A question that I often ask myself, especially now during the election season, is this: What makes a society just? Specifically, what are the criteria that determine whether a law is legitimate or a government is principled? I do not intend this question to be a legal question; whether something is constitutional is for me a secondary matter. The primary matter is this: What are the values on which a constitution is based that make it a worthy document?
Justice consists of the standards by which we determine whether a society is fair.
Justice is always a meta-standard—a standard applied to other standards that allows us to determine whether these other standards are worthy. For example, our standards of justice can be applied to our standards of ethics, to determine whether they need changing. But justice deals with other things besides crime and punishment. Economic justice deals with the fairness of the distribution of economic means; and social justice deals with the fairness of the treatment different demographic groups in the society. All of these, however, deal with the fairness of certain standards, whether they are the standards for determining whether someone should go to jail, make a lot of money, or be treated differently.
The crux of the matter, of course, is what we mean by fair. This is what philosophers, politicians, and virtually everyone else disagree about. The problem is that fairness often seems like a self-evident concept, when it reality it is far from that.
To start, what seems fair or unfair can depend very much on your situation. Let us say a lion managed to grab a gazelle and is about to eat it. From the gazelle’s point of view, this situation is monstrously unfair. The gazelle didn’t do anything to the lion, nor anything to anyone else, so why should it be the one being eaten? From the lion’s point of view, on the other hand, the situation is absolutely fair. The lion was born with certain dietary needs; it has to hunt and kill to survive; it picked the gazelle it found easiest to catch. What’s unfair about that? Should the lion starve itself?
Of course, lions and gazelles have no concept of fairness, so they lack this particular problem. But we have to deal with it. Finding a standard that can satisfy everyone in a given community is, I think, impossible. Every standard of fairness is bound to disappoint and embitter some. This is the basic tragedy of life. We can mourn this, but also learn from it. Since disappointment is unavoidable, and since perspective colors our notions of fair and unfair, it is clear that emotion alone cannot be the basis of a consistent standard of justice. We need something more objective, a clear set of principles that can be applied to any situation.
Let us start, as so many philosophers have before, with people in a so-called State of Nature. By this, I only mean people living without community of any sort—without rules, laws, or government, each person looking out for themself.
In this hypothetical (and wholly imaginary) situation, every person is maximally free. The only restrictions on people’s actions exist through the necessities of life. If they want to survive, the natural people must devote time and energy to finding food and building shelter for themselves. If they choose not to kill another person, it might be because they want that person’s help or because they are afraid of vengeance; but not because of moral scruples or fear of legal persecution. If a natural person finds a loner in the forest and decides to kill him and take his stuff, there might not be consequences. It is up to each individual what to do. Their every action is thus a calculated risk.
There are clearly some advantages to this hypothetical state of affairs. Most conspicuously, each person is a master of themself and does not have to listen to anybody. They can live where they like, how they like; they can eat, sleep, and play whenever they wish. But the disadvantages are also considerable. The main problem is lack of security. Without laws or police, you would always need to fear your neighbor; without a social safety net, you would always live at the mercy of the elements. It would be a life of maximal freedom and constant danger.
To repeat, I am not saying that this ‘Natural State’ ever existed; to the contrary, I do not think humans ever existed without communities, and I am only calling it ‘natural’ in keeping with the philosophical tradition. I am merely using this scenario to illustrate what a situation of maximal freedom would look like—wherein the only checks on a person’s actions are due to natural, and not social, constraints; wherein bare necessity, and not rules, custom, or law, are what guide life.
Now let us imagine what will happen if the people decide to get together and form a little community. This will clearly entail some changes. Most relevantly for my purposes, the people will have to start developing ways of organizing their actions. This is because, as they will soon discover, their unbridled desires will inevitably come into conflict.
If, for example, there are 10 apples and 10 people, it might be the case that each person wants all ten for themself. But when each of them tries to take all the apples, they will of course start arguing. If they are going to continue living together, they need to develop a solution.
Perhaps three of them fashion spears and shields, and use their weapons to impose their will on the other seven. Thus an oligarchy emerges, in which the three masters make the seven slaves gather apples for them, leaving the slaves only the cores for meager sustenance. The masters punish disobedience, hunt down deserters, and grow fat while the others wither away.
This is the classic Might Makes Right solution to the problem of human society. Thinkers since Plato have been grappling with it, and as long as humans live together it will be a constant temptation. Nietzsche would say that a society wherein the strong dominate the weak is the fairest society of all—fairness itself, he might say, since people are being divided due to the natural law of strength and not the artificial law of custom. The devotees of Realpolitik—Thucydides and Machiavelli, to name just two—find this dominance of the strong over the weak inevitable; and the Social Darwinians go further and find it desirable.
Admittedly, the use of force does solve the problem of conflict, albeit brutally. A powerful few, by violent means, can indeed reduce infighting enough to produce a stable society. But I think most people instinctively recoil from the solution as unjust. After all, being born strong, violent, and domineering does not make you any more deserving of power than being born weak, meek, and kindhearted.
But let us a take a closer look. In my society—namely, the modern West—we have attempted (in theory) to create a meritocracy, wherein the most intelligent and innovative people are able to become wealthy. But is a meritocracy of mind any more fair than a meritocracy of muscle? Is it any better to reward the clever than the cruel? Perhaps both systems are unfair, since they reward people based on an attribute that is not within their control. After all, you can’t choose whether you’re born a genius any more than whether you’re born a warrior. Yes, rewarding the bright involves less bruising and bloodshed than rewarding the belligerent; but is it, in the strict sense, any more fair?
I think so, for the following reason. In a meritocracy of intelligence (in theory, at least) everybody possesses the same rights; whereas in a society governed by Might Makes Right, the rulers have different rights than the ruled. A simple example will suffice. If you agree to play chess with your friend, probably you won’t complain of injustice if your friend easily defeats you. Both of you are playing by the same rules, and your friend, either through practice or natural talent, simply operated within these rules more effectively than you did. But if your friend took out a knife, held it to your throat, and declared himself the winner, this would be clearly unfair, because your friend gave himself an extra dimension of power that you lacked.
Admittedly, a true advocate of Might Makes Right can, with total consistency, insist that the situation is still fair, since you could have thought of using a knife, too. Your friend had an idea you didn’t; what’s unfair about that? Using this logic, any rule-breaking can be regarded as fair, since anybody could have thought of any breach of the rules. To repeat, ‘fairness’ is a slippery concept; and some purists would insist that the only real fairness exists in the law of survival of the fittest. After all, aren’t all the rules of society just artificial contrivances used by the weak to entrap the strong? Many have thought so.
All I can say is that the advocates of Nietzsche’s Will to Power and Social Darwinism do indeed have a self-consistent worldview that cannot be refuted without begging the question. Personally, I find a world governed by Might Makes Right immoral. All moral systems, in my view, must exist between equals and benefit each individual who takes part in it. Thus a society based on violent coercion cannot be moral—at least for me—since the members abide by the rules out of fear and not self-interest. Granted, a Social Darwinian or a Nietzchean would have a very different concept of morality so again my criticism is still begging the question. All I can plead, therefore, is that I find Might Makes Right distasteful; so while acknowledging its logical appeal I will focus on other solutions to the problems of human society.
Now let us return to the problem of the ten people and their ten apples. We have considered and rejected the possibility of violent coercion, though my rejection was personal rather than philosophical. (The thorny problem with ‘justice’ is that it deals in fairness; and how do you decide if your standard of fairness is fair? Obviously you cannot without using circular logic, and thus your personal preferences come into play. As you will see shortly, we’re about to encounter this same problem again.)
We shall consider another solution: The community comes together and decides that the apple supply must always be divided equally between its members. Thus with ten apples each person gets one apple; with five apples each person gets a half, and so on. This is communism, of course, and represents another classic response to the problem of human society. Instead of the brutal law of strength, we get the perfect law of equality.
There is a certain elegance and undeniable appeal to communism. After all, what could be more fair than everyone getting the same thing? But upon closer inspection, it is easy to see how a communist system can also be considered unjust.
An obvious consideration is that every person does not have the same needs. If nine people were healthy but one person had a medical problem, would it be fair for every person to get the same amount of medical attention? Obviously that would be absurd; and even a hardliner communist would admit that perfect equality should be abandoned with regards to medical care, since different people clearly have different needs.
But if individuals differ in their needs for medical care, how else might their needs differ? Perhaps one person only feels good after nine hours of sleep, while the others feel fine after seven. Is it then fair to ask all of them to sleep eight? Perhaps not. We can give the needy sleeper a special dispensation to sleep nine hours. But then won’t this person be doing less work then the rest? Isn’t that unfair too?
A trickier problem is distinguishing a need from a desire. We distinguish between the two quite strictly in our language, but in reality the difference is not so clear. To pick a silly example, if nine of the community prefer apples but one abhors apples and loves pears, this pear-lover will be doomed to constant gustatory dissatisfaction if all decisions with regard to the food supply are taken collectively. This sounds quite trivial, but the point is that different things make different people happy; thus giving every person the same thing, while fair with regard to supply, is possibly quite unfair in terms of satisfaction.
An additional possibility of unfairness is differential contribution. In a communist community, some people may work harder, innovate more, and keep scrupulously to the rules; others may not carry their weight, or may otherwise take advantage of the system. In sum, different people will contribute different amounts to the community. Some of this difference will be due to ability, and some to personality. In any case, it is arguably quite unfair that, whatever you put into the collective, you take out the same amount.
The above criticisms are not meant to discredit communism; rather, they are only meant to show that, even in ostensibly the most perfectly fair system, unfairness still exists. (Unfortunately, unfairness of some sort always exists.) As an individualist, I am not attracted by communism because I think people have different needs, desires, and abilities, and that society should reflect these differences; but this preference of mine is obviously of emotional and not philosophical character. In any case, I do not know of any successful large-scale, long-term societies that had a truly communist character (most ‘communist’ countries being so in name only); so I feel justified in moving on from communism as a possibility.
Let us return, therefore, to our ten people with their ten apples. They tried a military oligarchy, and there was a rebellion; then they tried communism, but they grew resentful and dissatisfied. Then somebody has a bright idea: Whoever picks the apple owns it. The picker can choose to eat it, store it, or give it away; but under no circumstances can another person take it without permission; and if anyone is caught stealing the thief will have to pay a three apple penalty. Our society just invented the right to private property. Thus we see the birth of rights as a tool for organizing society.
There is nothing natural or God-given about a right. Rights are privileges agreed upon by the community, and exist by consent of the community. Rights are ways of organizing what people can and cannot do, to ensure that each person has a clearly delineated sphere of free action that does not impinge upon those of others. In other words, rights restrict people’s freedom at the point at which their freedom interferes with the freedom of their neighbors. A right to kill would thus be logically absurd, since if you killed me you would have deprived me of my right to kill. In other words, exercising your right extinguished my ability to exercise mine. This clearly will not do. This is why murder, larceny, and rape cannot be made into rights: They cannot be made universal, since they are actions that by definition involve the violation of other people’s autonomy.
Limitations on people’s actions are only justified insofar as these limitations protect the freedom of others. Anything beyond this is unnecessary and therefore unjust. Thus a law against homicide is valid, but a law forbidding the eating of sesame seeds cannot be justified, since that action does not deprive anybody else of their liberty. The aim is to secure for each individual the biggest allowable range of mutually consistent actions. To accomplish this, it is more suitable to define rights negatively rather than positively. Rights, in other words, ought to be defined as freedoms from rather than freedoms to, in order to secure the maximum amount of available action. This is consistent with the principle that freedom should only be limited at the points at which they interfere with the freedoms of others, since the rights are defined as freedom from this interference.
We return, now, to our apple community. Things are going along quite well in this new system. Then something happens: a man breaks his leg, and thus cannot pick apples any more. He begins to starve, while his neighbors continue happily along. So one night he makes a proposal of a new rule: When a member of the community is hurt, the healthy members must donate a certain fraction of their food to support the injured person during their convalescence. Since anybody can get injured, the man argued, this rule could potentially benefit any one of them. The healthy members disagree with the proposal, arguing that contributing their own food to another person is an infringement of their rights.
Which party is correct? More broadly, I want to ask how disputes like these should be resolved, when members of the community differ in their preferences of rights.
To answer this, I will introduce a Hierarchy of Rights.
Rights can, I believe, be ordered into a hierarchy from more to less fundamental. The measure of a right’s importance is the degree of autonomy that the right entails. Thus the most fundamental right is to life, since without life no other rights can be enjoyed. The right to be free from taxation is, by comparison, less important, since the loss of autonomy suffered through starvation is greater than the that suffered through taxation.
In the above case, therefore, I think the just thing to do is to impose a tax to keep the injured man alive. Contrarily, if somebody wanted to tax the population to build a gigantic statue of himself, this should be rejected, since the freedom to use one’s own money is more fundamental a right than the freedom to build giant statues. Having money appreciably increases your autonomy, while having a giant statue does not, and autonomy is the measure of a right’s importance.
Let us apply this line of thinking to a contemporary problem: Gun Control. Constitutional problems aside, I think it is clear that gun regulation is justifiable within this system. If the freedom to buy an assault riffle is interfering with another person’s freedom from violent death, obviously the first must be curtailed in some way, since it is the less fundamental right. Regulating firearms is thus justifiable in the same way as instituting taxes for welfare programs.
This same line of thinking applies to many other areas of life. We regulate car speed because the right to drive as quickly as you like is superficial in comparison with the right to life; and we regulate the finance industry because the right to speculate on the markets is less important than the right to our own money. In short, some rights are more important than others, since they entail a greater degree of autonomy; and to protect these fundamental rights it is justifiable to limit other rights of less importance.
Failing to distinguish between the importance of different rights is a mistake that I have often encountered. Once, for example, I spoke with a libertarian who argued that everybody should be able to own nuclear weapons. He argued this because, being a libertarian, he thought everybody should have as much freedom as possible. But this fails to take into account that, without limits, your autonomy will at some point interfere with mine. Maximal freedom is simply impossible in a society. The idea of allowing citizens to buy nuclear weapons is an obvious example: If one person used a nuclear weapon, in a flash they would deprive millions of people of their lives, and thus all of their rights. Thus for the sake of protecting personal liberty—not to mention human life—it is necessary to prevent individuals from possessing weapons of this kind. In other words, libertarians should be in favor of limiting access to weapons, since weapons deprive people of their liberty.
Similarly absurd was the argument that gay people should not marry because it offended people’s religious sensibilities. The right to marry is a quite fundamental, being of great social, personal, and financial importance; while the right not to be offended is not a right at all. (Anybody can potentially get offended at anything, since being offended is an emotional reaction; thus it would lead to absurdities to try to ban everything that offends.) While I am at it, polyamorous marriages should also be legal, I think, so long as all the parties consented. In general, I do not see why the love lives of consenting adults should be regulated at all.
The only justification for regulating or banning something is that it could potentially deprive somebody of their autonomy. The highly addictive and dangerous nature of drugs like cocaine and heroine give a compelling case for regulation, since it is possible that the substances compromise people’s ability to choose freely. And if you influence me to try cocaine, and I get addicted, you will have compromised my autonomy just the same as if you’d stolen from me. (This is philosophically interesting territory: Should you have a right to choose to do something that might compromise your ability to choose? It’s a tricky problem, but I think there are good grounds for banning certain substances, both because they cause people to act in ways they regret and, through their repercussions to people’s health, create a strain on the public health system.)
Likewise, I think it is the right choice to regulate, but not to ban, cigarettes and alcohol, since the addictive nature of the first and the intoxicating effects of the second can compromise a person’s autonomy. In the case of marijuana, on the other hand, I think that it is absolutely unjust that it has been made illegal and that people have been jailed for its possession. It is not a powerful drug, and does not limit people’s autonomy to the degree that an absolute ban is justified. More generally, I think many of the laws surrounding drug possession in the United States are good examples of unjust laws—some of them banning substances with insufficient justification, others imposing unduly harsh penalties for crimes of a non-violent nature. (As I wrote elsewhere, punishments are only justifiable insofar as they act as effective deterrents.) But let me return to the main subject.
This hierarchy of rights conception is obviously quite abstract, and without deliberate care will not be put into practice. In the above case of the ten people, I doubt that the one injured party would be able to prevail upon the nine healthy ones to give up a fraction of their food. The poor fellow might starve.
This is a constant danger in any community: the tyranny of the powerful. The powerful might be a majority, a race, a sex, or a class. This is one reason why I think government is a necessary institution in any large community. I do not see, in other words, how justice could be enforced in an anarchic system; and for this reason I am generally hostile to anarchism. Without a government, what would prevent the strong from preying on the weak? An anarchist will easily retort that the government is far from an ethically perfect entity, and indeed the state has often become the very thing we need protection against. This is true, and to prevent this careful measures must be taken.
The strategy used in the United States is a model example: divide up the government’s powers between different branches, with checks and balances between them. A division of powers between different levels of government and regions of the country—in other words, Federalism—is also an excellent practical measure against state tyranny. All the powers of each branch of government must be made explicit in a constitution, thus making any breaches easy to detect. Periodic elections also help to hold the government accountable to the people, as well as to prevent any one individual from accumulating too much power. Sad to say, no government and no constitution will ever be immune to totalitarian impulses, which is why a free press and an active, vigilant citizenry are necessary for a healthy state. But this is an essay on justice, not a plan of government.
The most just societies are those that keep the hierarchy of rights most clearly in view. When a just government balances the right of one person to buy thirteen private jets against the rights of a beggar to have food and shelter, it always sides with the latter. In general, the more resources, power, and privilege you have, the more justifiable it becomes to curtail your rights to your own property with the aim of redistribution. This is the justification behind welfare, food stamps, and Medicare; this is the reason why we have a graduated income tax. If you have one billion dollars, it does not appreciably affect your autonomy to be deprived of a large percentage of your income. On the other hand, government welfare programs allow worse-off people to stay alive and to find work, which are fundamental to their autonomy.
The above sketch is my preferred solution to the problem of creating a standard of justice. A system of rights, ordered into a hierarchy, allows each citizen a definite sphere of autonomy. This is important, because I think every person should be an authority over themself. Nobody knows your needs and desires better than you do; thus you are the person who best knows how to secure your own livelihood and attain your own happiness. Allowing people to order their own lives is not only good for each person individually, but is also good for the society as a whole. When people can think for themselves and reap the benefits of their own innovations, it provides both the means and motivations for a thriving society.