From the July 1999 issue of Chronicles.
In The Mirage of Social Justice, the second volume of his trilogy on Law, Legislation, and Liberty, Friedrich von Hayek confessed that, "as a result of long endeavors to trace the destructive effect which the invocation of 'social justice' has had on our moral sensitivity," he had "come to feel strongly that the greatest service" he could "still render" to his fellows would be to "make . . . speakers and writers . . . thoroughly ashamed . . . to employ the term 'social justice.'"
Certainly, as Hayek proceeded so painstakingly to show, this cant expression was, and indeed still is, usually employed quite thoughtlessly. Few, if any, of those who habitually use it have even attempted to produce a systematic and consistent rationale for its application. Nevertheless, the expression "the achievement of social justice" can be illuminatingly defined as being the achievement by statist means of whatever would, for socialists, constitute an ideal distribution of goods of all kinds. The word "socialism" here, following Hayek's suggestion in his Preface to the second edition of The Road to Serfdom, is understood to mean "not the nationalization of the means of production and the central economic planning which this made possible and necessary" but "the extensive redistribution of incomes through taxation and the institutions of the welfare state."
Hayek's chances of fulfilling his ambition to make people ashamed to talk of social justice would have been much greater if only he had been able and willing to direct his fire at John Rawls. For although Rawls' 607-page book is misleadingly entitled A Theory of Justice, he reveals within its first ten pages that his true subject is "the principles of social justice": principles which, he tells us, "provide a way of assigning rights and duties in the basic institution of society and . . . define the appropriate distribution of the benefits and burdens of social co-operation." Because Rawls attempted to satisfy the need for some clear formulation and persuasive rationalization of the putative principles of social justice, this book received a wide and overwhelmingly enthusiastic welcome. It remains the standard starting point for all subsequent theoretical discussion.
Rawls, however, makes absolutely no attempt to show how, if at all, these principles of "social" justice are related to justice as traditionally understood. He pays no attention to the warning about the need for definition which Plato's Socrates is scripted to give in the final sentence of the first book of Plato's Republic: "For if I do not know what justice is I am scarcely likely to find out whether its possessor is happy or unhappy." Indeed, it is only on his 579th page that Rawls explains, without any suggestion of apology, that he was eager "to leave questions of meaning and definition aside and get on with the task of developing a substantive theory [not of 'social' justice but] of justice."
This extraordinary—and extraordinarily unphilosophical—refusal to define or otherwise elucidate the key term of the entire argument must surely make the book the only substantial treatise purporting to be about justice not to have quoted the traditional definition. (That is, by the way, the definition proposed by Polemarchus, but rejected by Plato's Socrates, in Book I of the Republic. I will not resist the temptation to point out that, in the remaining nine books, Plato scripted his Socrates to develop principles of what Rawls calls social justice radically different from those proposed by Rawls himself) The version found in the Institutes of Justinian is inscribed on a wall of the library of the Harvard Law School. It is there helpfully translated as: "To live honourably, not to injure another, to render to each his due." The expression "his due" is presumably to be construed as referring to the several just deserts and entitlements of different individuals, the deserts primarily under the criminal law and the entitlements under the civil.
Rawls derives his fundamental principles of social justice from a hypothetical social contract. Although he claims that "throughout the choice between a private-property economy and socialism is left open," the hypothetical contracting parties who, "in the original position," are to make the hypothetical social contract are nevertheless tacitly required to assume the ultimately collective ownership of all wealth and income. We are told, "For simplicity they are required to assume that the chief primary goods at the disposition of society are rights and liberties, powers and opportunities, income and wealth" (emphasis added). They are to assume, that is to say, that everybody's income and wealth are "at the disposition of that hypostatized collectivity, society; altogether uninhibited, it seems, by any morally legitimate prior property claims.
Readers ought to be astonished to confront this assumption of the collective ownership of all wealth and income. They should be further flabbergasted to discover that, in explaining "The Main Idea of the Theory," Rawls asserts:
Once we decide to look for a conception of justice that nullifies the accidents of natural endowment and the contingencies of social circumstances as counters in the quest for political and economic advantage, we are led to these principles. They express the result of leaving aside those aspects of the social world that seem arbitrary from a moral point of view [emphasis added].
Certainly, if all possible grounds for any differences in deserts and entitlements are thus to be dismissed as morally irrelevant, then it does indeed become obvious that everyone's deserts and entitlements must be equal. For it is precisely and only upon what individuals severally and individually have become and now are, as the result of their different genetic endowments and their different previous experiences and activities, that all their several and often very different present deserts and entitlements must be based.
It is, for instance, only and precisely because one particular individual has justly acquired more property than another that their property rights, their property entitlements, have become unequal. Again, it is because one individual has committed a crime and another has not that their just deserts necessarily become unequal. It is monstrous to dismiss such facts as irrelevant on the grounds that they are "arbitrary from a moral point of view." A conception of justice which demands this dismissal is not justice at all. "Social" justice is no more justice than "people's" democracy is, or was, democracy.
Rawls regularly describes his conception of social justice as "justice as fairness." "Fairness as justice" would be a more apt description. For suppose that we were charged with making a fair distribution of some collection of goods among some particular set of people. The presumption, albeit a defensible presumption, surely is that a fair distribution would be the one which gave equal shares to all its members. But the only necessary connection between equality and justice is that the rules of justice, like all rules, apply equally to all the cases which satisfy their terms.
Since many speak of equality and social justice as if these conceptions are necessarily connected if not logically equivalent, we should not be surprised to find that Rawls—who confesses, with engaging frankness, that "We want to define the original position so that we get the desired solution"—believes that the hypothetical beings making the original contract cannot but "acknowledge as the first principle of justice one requiring an equal distribution. Indeed, this principle is so obvious that we would expect it to occur to anyone immediately."
It is a pity that Rawls seems never to have noticed Aristotle's treatment of "distributive justice." Aristotle does not, of course, assume that everything is available for distribution or redistribution. He does start by saying, "If then the unjust is the unequal, the just is the equal—a view that commends itself to all without proof" But then he goes on at once to argue that "if the persons are not equal they will not have equal shares." So Aristotle's actual conclusion was not a substantial practical prescription but a purely formal principle.
The objection that "social" justice is not a kind of justice is often countered either by urging that the world would be a better place if the distribution of income and wealth were different from what it actually is or by protesting that this objection is at best trivially verbal. It is easy to argue with the first of these contentions. In my personal ideal world, for instance, successful pop stars would not be voted to become millionaires by the purchases made by everyone's teenage children. But this is simply irrelevant. For it is one thing to justify some sort of proceeding—that is, to show it to be desirable or excusable or in some other way preferable to the available alternatives—but it is quite another thing to justicize it, to show it to be not merely "socially" just but plain, old-fashioned just.
To understand why the issue is most emphatically not trivially verbal, it is sufficient to ask and answer the question of why people are so keen to maintain that their actions or policies are indeed (socially) just. It is, of course, because they want to arrogate to these actions or policies the psychological associations which are presently linked with, and the logical implications which are presently carried by, employments of the word "just." Understandably, they want to see themselves, and to be seen by others, as occupying the moral high ground, and to condemn their political opponents as insensitive and unjust people.
Perhaps even more importantly, though this is rarely recognized, those who share the socialist ideals of "social" justice need to equip themselves with what, if only it were true, would constitute a decisive answer to an otherwise properly embarrassing question: "By what right are you proposing to deploy the forceful machinery of the state in order to impose upon all concerned your own personal or party vision of an ideal society?" For justice is not an expression of individual or group preferences; it is not an individual or party vision of an ideal society. To appeal to justice is to appeal to a standard logically independent of all individual and collective interests or preferences. That is why everyone has to allow that what is prescribed by (moral) justice may properly, though not always prudently, be enforced by law. For justice—justice without prefix or suffix's the basic, minimum, essential virtue. As Adam Smith put it in his other masterpiece, The Theory of Moral Sentiments:
The man who barely abstains from violating either the person, or the estate, or the reputation of his neighbours, has, surely, little positive merit. He fulfills, however, all the rules of what is peculiarly called justice, and does everything which his equals can with propriety force him to do, or which they can punish him for not doing [emphasis added].