roots. Kant’s big project (he was religious after all) was to reconcile faith and reason. The Enlightenment, of which he was a part, was sundering the two.

Sandel’s second argument against libertarianism is based on an obscure 2001 German case concerning cannibalism between consenting adults. It is worth quoting Sandel’s account in depth:

In 2001 . . . Bernd-Jurgen Brandes, a forty-three-year-old software engineer, responded to an Internet ad seeking someone willing to be killed and eaten. The ad had been posted by Armin Meiwes, forty-two, a computer technician. Meiwes was offering no monetary compensation, only the experience itself. Some 200 people replied to the ad. But when Brandes met with Meiwes and considered his proposal over coffee, he gave his consent. Meiwes proceeded to kill his guest, carve up the corpse, and store it in plastic bags in his freezer. By the time he was arrested, the “Cannibal of Rotenburg” had consumed over forty pounds of his willing victim, cooking some of him in olive oil and garlic.

 

When Meiwes was brought to trial . . . the lurid case confounded the court. Germany has no law against cannibalism. The perpetrator could not be convicted of murder . . . because the victim was a willing participant in his own death . . . The court attempted to solve the conundrum by convicting Meiwes of manslaughter and sentencing him to eight-and-a-half years in prison.

An appeal court later increased his sentence to life imprisonment. While serving his expanded sentence, Meiwes became a vegetarian on the grounds that factory farming is inhumane.

I won’t attempt to parse this incident as a valid example of libertarianism in practice. Readers can come up with their own take on the grisly tale. However, it is thin gruel on which to discredit classical liberal political philosophy.

Sandel then proceeds with a chapter on “Markets & Morals,” which includes entertaining and valuable discussions on conscription, the volunteer army, pregnancy for pay and, more broadly, informed consent. Later chapters continue examining controversial contemporary issues in thoughtful riffs: affirmative action, loyalty (think Robert E. Lee), the moral neutrality of government, patriotism, abortion, stem cells, and same sex marriage.

These are followed by a deeper dive into Immanuel Kant’s moral philosophy as it applies to rights, justice, and a social contract. For those of us who are curious to understand why this impenetrable German is such a giant of the Enlightenment, Sandel, better than anyone else I’ve read, actually makes Kant colloquial . . . if not fun.

Through no fault of his own, Rawls infected first one brother with diphtheria and then the other with pneumonia. Both died.

 

And then there is John Rawls. Though Sandel’s chapter on Rawls is not at the end of the book, it is clearly its climax. Rawls (1921–2002) was an American moral and political philosopher who taught at Cornell, Harvard, MIT, Princeton, and Christ Church in Oxford. In his extremely influential 1971 book, A Theory of Justice, he proposes a thought experiment to influence how we think about a just society. It is essential reading in political science courses.

According to Thomas Pogge, his biographer, Rawls was deeply affected early on by the death of his two brothers. Through no fault of his own, Rawls infected first one brother with diphtheria and then the other with pneumonia. Both died of the infections. He became a devout Episcopalian and wrote a deeply religious senior thesis, but later became an atheist after experiencing intensive trench warfare and brutality during WWII in the Philippines. According to Ian King, a scholar at the United States Military Academy at West Point, the spark for A Theory of Justice was probably ignited in postwar Japan, where the US Army was challenged with designing new social and political authorities, “imagining away all that had gone before.”

Rawls, intrigued with the idea of creating a just society from scratch, posited two essentials for such a society: liberty and equality. However, he realized that these two fundamentals were usually considered to be in conflict with each other. Liberty could lead to inequality, while equality could squelch liberty. Rawls distinguishes between equality of opportunity and equality of outcomes, positing the first as essential and the latter as aspirational. Much of his work was dedicated to reconciling liberty and equality, with an emphasis on achieving a low Gini coefficient (a measure of a society’s economic inequality) through some degree of redistributive policies, in order to achieve a measure of “social justice.”

So he came up with a thought experiment labeled “the original position,” in which a group of persons is set the task of designing a society with a political and economic structure they all could agree on. However, participants would argue and design behind a “veil of ignorance” — ignorant of their own talents, education, class, sex, race, wealth, religion or any other attribute they might end up with. They would be born into this “ideal” society not knowing which of those attributes they would have or to what degree. They would thus be perfectly objective and fair.

It’s an intriguing and thought-provoking exercise. Sandel, among others, believes that the exercise inevitably leads to a liberal, free market society with a redistributive component, a conclusion which leads many commentators to opine that we’re all Rawlsians now.

Perhaps . . . but there are a couple of off-key notes in this version of “Kumbaya.” One is the level of abstraction of the thought experiment. The other is the fuzzy definition of fairness that undergirds the redistributive component. First, the level of abstraction.

Philosophers can be divided into realists and idealists or, following the earliest examples of these approaches, Aristotelians and Platonists. Plato famously came up with his “realm of the ideal.” My first exposure to this line of thought was the concept of the “ideal tree”: the theory that the fundamental nature of a tree is independent of its physical form. This abstraction from reality exemplifies Plato’s Theory of Forms or Doctrine of Ideas: only ideas encapsulate the true and essential nature of things, in a way that the physical form cannot. Aristotle, on the other hand, held that only studying the actual and apparent world could inform us about the true nature of reality.

Rawls’ redistributionism penalizes some people’s intention to work while rewarding other people’s intention not to work, considering them both merely “givens.”

 

This chicken and egg poser is easily unraveled. Of course, it is actual trees that lead us to the generalization expressed in the word tree. That word did not miraculously appear in our vocabulary and then give rise to our stately neighbors. Plato was influenced by his knowledge of geometry, in which an ideal form, say a triangle, can be realized, a derivation from the idea. However, even the perfections of geometry can fall short when applied to real world situations. For example, the land survey system used in the United States, in which land is subdivided into thirty-six square-mile rectangles labeled townships and then into thirty-six sections of, ideally, one square mile each. Perfect squares don’t fit irregular landforms perfectly. Nor do they reflect the curvature of the earth. So the eleven northernmost and westernmost sections of townships are allowed to deviate, as conditions dictate, from the designated 640 acres they’re supposed to encompass.

The same problem arises when Rawls’ ideal person, the one with no human traits — sex, class, race, intelligence, etc. — is supposed to design a society from scratch. Without these traits people are not biological entities, just disembodied abstractions that cannot ideate anything. Didn’t Rawls realize that we are inextricably defined — within broad boundaries — by our genetic and acquired traits? Without these we are nothing. More fundamentally, how can people without knowledge or experience exemplify a social contract? (Is this an argument for or against extending the franchise to 16-year-olds?) It’s almost as if Rawls thinks that deleting all the actual attributes that make us human still leaves something (like a soul, perhaps?) behind the veil of ignorance to carry out his thought experiment.

As mentioned previously, good philosophy must not be in conflict with science. Rawls’ good intentions do not meet this low bar.

Nor do they grapple with the importance of free will, of individual intention in general. Rawls comes close to positing a Calvinist predestinarian position by including one’s level of motivation for achievement as just another fungible, arbitrary trait that must be included in the veil of ignorance. In other words, he identifies inclination as common both to industry and to sloth, rendering both morally meaningless. At a meta level, they are both just behaviors over which we have no control — character aspects that people can’t modify. Rawls’ redistributionism penalizes some people’s intention to work while rewarding other people’s intention not to work, considering them both merely “givens.” Incentives, the basis of economic theory and most social interactions, are of no value in designing an equitable society because how people respond to them is devoid of moral meaning. This is an argument premised in such a way that little counterargument is possible.

* * *

And now for the “fairness” bit: what is fair and how to achieve it. Proponents of “social justice” advocate a “fair” distribution of “society’s assets.” (I put society’s assets in quotes because, like Maggie Thatcher and Ayn Rand, I think of the individual components when dealing with human beings: persons. It is these individuals who, through voluntary exchanges in a free society, own and create wealth…or fail to do so.) The “fair distribution” of society’s assets — in social justice advocates’ minds — can range from a roughly equal allocation of goodies to a minimum apportionment of what might be termed “essential” assets. Trouble is, there is no consensus as to what constitutes a fair distribution of assets, even among those who advocate minimum redistribution.

Most modern free market countries, including the United States, with its complex system of safety nets, are welfare states to some degree. Even libertarian economists such as Smith, Mises, Hayek, and Friedman advocate some degree of redistribution from the well-off to the destitute. Still, there is no consensus on what is an ideal Gini coefficient for a population.

Applying Adam Smith’s ideas to our own time, the onus of determining the proper level of redistributive taxation rests squarely on the voters, as opposed to the moralists.

 

It is this conundrum that preoccupies Sandel, twisting and turning to justify redistribution — to what degree, how much, who deserves what and why, and on what moral grounds. He could have saved much ink, paper, and brain cells by consulting Adam Smith’s idea about redistribution through taxation.

The rich, Smith claimed, should be taxed “something more than in proportion” to their wealth. Deborah Boucoyannis elaborates:

“The inequality of the worst kind” was when taxes must “fall much heavier upon the poor than upon the rich.” The reasons were not moral. Bad taxes were simply bad economics.

Additionally, and more importantly — in contrast to modern moralists — Smith suggested redistribution based on self-interest, not on appeals to morality: too much inequality can bring on civil unrest that can endanger property.

So, applying Smith’s ideas to our own time, the onus of determining the proper level of redistributive taxation rests squarely on the voters, as opposed to the moralists. And just as it is up to us, the citizens, to determine the justice of due process, it is up to us — using whatever metrics we choose — to determine how much redistribution is appropriate.

Sandel concludes Justice: What’s the Right Thing to Do in this way:

A just society can’t be achieved simply by maximizing utility (Utilitarianism) or by securing freedom of choice (Libertarianism). To achieve a just society we have to reason together about the meaning of the good life, and to create a public culture hospitable to the disagreements that will inevitably arise.

Worthy bromides. But they don’t do justice to an otherwise well-written, and thoughtful book.

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