Justice and Community

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Painting creted about 1980 for Playboy Magazine

The conversation between Rusty Reno, Jody Bottum, and Caleb Stegall prompted me to revisit a recent post from “What I Saw In America” in response to a reader reply who had charged localism with insufficient attentiveness to justice. Since, in the context of this conversation, my argument of this previous post is somewhat relevant or at least related, and since the readership of this site may not have seen my argument there, I re-post it here:

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A reader writes,

Dear Patrick,

You wrote: “A smart political leader who argued for a government that governs close to home (not simply “anti-government,” but the goods and benefits of more local government) – and proposes actual paths and policies to effect that end – I believe would attract a large swath of the electorate.”

Okay. But there is another problem. It seems to me that well-meaning people use a good principle, subsidiarity, to justify too many arguments against federal government. They overextend. Subsidiarity is not opposed to federalism, but rather is against ~unjust~ federalism. Subsidiarity is a an important ~part~ of justice in politics, but it is no panacea.

We return, therefore, to justice. If powers close to home are unjust, then we need a federal government capable of timely intervention. Likewise, if the federal government acts unjustly, then minorities (i.e. local powers) must be invested with the power to legitimately resist. Justice then attains to a higher priority than subsidiarity.

In sum, a well-balanced, thoughtful judiciary matters in our kind of democracy to help weed through our situations. So we return to the notion of good government (which consists of the judiciary), rather than no government or anti-government. Newt’s got it all wrong.

And to return to one of your blog’s ongoing themes, a sense of place lends itself to subsidiarity. But the federal government also operates with a sense of place—the nation. Too much of an emphasis on local place can undermine a nation’s sense of common place, or culture. If our sense of the local is too strong, we will find ourselves unwilling to accept taxes that build roads in Idaho, say, if we live in Virginia—forgetting that our system of unrestricted interstate commerce allows for the import affordable potatoes.

In sum, how do we prevent the good of the local from becoming parochial? How can guys like Newt get away with minimalizing, or forgetting, about the dangers of local small-mindedness that are the hazards of subsidiarity?

This is a very good question, and a difficult challenge to answer because it is impossible to guarantee or ensure that “parochialism” will not involve some degree of injustice (depending on how we define that word). It is an issue and concern that must be confronted with the utmost seriousness. I cannot provide any philosophical, theoretical or political answer that will guarantee that life lived on smaller scales will be absent injustice. But I do want to respond initially by asking whether it’s safe to assume that larger scale is necessarily more just.  Further, whether or not that’s the case (and the evidence suggests otherwise), it should be further asked even whether justice is or should be the sole or exclusive aim of politics. Indeed, it is because of our dominant liberal definition of justice that we see the rise of concentrated central power, but the very existence – and exercise – of that power is likely to be inherently unjust.

First we should ask – what is justice? Justice, according to the Aristotelian definition, is defined as giving each person his or her due – that is, “just desert.” In order to do that, the ancients recognized that it is necessary to know something of the character of each individual in order to treat each person justly. In order to have sufficient, much less intimate, knowledge of many individuals, it is necessary to live in relatively small settings where such knowledge is possible. Yet, in such intimate settings, we are likely not to need formal appeals to justice. Inasmuch as we are likely to know those with whom we share our lives, our relationships are much more likely to be based on appeals to “friendship” or love, not justice (imagine a family, or small community, or church, that operated on strict demands of justice, instead of charity). Aristotle wrote that where there is ample practice of friendship, there is no need of justice; further, that where there are greater degrees of friendship, there are fewer lawsuits (or need for laws) regulating our behavior. We are more likely to deal informally with our fellow citizens, including the ability to forbear injury and to accept conditions of inequality if the underlying condition informing that inequality is a shared regard for the common good.

In larger settings, however, we demand justice as a second-best substitute. Because we can no longer accept unequal relationships based in a deeper solidarity, we instead demand equality as a consequence of impersonal relationships. Thus, we have tended to substitute any such interpersonal basis of relationships instead with demands for “social justice,” which is a misnomer that means, in fact, “equality.” Equality is, in certain senses, the opposite of justice: it rewards like and unlike equally. Its precondition is that I know nothing about you, and even that I don’t particularly care about you. Its precondition is indifference, other than a formal demand not to be treated differently than anyone else. This latter definition of justice animates the philosophy of modern liberalism, particularly theories of justice inspired by John Rawls. While Rawls argued that justice consists of equality in many areas (including dignity), it turns out that the only way to adequately measure and ensure equality in conditions of indifference is through material markers – wealth and income. The tendency in such settings that tend toward the large scale is for justice (or “social justice”) to be defined exclusively in material and monetary terms. A striking aspect of the “greatest political thinker” of the 20th-century is that he was essentially arguing for a certain kind of tax code.

Taking this into account, the unit of measurement comes into question. Is it enough for policies of redistribution to take place within a proscribed domestic national sphere? Wouldn’t that leave significant inequalities between nations in place? Thinkers like Thomas Pogge have argued that for Rawls’s theory of justice to be just, it must apply internationally. National boundaries are inherently unjust, and the only legitimate and true form of justice can occur in the context of a single unified world government. The logic of the claim made here – that justice must be given “higher priority” than subsidiarity – is toward one-world consolidation. My suspicion is that any such condition would require massive increases in injustice in the effort to achieve “justice.”

This latter suspicion brings us to a core contention: justice must be understood to be one of among many goods and virtues for human beings, but not the sole or exclusive good or virtue. Justice must be weighed against other goods as well, such as the goods of family, fraternity, liberty, community, tradition, as well as the virtues of sacrifice, faith, charity. It could be argued that no human community can ever be truly just, and the effort to achieve true justice is itself unjust: long ago, Plato suggested that true justice could only come into existence if families and private property were abolished. This is a justice so extreme as to give rise to injustice. There will always be degrees of injustice in any society, beginning with the fact that we will be born into different conditions, to different parents, in different regimes, etc. We don’t get to choose those conditions, and nor can we wholly correct the results of those varying conditions.

Once elevated, justice is thus a particularly imperialistic virtue. Injustice must be rooted out everywhere, and its elimination – given the natural and pervasive injustice inherent with all human life – requires massive intervention by ever-more powerful entities. Ironically, the substitution of justice for interpersonal relations (e.g., friendship, fraternity and charity) that is required in larger settings sets into motion logical necessity for ever-larger settings that include ever-more claimants of justice, and thus, ever-more centralized and powerful enforcers of justice. This is why there is a natural tendency, over time, for centralization of power within a liberal context – a condition ironically born of the fictitious notion that the aim of liberalism is a limited State. Hobbes was the more accurate and truer liberal all along, although what animates us outside the State of Nature is not fear of death, but fear of being treated unequally.

Prudence gives way to legalism and “principle”: small injustices are treated with equal degrees of intolerance as the most egregious forms of injustice, and in the name of the eradication of all injustice wherever it may exist, existing ways of life are also eradicated. “Culture” is the first victim of the imperialistic search-and-destroy mission of modern liberal justice. To the extent that culture is in fact a culture – because it seeks to rule authoritatively and within a relatively closed context – it must be destroyed in the name of justice. Any attendant goods of that culture are deeply discounted, whereas the opportunity to join in a modern consumerist regime is seen as ample compensation.

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If pressed to make a defense of “subsidiarity” in the name of justice, I would say that justice consists to a significant extent of living in the world in a way that makes “the good life” possible for your own and future generations. To be just is to treat the world, and our children’s children children, justly. By that measure, much of our modern way of life is “unjust” to the extent that we live in ways that are likely to make life worse – even unlivable – for future generations. A major contributor to that condition is our large-scale and centralized political and economic systems. More local scale – in which, for example, what I eat tends to be derived from sustainable local agriculture, not potatoes trucked in from Idaho – is therefore more just, by this definition (on the egregious practices involved in modern potato farming, read Michael Pollan’s The Botany of Desire). More local economies – in which our consumption matches our production, and is not driven by a feverish and imaginative creation of “wealth” through debt – is more just. Our current arrangements, by contrast, are profoundly unjust to those who are not yet born, saddling them with eroded topsoil, depleted aquifers, artificially increased world temperatures, and mountains of debt. That is not a “culture” – it is its antithesis, an “anti-culture.” Our imprudent pursuit of “justice” and its attendant demands for growth of economies and government is, in the final estimation, profoundly unjust.

10 COMMENTS

  1. I would not even agree that the notion of “justice as fairness” is really saying anything, since “fairness,” meaning “equal treatment,” presupposes a basis on which equal treatment is deserved.

    It’s precisely that basis which is questionable, for it is not a sufficient basis that people are equally human for equal access to a car, a wife, not to be put into prison, etc. to obtain. Those things respectively depend on having the title to the car, being the wife’s husband, not having committed murder, etc. and not simply being human.

    The basis on which equal treatment in a given circumstance is certainly a question to be debated, but the rhetoric of “justice as fairness” merely sidesteps the substantive questions at stake.

  2. it is not a sufficient basis that people are equally human for equal access to a car, a wife, not to be put into prison, etc.

    True, but what about the notion that it is “a sufficient basis that people are equally human for equal access to legal guarantees in a court of law, decent treatment at the hands of the police, unprejudiced admissions to institutions of education, open access to job applications and land purchasing,” and so on and so forth? To say nothing of those basic Lockean claims embedded in the Bill of Rights: speech, religion, privacy of the home, ownership of firearms, etc.?

    I’m not a Rawlsian, and I don’t think “justice as fairness” pays anything like appropriate attention to human nature and the nature of communities. But the notions of “fairness” and “equality” as elements of justice are not to be sneezed at, however abused those concepts sometimes be.

  3. Russell,
    These are tougher issues than you suggest. OK, I’ll grant equal admission to law courts, though we don’t have that now (wealthier have better representation in general). It gets stickier when we get to issues like admission to institutions of higher education, etc. Why shouldn’t there be a preference for certain types of people – not now based on invidious classifications of race, but things like religion or geographic location or some other significant institutional identity? I wish, for instance, Georgetown hired and admitted with more attention to and preference for Catholics. Would that be “unjust” according to your definition?

    Or – land purchasing. What if a community decided it preferred to keep its farmland undeveloped. Would it be unjust to restrict certain land purchases to those who intend to farm the land, rather than developers and the like?

    Once again, the elephant in the room is America’s experience with slavery and racist legacy. The examples you give tend toward stopping conversation, when in fact there’s quite a bit more nuance involved in many of the examples that you give than our immediate association with racism might allow.

  4. Patrick,

    This is just fantastic and crisp in its precision — with one small exception. Do you not conflate a Rawlsian use of “justice” with the Aristotelian one later in the post? That is, the justice the latter half of this post seems to be describing not simply the subsitution of justice for friendship, but a substitution of a modern sense of justice, which I think can rightly be derided as “fairness” and “social justice,” for the personal conception of justice you rightly attribute to Aristotle (and to the classical world in general). Perhaps, because of, or rather by means of the example of, Plato, you intended to question such a differentiation; but, as I read this essay (rather hastily, I confess) I thought perhaps there was a conceptual slip.

    As my wife and I drove back home to Michigan the other day, we started talking about justice, charity, and fairness. Your post illuminates that discussion considerably. My suggestion would be that our culture’s allergic sneeze of “that’s unfair” at every instance of differentiation, privilege, or inequality is a rhetorical habit that masks a conceptual confusion. In defending “fairness,” the persons who use that term attempt to ellide justice and charity. They see what one might give to another out of love, but since the love is lacking, they weakly appeal to an impersonal justice to furnish what would not normally be given in the absence of personal relations. I had almost said “real relations”; as you argue, modern politics in its concern for ever more elevated administration, “fairness” and “social justice” seeks to provide by bureaucratic clientalism a substitute for what can only actually be had by real friendship and charity.

  5. Patrick,

    A judicious response. Herewith, a couple of hopefully judicious replies:

    I’ll grant equal admission to law courts, though we don’t have that now (wealthier have better representation in general).

    Very true–but my inner socialist just ruefully chuckles and notes that such is another reason to re-emphasize the need to tie economic fairness to the administration of legal justice.

    It gets stickier when we get to issues like admission to institutions of higher education, etc.

    Certainly that’s so–but why the leap up to “institutions of higher education”? I just was talking about education, period–which presumably includes primary and secondary education, as well as apprenticeships along with higher education.

    Why shouldn’t there be a preference for certain types of people – not now based on invidious classifications of race, but things like religion or geographic location or some other significant institutional identity? I wish, for instance, Georgetown hired and admitted with more attention to and preference for Catholics. Would that be “unjust” according to your definition?

    It don’t see whay it would necessarily be unjust? The point is a matter of definitions. When I say “unprejudiced admissions to institutions of education,” I’m not saying anything about the mission, policies, or identity of said institutions. I received my undergraduate degree from BYU, which has managed (save for the football team, which is a weird semi-scandal all its own) to make its student body about 98% Mormon, and its faculty nearly so. Do they prefer to admit and hire Mormons? Absolutely. Do they do it by saying “no Mormon may apply?” No–they do it by making the admissions and hiring processes, with their requirements of ecclesiastical endorsement and so forth, very thoroughly Mormon, with the result that the application pool becomes self-selecting. If you really want to attend or work at a Mormon institution, well, these are the rules for such; nothing hidden about it. I’m sure someone could make some sort of argument about “prejudice” at BYU in the broader sense, but I’m not talking about that (I’ve read my Gadamer; I like “prejudice” in its proper place); I’m talking about the very narrow and more-often-than-not false manipulation of people’s choices along exclusionary lines. Given that Damon Linker, of all people, was able to find employment at BYU for a few years, I kind of doubt an argument about such forms of discrimination would hold water. If Georgetown chooses not to make use of such a prejudice, well, so much the worse for Georgetown. (There’s always Catholic U.!)

    What if a community decided it preferred to keep its farmland undeveloped. Would it be unjust to restrict certain land purchases to those who intend to farm the land, rather than developers and the like?

    But Patrick, isn’t that exactly what various covenants and land grants allow–to say nothing of the power of local, state, and national government to set aside land as parks or wildlife preserves or rural districts and the like? Now you’re right, of course, that those covenants and zoning decisions are often hotly disputed, and frequently fall before the cries of “unfairness!” and “don’t tell me what to do with my land!” and “we need progress and jobs!,” etc., made by corporations and sell-outs of various sorts. And sometimes, I suppose, the specific language of equality can be dragged into such arguments, though actual examples escape for the moment. In any case, though, defending–within important limits, as I suggested in my original comment–the employment of “fairness” as part of justice doesn’t, I think, open the door to the principaled inability of communities to effectively order themselves. No, it is usually corporate money and unthinking bureaucracies and lazy undemocratic citizens who mostly prevent that from happening as it ought, I suspect.

    The examples you give tend toward stopping conversation, when in fact there’s quite a bit more nuance involved in many of the examples that you give than our immediate association with racism might allow.

    I genuinely did not intend my words to be a bridge to a defense of Brown v. Board of Education, if that’s what you mean. I am willing to defend it, like I’m willing to defend “fairness” within limits, but I’m sorry if my response seemed to be pulling a “look! racism!” card and thereby shut people up. I really did not mean it that way at all.

  6. Under early concepts of Federalism, before the expansionist urges accompanying military adventurism and corporate freebooting subsumed the Republic, “subsidiarity” was not antithesis, it was an integral part of the thesis of Federalism. Government picked their battles with local concerns handled in the classic subsidiary manner and things such as defense (real defense, not going abroad in search of monsters) were administered by a prudently scaled Federal Government that had not developed the self-serving political class which bloomed into full form during the Civil War. The “Internal Improvements” of Henry Clay …canals, railroads etc may have further eroded the subsidiary format but still, even then subsidiarity was still quite vibrant.

    One of the byproducts of a “fairness doctrine” is that government has been recruited to, in essence, function as the chief vehicle of morality within the polity. Housing, education, wages, agriculture…the full spectrum of human life is administered through the institutionalized moral stopgap of the leviathan. Accordingly, the citizen, in their relationships with their fellow begin to surrender any moral agency to the government and eventually, the government is seen as the only truly effective force able to insure the application of a moral code. Consequently, this moral code is boiled down and homogenized into a one size fits all framework that is ill-equipped to truly conduct itself in a humane and moral manner….not to mention the hypocrisy of a military-industrial-centric moral agent. Simultaneous with this transfer of moral agency, there arises a vicarious agora of entertainment and media that has a strong streak of sensationalism and schadenfreude….bread and circuses……further eroding moral agency…or subverting it in cases. Morality, in effect becomes like a deduction on ones tax return, a box to check, something that can be turned on and off to fit the occasion.

    Obviously, the Church and local custom remain vibrant in certain sectors and so there is not a complete collapse of moral responsibility….government even retains a certain amount of it Where it suits it….but without a scaled culture of rural to urban and regional connections where all scales are determinably governed through both individual and institutional means to promote their vibrancy, the artificial weight tips toward leviathan and its altogether deracinated concept of morality where “fairness” is a moving target.

    FPR’rs…if such a thing actually exists, are branded with the epithet that they are romantic exiles, holed up in either their imagination or their small town and while this may exist for some, I doubt it is a satisfactory definition of the habitues to this site en masse. I may favor a life within one or the other but I do not disdain the other, frequently enriching my life with the differences between the two as I take deep drinks of them both. I do not waste my time trying to “have it both ways”….I have it either way, as the spirit moves.

    Accordingly, I have a very difficult time embracing the concept of the so called conservative pragmatist who seeks to work with the current government to make the most of the situation in order to achieve ends because this government has outgrown not only prudence , it has outgrown morality. It violates civil rights, parses the definition of torture, countenances excessive “collateral damage” in technological war….both of which were abhorred as long ago as Frederick….and most important of all with the consequence that everything suffers, it violates fiduciary morality . It has never met a small town or region it cannot ignore enough. It follows transgressive culture around like a pack of dogs following a garbage truck.

    Regarding Justice, As Richard Pryor said….”we got justice alright, visit any prison and thats what you’ll find, just us”

  7. James,
    Thanks for the helpful amendment – I think it would have helped if I had put “scare quotes” around justice after I mentioned Rawls, since by it at that point I was using the term with a Rawlsian definition.

    Russell, by drawing attention to economic inequalities that skew access to things like justice (and schools, etc.) I was meaning rather to highlight the problem of liberal neutrality. Perhaps the best summation I know of is Anatole France’s pithy line that justice, according to some, can be summed up in the following type of law – “no one is allowed to sleep under bridges.” An equal formulation with very different impacts. Typically the liberal response is to begin to carve out exceptions and special allowances, all to be administered by distant bureaucrats following inflexible rules and codes. In the end, it is no better approximation of “justice” than the purportedly less just form of decision-making that arises from more local forms of judging. Yes, there will be misjudgments (and narrowness, etc.), but let’s not pretend that neutrality or admistratively derived exceptions to neutrality are necessarily any more just, even by a liberal definition.

    You are right that we cannot exclude considerations of disparate wealth, but we’d have to hear more about your socialism and how it would be promulgated. I am more prone to agree with Aristotle that more more local forms of private ownership and local market mechanisms will be necessarily more egalitarian by dint of the fact that differences in wealth will be less extreme. I also agree with Aristotle that the effort to equalize wealth will result in political resentment, and the effort to differentiate ourselves from others will manifest itself in other ways. And, finally, I agree with Jesus that the poor are always with us. It’s a question of how we shrink the distance between the poor and the wealthy, and further, foster a sense of mutual obligation born not of force, but shared sense of commonly linked fates. I don’t think this requires or necessarily is socialism, if by that you mean common ownership or forced equalization of property. But, we can discuss that more elsewhere.

    I pretty much sympathize with everything else you wrote, and don’t think we differ that much. I would simply say (using the example of higher education) that the liberal ethos eventually becomes a powerful regulator of behavior, to the point that many distinctive institutions (one can point to the rich patchwork of once-religiously affiliated private institutions throughout the land, as well as officially-affiliated wannabes like Georgetown), under the powerful ethic of liberalism, have become ever more homogeneous. The very reason that makes BYU distinctive comes down to a number of the things many are arguing here – namely, that culture (e.g. religious traditions) is distinctive and worthy of being defended as distinctive in the face of a dominant political ethic and market forces that generate homogeneity. This does not exculpate us from judgment, but nor does it require conformity to some standard of liberal justice that excludes many other goods of life, and which finally may not be fundamentally just according to competing definitions of justice.

  8. Why must there be a consistent definition of justice across all human scale polities? Political philosophers since at least Socrates have been working on a definition of justice, and they have yet to find one that is transcendent. Instead, let each small polity, or ward republic set its own standards of justice that are consonant with the beliefs of its inhabitants. Madison, Wisconsin is certainly going to have different ideas on morals, and justice than Wheaton, Illinois. Fine. Let each function happily with their own views. If someone does not like the standards in place in their particular place, then they are free to move to another that is more in line with their views. Even Hobbes, whose ideas require total subservience to a global sovereign in order to achieve peace, had no qualms about fleeing England to the Continent when his ideas and actions had fallen out of favor. He was not reticent about leaving for greener pastures, either, but trumpeted his actions from the rooftops. If there is going to be a transcendent and universal standard of justice, it will have to be imposed from the top down onto the ward republics, or Front Porch Republics. This will require the use of force in at least some cases, and the result would be exactly what we localists are trying to avoid in the first place.

  9. I interpret your definition of justice to be a follows: the proper response, often in form of a punishment, to improper behavior by an individual.

    I will attempt to summarize your main points and then dispute:

    (1) There is a difference between justice in the abstract and a formal appeal to justice, which most often happens in a legal context.

    (2) Justice in the abstract sense requires knowledge regarding “something of the character of each individual.”

    (3) Justice in the abstract sense then is best fulfilled by persons with personal acquaintance with the person in question.

    (4) Consequently, small communities regulate themselves best without formal appeals to justice.

    (5) Large communities do require formal appeals to justice.

    (6) In the context of a large community, persons cannot experience ‘deeper solidarity’ because their relationships are impersonal.

    (7) Consequently, persons demand ‘equality,’ described as ‘social justice.’

    (8) The only available method to measure equality is via ‘material and monetary terms.’

    (9) If material and monetary measurements are the sole determinant of whether or not justice exists, then there are no obstacles to an international regime attempting to create global social justice through whatever means necessary (presumably redistribution of capital).

    (10) “This latter suspicion brings us to a core contention: justice must be understood to be one of among many goods and virtues for human beings, but not the sole or exclusive good or virtue. Justice must be weighed against other goods as well, such as the goods of family, fraternity, liberty, community, tradition, as well as the virtues of sacrifice, faith, charity. It could be argued that no human community can ever be truly just, and the effort to achieve true justice is itself unjust.”

    Although there are problematic gaps in your argument thus far, I will stop here since (10) seems to me a non sequitur. First, you have never given us a positive definition of justice, so you cannot say that is one “among many goods and virtues.” Second, it is not clear to me that the other aspects you list are all necessarily or properly ‘goods.’ Is not ‘liberty’ to some extent contingent? Are family or community necessarily ‘goods’? Third, the fact that justice as a good can never be completely fulfilled is not an argument against striving for it. Fourth, and most importantly, (10) does not follow from what precedes it.

    Most importantly, in (6) you assume that there are no ways to foster larger social solidarity outside of personal relationships. Also, in (9) you assume that people who care about justice at a larger scale don’t realize the limitations of the material and monetary measurements they are using and that there are no better measurements that could be used. This is not always the case in my personal experience.

    Let me advertise my post on Love and Locality: The View from the East over at First Things as a potential way to address some of these themes more productively. It may benefit from further criticism.

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