- Justice is a term easily defined as what is due.
- The problem arises in application, for how will we calculate what is due?
- Individuals are tempted to distort their conception because of the privacy of their experience and a strong self-interested bias.
- History demonstrates that no clarity on the nature of justice and no universal allocation of justice has been accomplished; this failure has been attributed to the definition of justice being inapplicable, incorrect, or incomplete.
- Perhaps human nature is too flawed by self-interest to deliver justice, but everyone does rise above selfishness for some of their preferences; additionally, some self-interested preferences are mutually advantageous, so these flaws may not be fatal to a true understanding and application of justice.
- Many charges of human depravity claim persons fail in a duty to universal love, but this is an absurd and impossible standard, so persons ought not be condemned for not satisfying it and justice ought not be held hostage to a universal beneficence.
- A more realistic understanding of what is due relies upon applying the principle of equity as a foundational axiom of justice.
- Two efforts to achieve equity are the Golden Rule and Kantian Duty Ethics.
- These efforts are quite different in their warrant; additionally, each suffers from fatal flaws in its effort to achieve equity.
- The Golden Rule suffers from a split injunction: in its Christian form, it urges a Christ-like self-sacrifice; but when it seeks equity, it bases its appraisal on universalizing our subjective desires, yet nothing about that effort requires an understanding of what is actually due.
- Duty Ethics universalizes our behavior and so it produces true equity if consistently employed, but it provides no motivation to subject our will to what is due to every other person in every preference.
- Duty Ethics also regards partiality to those we love as a violation of equity, but if it insists on equalizing concern for strangers and those we love, it can hardly be said to provide what is due, for the intimacies of love allow us to assist those in our inner circle with special concern and without regard to equity except that both strangers and family receive a baseline of radical respect; this distinction between our intimates and strangers implies that a working definition of justice must also include different duties to equity.
- The complexity of relative deserts will produce an effort to simplify the quest for what is due, leading to considerations of fairness, an example of which is John Rawls’s theory of justice-as-fairness.
- But fairness suffers from dichotomous meanings: either an equality of degree or an allocation based on comparative merit; persons use this term without clarifying their sense of it.
- An equality of degree is possible in quantifiable allocations but is less possible when judging quality because of inherent ambiguities in the meaning of “quality”; an equality of degree faces an insuperable obstacle to justice because it can only be maintained by ignoring merit entirely; however, the longer the equality of degree is imposed, the more inequalities of merit will be made manifest, meaning that continuing allocations based upon equalities of degree cannot be maintained, as has been demonstrated historically.
- Comparative merit is also impossible to allocate because it requires rank ordering merit or blame, but merit cannot be determined clearly because persons are affected by systemic, circumstantial, biological, characterological, and combined factors that cannot be calculated for any person and cannot possibly be calculated comparatively between persons, much less groups of persons.
- This difficulty seems resolved in efforts to find justice in courtrooms, where justice is in theory delivered as a cherished goal, so the conclusion that fairness-as-merit can be delivered in courtrooms seems to confront difficulties of metering it.
- Justice requires an equality-of-degree before the law, but when merit is judged, it is painstakingly examined not in comparison to other persons but to a standard of value that is discursively spelled out in law and precedent; it is only after persons have been categorized by this standard of quality that they can be compared within that category by a strict measure of equality of degree, the core requirement being the categorical assessment of what is due in comparison to that standard and the secondary requirement being considerations of slighter differences of merit applying to persons within each category.
- This appeal to a clear categorical standard as determinative of what is due leads us to seek the broadest and most comprehensive categorical standard of what is due all persons.
- Since persons’ efforts to understand that standard occurs earliest in life in the intimacies of love, we must reexamine loving relationships to discern how what is due is discovered and delivered in familial relations; we find an ongoing effort to seek what is truly good for loved ones, which consists of giving them what they need in the flux of experience; this is what those we love are due, and we find it mirrors as well as abets our efforts to satisfy our own needs.
- We determine what is needed by self-inspection and observations of our intimates and also by studying other cultures and history since needs are species-specific requirements of human flourishing; furthermore, because needs are moral ends rather than goods of utility, they are not used to achieve other goods but are good for themselves; in sum, they are incommensurable, universal, and transcultural.
- What is due to every human being is the satisfaction of needs, and this broadest of categorical files is the standard of justice.
- The problem now resolves to how we habitually satisfy the catalogue of our needs, but once we understand the complexities and demands involved, we quickly realize that we do not have the capacity to give all strangers what is due, yet equity demands that we treat all strangers by the same standard, which is a daunting challenge to moral agency as well as to justice.
- Equity demands that in the pursuit of our needs, we engage in claim-rights and exemption-rights with individual strangers so that all of us can satisfy our own needs and the needs of those we love, but if justice requires that we not help individual strangers, who will?
- The moral principle of ought-implies-can limits our efforts to assist strangers as individuals, but from earliest times, persons have affiliated to assist each other in the satisfaction of those few needs that cannot be satisfied by their own efforts but must be pursued in concert.
- This pursuit transforms strangers to fellow citizens, and that affiliation into government, whose purpose is to deliver justice in a very narrow range of universal needs.
- Government equalizes strangers so as to give them all their due; the needs it exists to satisfy can be divided into contributive, retributive, and distributive goods.
- All three of these functions are contentious because government can slight some citizens so as to advantage others if fairness-as-merit is the metric, but the difficulty is particularly acute in government’s duty to distributive justice.
- In judging what is due, government will be challenged by citizens on the grounds of fairness-as-merit; they will urge government to calculate fair rewards, but as shown, this is not possible to meter comparatively and if attempted will slight justice because some citizens will not get what they need to flourish; provided the means to flourish is universalized, government can meter distributive justice to citizens by facilitating citizens’ satisfaction of their needs regardless of flawed efforts to estimate fairness while bearing in mind that this assistance will not relieve citizens of the responsibility to make use of what is provided.
- Most needs will be the responsibility of individuals, who will seek satisfactions by their own efforts and with the assistance of their circles of love, so the range of government’s role in dispensations of justice is very narrow, but it can be done by no other social entity.
In his excellent book on categorical knowledge, Six Great Ideas, Mortimer Adler takes on the concept of justice. If we want proof of the difficulty of the topic, we have only to observe that Adler largely fails in his effort to conceptualize justice and relate it to his more successful effort to frame the other ideas we judge by and act upon. Unfortunately, his failure occurs early in his treatment of the term. He does not clarify how we might share our understanding of an idea so deeply rooted in private experience and how it differs from related concepts like fairness, liberty, and equality. My purpose in this analysis is to repair Adler’s errors and present a fuller treatment of the single most important term in moral reasoning while centering justice in a larger epistemic project of public morality.
The problem is not definitional. Unlike other complex abstractions like love, freedom, or God, justice has a single and simple meaning that all sides will agree to. It now means what it has always meant since the time of Aristotle. Justice is defined as what is due. In the absence of any application in experience, we can declare victory and move right along to something else. The only remaining difficulty is to determine just what is due in every person’s many and varied experiences. And that problem becomes a bit more difficult if you think, as I do, (a) that individuals’ experiences are unavoidably private and perspectival, and (b) that individuals naturally slant their perspectives to their own advantage, thereby making “what is due” eternally subject to bias. Adler agrees with this rather dour view of our inclinations, yet still insists that despite them we carry around a common conception of justice. To support this contention, he reminds us that juries are asked to concur on what the defendant is due in criminal trials, that judges hand out punishments to those defendants when they are found guilty, that jurisprudence consider these sentences to be just ones, that laws must be obeyed when just and disobeyed when they are not. He is not wrong to appeal to all of the apparatus of what we call “the justice system,” administered by a “Justice Department” devoted to apportioning guilt or innocence, credit or blame, culpability or damages. He might have added the entire corpus of legal codices from Hammurabi to the U.S. Constitution; every expression of natural, human, and civil rights; every exasperated spouse’s appeal to the conscience of her beloved; and every child’s request for fair portions of every birthday cake ever sliced (see “Natural and Political Rights”). All of these seek allocations of what is due. So what is all of this appealing to if not a standard we all somehow possess even if we cannot explain how we came to have it or agree on how to apply it?
Perhaps you see the problem that Adler evidently fails to. Every time the standard is applied, it is disputed. After 3900 years of legal codification, we have no universal laws, no consensual conception of rights, no international constitutions, no undisputed penal codes. And after eons, no standardized patterns of marital concord, and never a birthday party where some child might observe his neighbor’s slice without envy. If justice is a concept we share, it seems we share it as unevenly as that child suspects that birthday cake was cut.
We are forced to conclude that the definition of justice is inapplicable, incorrect, or incomplete. The first and simplest explanation is that the definition is correct but inapplicable because human nature is defective or depraved. We know what is due but cannot deliver it consistently because we are blocked or incompetent in the effort. Alternatively, we can say that the disconnect between conception and completion proves that the traditional definition of justice is incorrect, that the term implies something different from what is due. So quite naturally those who seek “what is due” will be dissatisfied with what is delivered if justice means freedom or fairness or equality or force. The third possibility is that the definition is correct but misunderstood and therefore misapplied, that justice is achievable if we correctly understand what is due. Thus what is required is essentially a longer and more complete specification of what is due. These three possibilities are exhaustive but not mutually exclusive. Some partial combination of these three explanations may more capably explain the disconnect between our search for and our success in finding justice when we seek it.
Our repeated failures to deliver what is due or refine our understanding of it — consider the debate on race and the penal system today — tempts a quick concession to defects in human nature. Perhaps Adler is correct that we know what justice is. Perhaps we simply are too flawed to deliver it consistently. Skeptics will observe that individuals and governments fail to find justice even when they earnestly seek it, and cynics will add that they rarely seek it and so never find it. Explanations are readily available for these failures. The most common is a theory best expressed by Reformed Christian theology, and it is one that nearly any moral theory must confront (see “Three Moral Systems”). We are selfish creatures whose own interests dominate all considerations of preference. But the very existence of moral theories hints that there is some flexibility in the degree to which our self-absorption dominates our choices. If we are truly depraved, then we cannot rise above our sins. If we can rise occasionally, whether by external grace or internal resolve, then perhaps we can rise consistently and are not condemned to injustice. There is at least some reason to think this true. A total surrender to selfishness is an impossibility, for even the worst person we can imagine rises above immediate self-interest on occasion.
But what does she rise to, or to put it in moral terms, what ought she? Note that we are discussing justice, not charity. If the bar for what is due is impossibly high, we should not wonder that it is seldom cleared. For instance, if love is our due, which seems a central moral demand of the Christian faith, then justice really is inapplicable. Justice concerns what is deserved rather than what is freely given in generosity of spirit. Perhaps Christians’ charge of depravity involves an exaggerated expectation rather than a deprivation of justice. To ask it simply: to whom is love due and what is the nature of that love? In the ideal, empathy requires we feel what all others feel, and many persons demand that degree of filial devotion from each of us for everyone. This demand is impossible, and cynicism its inevitable result (see “Empathy: A Moral Hazard”). Christianity makes this demand a moral desideratum; it tells us that we ought to love all as we love our own family. Can this be anyone’s definition of justice, anyone’s sense of what is due? When Christians call humanity depraved, they are calling out what they consider a failure to a higher duty: not to justice but to love. This is not consistently phrased as a moral duty even by Christians themselves, presumably because it is so difficult (see “What Is the Christian’s Moral Duty?“). Sometimes it is preached as a willing bestowal that we are free to order in the moment. So which is it: moral obligation or pious preference? The unavoidable conclusion of any dispassionate reading of this level of concern for all is that justice cannot be synonymous with mercy, love, or caritas. Reason reinforces what observation makes plain. Even in the ideal, mercy cannot be synonymous with justice but can be applied only after just deserts have been determined. So even in the abstract, we ought not confuse the terms. Who could imagine that the same level of concern we show to those we most love is due to all others, including the strangers we pass on the street, and the strangers in foreign lands we will never know without making the active effort that Christian duty implies but sensibly fails to expect, one honored far more in the breach than the observance? We cannot call love something others deserve if we also see it as a supererogatory gift, a willing beneficence rather than a debt to be paid. In considering the blanket charge of human depravity, we can see how quickly the accusation dissolves into a definitional issue, meaning that the charge of inapplicability dissolves as well or is at least forestalled until an adequate definition is found.
Though we may deny that a universal beneficence is due, we ought not go to the opposite extreme of imagining that nothing at all is. Rather than a relentless self-sacrifice, perhaps what is due is a tempered self-interest. Merely living in association with others necessitates a give and take, whether it involves obeying traffic laws so we can get where we are going or paying taxes to support fire and police protection. These are occasions wherein our self-interest and broader public concerns align. It would be depraved to sabotage what is truly good for ourselves merely to make an imaginary declaration of independence, yet this is just the position some libertarians take in their puerile search for total freedom. So while we may reject that all others are due our love, we ought not deny that we owe them something, if only to ensure that we grease the wheels of social intercourse for our own ends. The question now must focus on the extent of that obligation, the fulcrum where justice balances our own interest and others’.
In finding that median point, we can dismiss the cynic while still hearing the skeptic who argues that our very self-interest will habitually obscure — or our weakness frequently compromise — a consistent grant of what is due to others. And that charge has a bite, especially when we see it leveled against the only complete moral system that challenges it. Duty ethics is a deontological moral system, meaning it imposes a universal duty on every person regardless of context. It aims to neutralize the vagaries of our give-and-take with other persons by offering a maxim of human behavior that is profoundly just and that, according to its adherents, ought to be applied in any context. Its basis is the rule of equity, one of the two foundational axioms of moral reasoning (the other being the principle of non-contradiction, the essence of both rules requiring behavioral consistency). The rule of equity argues that whatever moral rule I apply to myself must be equally applied to other persons. I will not explain the profundity of that demand here, having delved in an earlier analysis into how Immanuel Kant, who founded duty ethics, made it the basis for his moral epistemology (see “The Essential Transcendental Argument”). What prompted duty ethics’ insistence on equity is the fundamental preferential freedom of every moral agent that imparts a dignity to her free will that others are bound to respect. This axiom then imposes a simple rule of moral conduct that grants every person equal due. We are to ask a kind of hypothetical question with every preference and, we may suppose, to habituate ourselves to act according to the answer we provide. Here is the question at the heart of duty ethics: What if everyone chose according to whatever moral code we are acting upon in this moment? I hope it is clear how profoundly equitable the answer must be and how uncomfortably binding it must be as well. By willing a universalizing of our preferences, we also will that we consider everyone else’s interests prior to our own choosing.
If duty ethics seems platitudinously similar to the Golden Rule to us, then it only reinforces their ambiguity or our own confusions, for the two moral principles are quite different, as I will show below. We may argue about their essential similarities, but no argument is possible about their utility. One needn’t be a skeptic to note that neither the religiously commanded Golden Rule nor the explicitly rational Duty Ethics has reformed our behavior sufficiently to produce what is due. That sour note moves the skeptic again toward the bitter conclusion that delivering consistent justice is simply not possible.
I wish to argue that this conclusion is incorrect, that yet again, the problem is not one of application but of definition, that for all its rigor, duty ethics is not a means to deliver justice any more than the Golden Rule is. First, while the effect of following either rule will be to standardize ends, their warrants are in deep tension. So for that reason alone, they are not even remotely similar moral injunctions. Further, their ends are not aligned to justice, though both seek equity. Their failures do prove that equity cannot be the only measure of justice. Skeptics who charge human weakness as the reason these rules fail to produce justice are mistaken. It is not persons who are weak but the rules.
The Golden Rule is a religious injunction that is powered by the religious authority that ordains its use. Leaving aside the incompatibilities of the seven major religious systems that preach some version of the Golden Rule, its source is universally taken to be divinely ordained, a command (see “The Fragility of Religious Authority”). It is in the nature of such things that the reason for obedience must be trust, definitionally a surrender of moral agency by the individual to the word of God (see “Authority, Trust, and Knowledge“). Kantian duty ethics relies on quite a different source of moral strength: an appeal to the active agency and rational judgment of the moral actor, who is asked to navigate experience according to a rationally conceived maxim of duty. This difference may be inconsequential or momentous depending on how deeply adherents wish to submit to religious authority. If they draw the Golden Rule’s power from its sacred source, they must also forswear the use of their own moral agency and attempt the impossible task of universal beneficence. If they secularize the Golden Rule, they may draw encouragement from concluding that both God and reason dictate the same behavior conducing to justice. Would their confidence in this reinforcement be lessened if that conclusion is mistaken?
It is. Though both of these imperatives lead to an effort to universalize behaviors, the efforts are as different as the source of each precept. Neither will lead to justice because neither intends to. Let us stipulate that outcomes can never be predicted reliably, so one must judge success more by intentions than the consequences of applying either rule. Neither will succeed, though, because each judges equity by a different standard.
The Golden Rule is designed to produce an equality of subjective intention. We aim to treat others as we would have them treat us. This is a free-floating and potentially amoral means to disseminate our own ends, whatever they may be, but it is equitable because it seeks to equalize outcomes. Without changing any of its wording, we find that the Christian interpretation of the Golden Rule is quite different. It is anchored by a particular end: to self-sacrifice in imitation of Christ as the ultimate act of love for another and for all. If this end is pursued, the Golden Rule will not be in the least equitable. Jesus’ example is always to place the good of others above one’s own, teaching unlimited self-sacrifice as the ultimate end. If we are to follow his example, then each person will face the duty of sacrificing her own interests so as to guess the interests of the persons for whom she sacrifices them. That seems inefficient as well as inequitable to the moral agent, a problem compounded by universalizing concern without specifying the intended result of the concern beyond whatever the giver thinks is loving. One need not be Christian to embrace the Golden Rule, though. If one should embrace the more generic intent of simple equity of behavior, she has vastly simplified and eased her task, for now she is not made to love all others but rather simply to project her own desires onto them. Notice that she still faces the question of whether what she “would have them do” is genuinely moral. The fatal flaw of “do unto others” is that one is never told just what to do. Ought the self-piteous moral agent bestow a gratuitous pity upon all others because she desires it for herself? Ought the misanthrope ignore the rest of humanity in her quest to be left alone? In this reading, the Golden Rule works wonderfully to universalize subjectivism, a mind-bending prospect. It entirely discounts what is just in favor of what is desired and only specifies that whatever it is, that it be mutualized. It would indeed be a handy maxim to require just behavior once one determines what just behavior requires, but it cannot accomplish that goal before “what is desirable” can be separated from “what is desired.”
Kantian duty ethics seeks to correct the Golden Rule’s mistake of universalizing the moral agent’s interest by utterly rejecting it in favor of universalizing everyone else’s. One defers choice until she determines the likely effects of any preference on all other persons. To be clear, this is an improvement over a Golden Rule that authorizes any kind of behavior we choose for ourselves, presumably including the Christ’s example of total self-neglect. Kant’s maxim, if followed consistently, will produce an equality of intention that holds our own desires to be neither less nor more important than anyone else’s. That makes it equitable and rational, while it holds us responsible for all for our preferences. So far, so good. Unfortunately, duty ethics provides little motivation to work so hard for others’ good. When asked if practicing duty ethics makes one happy, Kant famously replied that it makes one worthy of happiness. The distance between the effort required and its reward was a primary reason Kant postulated an afterlife to balance the scales (see “Religious Knowledge as Mobius Strip“). We are entitled to ask if this postmortem justice is a sufficient incentive to engage such weighty earthly responsibilities. Duty ethics certainly succeeds in putting everyone’s interests on the same plane because its aggressive leveling is based on the equal dignity that all persons share. As such, its maxim is a fine counterweight to self-interested bias. That is not enough to save it, though. If the Golden Rule fails because its duty of loving everyone is impossible, duty ethics fails because its rule of loving no one is equally so.
It turns out that equity is not the only rule of justice (see “The Moral Bullseye”). In the Christian articulation of the Golden Rule, love orders all. This is such an impossible arrangement of moral furniture that nearly all Christian theology shies away from Jesus’ example of total self-sacrifice for the simple reason that it cannot be done (see “A Problem with Sacred Texts”). Without the Christ’s example as an end, the axiom that powers the Golden Rule is unclear in its duties, as said above, but it is quite clear in drawing no distinction between one’s treatment of strangers and of those we love most dearly. All are to be treated with whatever level of concern the moral agent desires for herself. This variability will complicate public interactions where the Golden Rule is applied as a maxim. For some persons in some situations, what is due will be meted out, but accidently, as some windblown seeds will settle on fertile ground. Perhaps the moral agent will take seriously a duty to love all, in which case she will fail, or perhaps she will simply expand her desires to all those she meets, which can be done but will also likely fail if what is due is the desire, since so many other desires might be chosen as the desideratum. Duty ethics provides a consistent means to produce what is due and only what is due: we are to practice a strict equity toward strangers and those we love most dearly, for in deontological logic, circumstances cannot affect a universal maxim, so preferential satisfactions for those we happen to love must be unjust to those we do not. Therefore, all are to receive the same treatment. How can we think it moral to deprive our loved ones of our own concern so as to spread it amongst a world of strangers? But as duty ethics reminds us, how can we think it just to do otherwise? In the name of equity, on what grounds can we favor our intimates over strangers?
That charge requires a response. Why care more for those nearer our own concerns if not because we unjustly privilege their interests? Consider the infamous questions deontological ethics always poses: would you sacrifice fifty persons you will never know to save the life of your mother? In a famine, is it just for you to distribute your last morsel of food to your own malnourished child rather than to a starving stranger? No understanding of justice can succeed if it cannot respond to a charge of the injustice of offering favorable treatment to intimates over strangers. Such behavior is, after all, our tribal inclination. When pursued to the extreme as in the example of saving one’s mother at the expense of strangers, it is clearly unjust despite the instinctual tribal favoritism that has every infant turning away from the stranger to the cooing reassurance of her parent. And this charge can be argued from the opposite perspective once the infelicities of family life are fully faced. Feminist moral theorists have long noted the distance between the ideal of familial love and the practice. They conclude with good reason that even in the closest tribal affiliations, persons are bound by justice as a minimal baseline of equity. And this will prove the key to arbitrating the equity of what is due to strangers and to the ones we most deeply love.
To answer the questions above, it is unjust to strangers to sacrifice them for the sake of your mother, but it is not unjust to the starving stranger to give the last morsel of food to your own child. The difference in the two situations is key. Your mother is no more important than anyone else’s, and your child is no less. Radical respect is a deontological necessity of human treatment and is the minimal human due, but it is not the maximal one. If justice demands equity on the basis of human dignity as Kant describes it, then no person is due less. But those we love are due more than justice because our fates are inextricably connected by our common pursuits. No duty to strangers need deny our favoritism toward those we love so long as we do not deprive strangers of what they are due based upon a minimal baseline of equity. Tribalism is the instinctive recognition of the mutuality of love. It is to be nourished as a moral good provided it does not seek to deny justice to those outside one’s own tribe.
A bit of analysis is necessary to flesh out this central moral relationship. No moral system deserves to be taken seriously if it denies that those we love are due more from us than strangers. The sheer number of strangers disallows favoritism to bestow a baseline of equal treatment, a conclusion required by the moral principle of ought-implies-can. It stipulates that no moral responsibility ought to be imposed unless it can be satisfied. A universal beneficence simply cannot be imposed because it cannot be satisfied. Our intimates are few in number, and though we owe them that same baseline treatment, we know that loving them demands more, and we can deliver it to them, and in mutuality of love, they can deliver it to us. Clearly, this mutual beneficence goes far beyond justice and is founded upon love. In the case of the inner ring of our moral bullseye, we are dealing with a different set of needs from the strangers we pass on the street. If we seek a complete understanding of justice, we have to complete our understanding of the difference between what is due to strangers versus what is due to our intimates. The existence of a three-ring moral bullseye of self, loved ones, and strangers precludes the kind of universal equity of treatment that nearly every universal or absolutist moral system has prescribed. Its existence cannot be fudged, ignored, or papered over in the interests of clarity, consistency or purity of purpose. Once admitted, it forces the conclusion that equity itself is insufficient to the pursuit of justice.
All of this thinking about relative equity will surely introduce an effort to seek simplicity by appealing to a much less difficult term. Perhaps it might simplify our search for a working definition of justice to equate it to fairness. This is not a naïve connection. The most famous theorist on justice over the last century made the relation explicit. John Rawls’s highly influential 1971 A Theory of Justice unapologetically uses fairness as the measure of justice. Rawls proposed a modernization of social contract thinking to apportion distributions fairly. He advised that persons imagine themselves initially approaching theoretical social and political status in a “veil of ignorance” wherein they have no knowledge of their actual condition in their milieu, meaning they might well be on a bottom rung of a social ladder. He asks them then to envision a social order that works for the least fortunate and advise that they actualize it in experience. Rawls’s dropping of the veil is simply a one-time exercise of Kant’s duty ethic. In Rawls’s estimation, the veil of ignorance forces fairness on future moral commitments so as to make them equitable.
The last half century has not been kind to Rawls’s argument, though his book remains a staple of contemporary political theory because it appeals to a modified contractarianism that is widely, if mistakenly, embraced as a legitimate model of democratic affiliation (see “Why Invent a Social Contract?”). It is absurd to think that a one-time role-playing activity can permanently leash self-interest to the public good. And there is an even more fundamental objection that questions whether such an imaginative exercise can ever be indulged. Postmodern political theory sees privilege and privation as determinative of personhood and therefore inseparable from one’s selfhood, so no attempt at neutrality can succeed (see “Postmodernism Is Its Discontents”). And it seems true that one can no more step behind the veil of neutrality than return to the womb (see “Correlation, Causation, Motivation“). We are born into a social order, habituate ourselves to it, and cannot easily step outside of it so as theoretically to revise it. And speaking of a return to the womb, the feminist theorist Susan Oakin notes that Rawls evidently thinks only “heads of families” are entitled to enter the veil to decide society’s form, which reflects the radical masculine orientation of the classical liberal tradition that frames Rawls’s thinking. It should further concern contractarians that a communitarian critique is as valid a criticism of social contract’s state of nature as it is of Rawls’s veil, so it invalidates an aboriginal contract as surely a a contemporary one. This is one reason postmodernists are so disdainful of contemporary democratic government. Kantian duty could never be a one-time exercise fertilized by imagination. Rather it requires a constant application of a maxim of self-discipline most of us are unwilling to take on while it provides almost no incentive for persons to take it on. As mentioned, it suffers one further and fatal deficiency in that it is also insufficient to the different requirements of loving relationships. Rawls’s simplified version is even worse and even less applicable, even if it is the most complete contemporary effort to equate justice with fairness. But this one effort’s failure may not entirely eliminate fairness as an achievable simplification of the meaning of justice.
Yet eliminate it we must. There are more than enough reasons to sever any connection between fairness and justice. Fairness always concerns allocations relative to and necessarily comparative among persons. It is judged by examining distributions of rewards or punishments among persons participating in the same experience. But even on its own terms, its meaning is compromised by the mental processing that constructs any discrete experience so that no two persons see even a shared experience in the same way.
But even if we could overcome the problem of perspectivism, fairness as a basis for knowledge is impossibly flawed. Remember that child’s birthday cake? What is the fairest way to slice it? Is it “more fair” to give everyone at the table an equal slice or to give the birthday girl a larger one? The same appeal to the same word thus produces entirely different allocations: either of equality of degree or of merit.
The most obvious comparative evaluation in a group involves a strict sameness of distributions (see “Kind and Degree”). Every child in the class is given the same punishment, every employee the same bonus. This understanding of fairness can be objectively quantified, so who could object? The birthday girl can, for she may say with good reason that it is only fair that the honoree deserves the largest slice. So which of two opposing results is actually fair? Libertarians will argue that it is only fair to give what is deserved, egalitarians that it is only fair to give in equal measure. We know some words have antonymous meanings. Words like “cleave” can mean to split apart or cling together, but context inevitably avoids confusion of its meaning. For those who think “justice” means “fairness of comparative allocations,” no such clue to meaning is grammatically required. For this reason, appeals to fairness invariably break down, for disputants use the same term to intend very different meanings. We can resolve this difficulty by choosing one or the other meaning of fairness to equate to justice and then move on, but how ought we to choose?
Equality of degree is easy to calculate in distributions that can be counted, but is much more difficult to meter in judgments of quality (see “What Do We Mean by ‘Good’?”). But even if initial distributions could be calculated with certainty, they would be difficult to maintain in distributions over time, for it seems manifestly true that some will come to deserve more than others. As a result, the mechanisms for equality of outcomes grow increasingly burdensome the longer arbiters aim to enforce them, as Lenin in the earliest days of the Soviet Union and Mao after the Great Cultural Revolution of 1968 both discovered. The slightest bit of liberty will produce inequality, and so long as justice is equated to equality of degree, the other measure of fairness, merit, will be increasingly stressed (see “The Riddle of Equality”). So not only are the dichotomous meanings of fairness in tension, but choosing one of the meanings will necessarily reveal over time very good reasons to prefer the other. As a result, when insisting upon equal allocations as fair, egalitarians will face ever greater pressures to define “what is due” in terms of merit, and history has shown that equality of degree inevitably gives way to considerations of merit and vice versa.
The same outcome follows upon seeing fairness-as-merit, for then initial inequalities, even if deserved, will grow so large as to choke off opportunity. And even were this not to occur, meritocracy would still be an even poorer way to figure what is due because it is so difficult to judge. The chronologically first question is this: who is to determine merit and by what standard? That quagmire might stymie the effort to begin with. But history shows that a judge will be chosen and the reasons for choosing made known to those persons being judged. Putting aside the validity of the warrant for choosing a judge of merit in the first place, that judge must be pitied. By her own best efforts, she will prove that a meritocratic distribution must fail as surely as a egalitarian one will, though perhaps more slowly. Liberty is our natural preference because human functioning relies on the freedom to choose. Success in choosing produces merit. Libertarians see this truth and therefore know an egalitarian case for fairness-as-equality-of-degree will fail and will kill liberty in the process. What they fail to see is that a meritocratic one must fail too. The cause lies in the nature of the attempt to judge what is earned by comparative evaluation of relative merit that must rank order distributions.
To succeed in opposing equalities of degree, meritocrats must claim that their judgments of quality are as accurate and specific as metering absolute equality, which always offers itself as a simpler alternative. This reality requires meritocrats to concede that a failure to meter degree of merit accurately will by their own valuation produce unfair distributions. Egalitarians will always advocate an equality of degree of allocations, pushing meritocrats to seek the same level of precision. But merit cannot be comparative unless all the factors that enter into it are capable of calculation. The problem is that judgments of quality cannot be calculated by degrees, so when persons’ merit is judged, no matter who does the judging of what allocation of reward of punishment, no accurately metered, relative ranking can result. And this difficulty is more disqualifying than merely the failure of judging qualitative differences with exactness. Even approximations of qualitative merit prove impossible to deliver, so defending their judgments of who deserves what becomes more and more difficult to defend when one seeks to examine the causes of meritorious behavior. Five factors complicate the effort to the point of absurdity. They are systemic, circumstantial, biological, and characterological effects, none of which can be metered by any judge to apportion relative merit, and an even more impossible fifth factor that is the interaction of the other four. When one thinks on the difficulties of assigning value to any kind of comparative distribution to persons based on merit, the hubris involved is stunning.
Let us be clear about what is being sought here. Since the nature of fairness involves relative allocations, meritocrats are seeking what individuals or groups deserve in comparison to others who ought to receive more or less. Even were that to be possible, the current social climate will raise suspicions of bad faith and misuse of power (see “Belief in the Public Square”). In a civil society, the judge of comparative social rewards and duties must be civil government, which is tasked with assuming a dispassionate stance on what is deserved in distribution or retribution. As we explore the reasons fairness cannot be allocated between any two individuals in terms of merit, think about the complicating factors involved in allocating relative merit between privileged and deprived groups whose individual members contribute more or less to profiting or suffering from the original deprivations. If relative merit cannot be allocated between two individuals, clustering them into groups of comparative merit must prove even more difficult because each member of each group is subject to the five factors affecting merit mentioned above. That becomes very obvious when we delve into the qualitative components of these factors.
First, all merit or blame occurs in a societal context that affects it to a degree. How can that degree be determined when individuals are clearly more or less subject to its influences? Call this a systemic factor of cultures, privileges, deprivations, and advantages that signal unearned products of the social environment that persons are born into. Even to see it in such broad strokes obscures that at any one time or in any one community, the micro-environments that individuals live in affect their experiences in radically different ways. These are all the factors that Rawls’s veil of ignorance asks us to ignore so as to imagine a perfect initial equality, a fair starting line. The reason Rawls thought it necessary is that these systemic factors advantage or hinder persons before they even begin to earn whatever merit or blame is being judged. Libertarians, who have been advantaged by these broad environmental factors, will deride these as insignificant, but since they are the ones insisting on strict calculations of merit because they are lifted up by them, they surely cannot dismiss them and claim whatever follows to be fair.
But even thinking in these terms will drill down on the details of persons’ experiences to reveal other affective factors leveraging their merit or fault: illness, accidents of opportunity, chance misfortune. These circumstantial factors are what the ancients called the power of personal fates, and they affect us as indomitably as they affected our ancestors. In order for a fair judgement of merit, every kick and kiss of fate for every individual being judged must be factored into the mix because they influence rise and fall, and if groups are being compared, these individual circumstances must be adduced just as thoroughly to calculate group merit.
And as surely as life’s winners will credit their own resources while its losers will likely blame the winners, the way we respond to environment and circumstance seems to be affected by innumerable biological factors that we are only now beginning to comprehend: the inheritances that grant intelligence and athleticism to some and disease and disability to others, the genes that environment may activate or make inert, brain chemistry’s manipulation of the mind and will. These are no one’s achievement and today’s neurological and genetic science has hardly begun to investigate them. But science knows that heredity and environment dance to the tune of experience in ways we can only surmise. And these influences too will facilitate or handicap a lifetime of consequences. How do these affect what is due to any comparative calculus between persons, much less between combinations of persons?
The fourth incalculable factor is what the meritocrats wish to focus on to the exclusion of everything else, the factor of human intentionality that once was called virtue or sin. Affective factors ameliorate fault, but they cannot lessen our responsibility to deal with the hand we are dealt (see “The Death of Character”). Once called character, this self-creation is now termed motivation as a tribute to the human sciences’ efforts to reduce the complexities of human preference to the passive voice (see “The Calamity of the Human Sciences”). Psychology has made us all too aware of limitations on our freedom that are far too complex, submerged, and contentious for our own understanding. Unfortunately, it also misleads us into thinking that some external expert can understand them, which only perpetuates the error of imagining that their influences upon the strength of our character can be understood in just the same way as an engineer might understand the tensile strength of some building material. But if anything, an outsider is even less capable of judging these issues than we are, and no expertise exists to master this knowledge because human experience is far too variable to allow it (see “Expertise”). The black box of human preferential freedom is as resistant to comprehension as to outside manipulation, despite the current language of “triggering” and material consumption. Character is the composite of our reaction to experience, but the thought that anyone can judge comparative merit of persons’ character is an offense to their dignity. Yet character is probably the most affective quality of all these factors, the most determinative of a merit that even its possessors cannot fully gauge because we cannot know how it has been stiffened or eroded by the systemic, circumstantial, and biological influences in our own lives. The human sciences remind us that our psyche is only partially our own property, though their motive is less to instill humility in judging others than submission to their determinist efforts. It is abundantly true that character counts in the core human function of preference, but it must be immediately observed that no one has its number and no one therefore can compare it to another’s.
And if this most clearly defined element of preferential freedom is so difficult to judge, especially by someone other than the moral agent who exercises it in every moment of experience, then surely the combinations of these four factors will deal a fifth and fatal blow to fairness-as-merit: the indeterminism of interactive factors affecting comparative merit. Yet comparative merit is precisely what is being calculated in every such judgment of fairness.
Postmodernists will object that I am granting more legitimacy to a meritocratic argument than it deserves. than they deserve. They will argue that all this talk of “just deserts” is just a smokescreen to preserve privilege, that libertarians use the fairness as a code word for the bundle of inherited advantages that extend a longstanding exploitation. As if to confirm this harsh view, there may yet remain a few libertarians who are unabashed in agreeing that inherited privilege is less a sign of injustice than of an inherent superiority of class, color, gender, or nation. They argue in essence that they deserve their privilege not by virtue of what they have done but because of who they are. Their appeal to merit is a self-aggrandizing smokescreen to ignore the egalitarian’s argument that all persons deserve equal justice by virtue of their human dignity. This meritocratic argument is too self-serving to be thought sincere, and in advocating for a meritocratic society, these elitists commit all the hypocrisies that postmodernists delight in uncovering, lending added force to egalitarians’ demands for an absolute equality of degree as true fairness.
And so the societal see-saw rises and falls as fairness-of-degree and fairness-as-merit struggle in the public square, each in turn submitting their case to weary and increasingly cynical public who see one side as utopian and the other as hypocritical. Neither the contenders nor their exhausted audience take note of the conceptual errors of their judgments. And no one seems to see the proper fulcrum of what ought to be a wholesome balance of efforts to arbitrate liberty and equality is not fairness but justice (see “Economic Justice“).
We ought to reject doomed efforts to seek fairness and redefine justice by using better conceptual judgments. The key word here is “judgment,” and that prompts thoughts of courtrooms, lawyers, and trials. But if fairness cannot produce justice in courts of law, on what grounds can legality be defended? Doesn’t every court in the land operate upon the explicit contention that merit or blame can indeed be found even against the backdrop of the five affective factors just mentioned? Isn’t the courtroom the setting where fair judgments are given, and if courts can find justice this way, why can’t everyone?
Allow me to begin to answer that question with a preliminary parallel. We might ask a similar question of natural science. If natural science can confirm real truths in the kinds of experience they examine, why is it so difficult for us to do the same in our own daily lives? How can we find justice in courtrooms but not in ordinary experience? We will find, I think, the same answer in the courtroom that we find in the laboratory: Empiricism works because it successfully limits the nature of the experience under investigation and follows strict rational protocols so as to analyze that very limited experience. Courtrooms do something very similar, though with somewhat less precision. A trial resembles a laboratory experiment. First, it is a formal environment governed by articulated rules of procedure. Second, this procedure is carried out by experts: specialists in particular fields of knowledge and skill. Third, at the center of both is an intentional refinement of a single experience. Fourth, before entering the analysis, the nature of the experience under review has already been articulated so as to modulate the analysis. I mean here that just as some physical phenomenon is classified as amenable to, say, a chemist’s analysis, so too is a trial assigned to, say, a civil court. I have tried to prove that ordinary experience does not provide us with the necessary precision to judge fairness-as-merit and that it is arrogant to assume a facile understanding of the subsurface factors one would have to investigate to find true merit. The aim of the laboratory and the courtroom is to bring the hidden foundations of a single experience to reason’s attention. Both seek truth-in-experience. The laboratory exists to find it. But the court aims even higher, though its aim must be less accurate: it also seeks the true good of justice as what is due.
So we can say that in the ideal, the justice system does indeed seek to determine merit, but it also seeks to determine it in what is, in theory, the strictest setting of an equality of degree. So are courts defining fairness-as-merit or as equality of degree? And if they seek both of these, how can they do it? And if they succeed in the effort, then can we use fairness as a shorthand guide to justice after all, despite its difficulty of calculation?
It is true that courts in the ideal do seek to evaluate merit, but not comparative merit between persons because courts theoretically rely upon the strictest equality of degree. The words etched over the Supreme Court’s entrance make it crystal clear that what is due entails “equal justice under the law.” So if we seek fairness in the justice system, we ought to find it, not of comparative merit but of absolute equality of degree, Leaving aside for the moment how incompletely that ideal is realized, let us ask how and why it is necessary and thought achievable.
First, a courtroom is the very antithesis of an attempt to judge comparative merit between persons. It is instead a torturous effort to judge individual merit in singular experience, a recognition that every experience is uniquely composed and unrepeatable. No person’s experience can be compared to another’s. It exists in a closed loop of time and space. Courts inspect and dissect those very particular moments to reward or punish, to judge guilt or innocence, to find fault or favor. But if every experience is unique and if affective factors so influence it, how can it be judged at all? A close look at legality will reveal two means to accomplish the task.
First, law relies on discursive language and strict categorizations whose purpose is to judge persons’ actions by some standard of value that has been clearly defined. If you think of the language of codes of law — their specificity, concreteness, and order — you will see a valiant effort to bind unique circumstance to categorical conception. Because human behavior is nearly infinitely variable in experience, legalities that evaluate them must put unique experiences which can never be fully catalogued into classes that can be separable. So we see law divided into criminal and civil codes and the courts sorting criminal law into misdemeanors and felonies, and felonies into various kinds and degrees of criminality. This disaggregating process according to some standard of value or reprehensibility is impressive for its specificity and discursiveness. What is more, this effort has always characterized law and may be its defining quality and is implied in the meaning of “codex.” So, yes, law does compare experiences, not to other persons but to a standard of conduct that is exemplary as offensive or laudable. This categorization of what is due is the end product created by all the immensely cumbersome and professionalized machinery of the law. And even when this magnificent process spits out its verdicts, it is subject to appeal and reversal by higher courts. Thus is one person’s due determined in a court of law. When juridicial processes are seen as determinations of singular merit involving singular experiences that are torturously catalogued by reference to a discursively conceived code, all governed by a professionalized process that runs on elaborate rules of procedure, evidence, and appeal, we recognize how very difficult it is to judge merit or fault for any one person involving any one experience. And in the face of this complexity, can we also possibly think that fairness-as-merit can be comparatively calculated among two individuals or two hundred million by the casual deliberation of some supposedly neutral arbiter?
Our comparison to the justice system is not finished yet, for once judgment is rendered, a second set of deliberations and categorizations must be applied to determine punishment. This is a micrometer measure of value based upon a host of aggravating or extenuating circumstances that enter the deliberations of judges and juries, all of them persuasively argued by opposing legal counsels with deep professional training. Here we see how justice may be tempered by mercy and are reminded how formalized justice must be in order to be just to the accused while also granting equity to all those subject to the same legal standard. Anyone who has ever served on a jury knows how deadening all of this detail can be in this second phase of determining what is due. Now that a putatively accurate categorization of a single experience has been determined — felony violation of state code such and such to this degree — the search for the correct sentence is calculated. Again, the details of experience are rehashed, the systemic, circumstantial, biological, and characterological factors are considered yet again according to some catalogue of mitigation, and relative merit again pronounced. This second round considers as many of the affective influences on person and the experience being judged as might impact what is deserved, but as thorough and thoughtful as it may be, it is subject to further review by courts of appeal. Here is proof that even in examining the single experience of a single person, the five affective factors affecting merit are difficult to apply.
What can we learn about fairness and justice from comparing the casual arrogance of judgments of comparative merit we so frequently observe to the processes of the justice system? First, we learn to compare persons to valid categories rather than to each other if we wish to find justice. All convicted embezzlers have stolen from their employers, though some far more than others. But the purpose of the file is hardly to compare them to each other. Rather it is to compare them to a standard of judgment that allows them to be catalogued. so as to receive their just deserts. Their unique actions are not comparable to anyone else’s. Seen in this sense, the key to giving persons in court what they are due is an equality of kind judged in relation to a standard of value (see “Foundations of the Law: An Appetizer”). Fairness can never be comparatively judged until it is subsumed to some standard of value that produces an equality of kind, a categorical quality that lumps all who share some quality or experience. The reason this process succeeds is that it seeks a common conceptual category independent of circumstance. In this way, actions with all of their unique particularity and context are not judged. Instead, entire categories are rationally and dispassionately evaluated for merit or fault and this categorical justice then becomes the standard against which an effort to gauge particularity is made. This strict equality of kind is the means to find justice. Persons judged justly then are judged by a quality they share with others in that same category to an approximately equal degree. The lesson here is how impossibly difficult judgments of fairness in experience must be. But even given that limitation, we are reminded that some standard of value is necessary to anchor determinations of what is due rather than a relative comparison between persons. All that is left is to find the category in our own ordinary experience that defines in some unequivocal sense the most universal standard for what is due, though we can be certain that it will not be a comparative one.
Before clarifying that standard, I wish to deliver a final verdict on fairness as the means to justice. When treated as a strict equality of degree, it is achievable to equalize comparative distributions only after the standard defining “what is due,” is made clear. Otherwise, it must ignore what is deserved as it seeks either to compare merit between persons or to impose a comparative equality of degree between persons that simply cannot be maintained and mauls what is due. It is gross arrogance to assume that any judge can comprehend, much less calculate, the systemic, circumstantial, biological, characterological, and combined influences that affect merit. Blame for this hubris must be laid at the feet of the human sciences — criminology, sociology, anthropology, and economics — that seek to operate by the same deterministic predictability as the natural sciences. Lay persons are asked to sanction that effort. They expect that criminology can arbitrate the factors affecting human responsibility sufficient to produce a reliable judgment on culpability in trials. Psychology claims to uncover the submerged directives of the unconscious that defendants would not be aware of. Social anthropology pretends to measure the effects of cultures on individuals. Economists seek to predict criminal disposition by income level. None of this is possible, nor will it ever be so long as individuals think themselves the authors of their own lives and exercise what they take to be their own preferential freedom to choose the goods they value. Those inside the justice system on both sides of the bars know this is so. But the general public straddles two public axioms of moral commitment. Some think persons the pliable products of forces beyond their control, concluding therefore that they cannot be judged fairly: that courts choose to ignore the factors that sway responsibility when they actually can only loosely gauge them. Our legal system is built on a different axiom, one that holds persons legally responsible for their actions. That is certainly not fair as has been shown. We cannot answer whether it is just unless we disconnect justice from fairness and articulate the broad standard for what is due. That standard will both define and regulate the dispensation of justice. It will provide the only correct and applicable definition that is required.
What are persons due in any and every circumstance and experience whether governed by law, custom, or cultures? By what standard can they be judged so as to proportion what is due?
Libertarians will say they are due their freedom, and therefore that freedom is the true definition of justice. In this, they are utterly mistaken. Even to propose liberty as the greatest good, they must capably define its meaning, and that is no small thing (see “Our Freedom Fetish”). Once properly understood, freedom’s centrality to every sphere of human affairs becomes more apparent, but so too the duty to use it responsibly. What does justice require of freedom, given the complexities of and influences on each person’s experiences, never mind the exponential complexities of all persons’ as they interact in their varied pursuits?
As observed, some say that standard ought to be one of unlimited love. Aristotle famously said, “If all men were friends, there would be no need for justice.” It is possible that we can take the entire category of loving relationships off the table here because we recognize that human relationships based on love for families and friends are based on an entirely different standard of preference. We have so far established two different standards of equity: the justice due to all persons-as-strangers, which is the professed aim of law, and the active effort to satisfy the needs of those we love, which goes far beyond what we owe strangers. Though we give these relationships what is due as a minimum — and those close to us deserve justice on the grounds of their own human dignity — to engage in love is definitionally to offer more than what is due. And this is helpful in applications of justice. As we all know, most of our lives are spent in the company of those we love, and our interactions in that sphere are so changeable, the needs so variously expressed, that merely calculating what is due in every circumstance would be too exhausting to figure consistently. Instead, we operate intuitively as we try to give those we love what we think they need in any moment, metering our attention and affections by a calculus too personal and fluctuating to be fully understood in the moment, giving and taking in constant interaction. But this universal process of learning to live in close contact with others offers a poor template for a generalized treatment. All persons are not our friends. We cannot take that level of concern to the whole world, but we will still find real value in inspecting our loving relationships to see what we can take out into the public square.
What do we take from private life into public interactions? It is the concern with what we and other persons need. Love is intimately concerned with and indeed can be defined as seeking the true good of the other. Who could argue that “true good” entails what the loved one needs? This satisfaction is surely possible for individuals to pursue in their circle of intimacy of family and friends for two very good reasons. First, we know them and willingly assist them in a moment-by-moment pursuit of the good. We can do that only because of intimacy and constant contact. Secondly, our love for them (and theirs for us) provides the motivation to put aside our own interests to assist them in theirs. Neither the intimacy nor the will to mutual sacrifice characterizes our interactions with strangers. This obvious reality renders all those pious pleas to love everyone to ring as hollow as store-bought sympathy cards. Even so, in seeking what our intimates need, we may derive some sense of a criterion, a standard, that characterizes the mutuality of loving relationships and the kinds of interests that mutuality serves. Our loving relationships are an endless set of adjustments as we balance our own needs and the needs of those we love. What is the scale upon which we balance desire and duty in this endless dance with intimacy? The answer to the question of what is due to intimates is this: all we love are due the satisfaction of our needs.
The family is literally the cradle of our first understandings of how we use preferential freedom to procure what we desire. In seeking the true good of our family, we begin the lifelong process of separating what we want from what we need. Experience in this circle of intimacy is our first exposure to what we may call common or universal needs (see “Needs Anchor Morality.”). They are not so difficult to identify because they have some peculiar qualities. First, because they are inherently moral goals that fulfill human functionality, they are easily seen as ends in themselves. When we ask why we seek to satisfy them, we can merely say it is because they are satisfying in themselves. There may be lots of reasons to befriend someone, but only one reason to befriend anyone: because friendship is an inherently satisfying form of love. Given their intrinsic nature as functional ends of human pursuit, we find needs to be universal, transcultural, and timeless. They are keys to human flourishing. They are all necessary and therefore all incommensurable, though this only becomes obvious through competently arbitrating their demands for our attention. We can locate them by any inspection of our own search for a utility of furthest ends (see “A Utility of Furthest Ends”). This is the work of moral reasoning (see “What Do We Mean by ‘Morality’?”). Such introspection will move us beyond pragmatic concerns of the moment that crowd upon us to obscure the more ultimate ends that we pursue for their own sakes. The family is in the ideal the safe space training ground for love to teach us these lessons.
It is quite difficult simply to contemplate these ultimate goals in contemporary life, in part because they are almost never thought through holistically and also because they challenge the minutiae of consumptive options that distract us in every moment (see “Cultural Consensus”). These tidal flows of ordinary life pull us into the moment-by-moment while still tickling the preferential freedom that is the defining quality of the human person (see “The Problem of Moral Pragmatism”). Systemic forces complicate this search, so we also must understand and manage the effects of great historical currents that affect entire environments and the persons interacting in them (see “The Axioms of Moral Systems”). Those same systemic, circumstantial, biological, characterological, and combined effects that make merit so difficult for others to judge also challenge our own moral responsibility, as we seek to satisfy universal needs beneath their culturally expressions. All this being said, it is far easier to identify human needs, even to isolate them from their experiential instantiations, than to habitually satisfy them. This virtue is the most difficult of tasks, but it is our highest moral duty and the source of all human dignity and rights (see “A Virtue Ethics Primer”).
As we begin the task of uncovering a universal category of needs, we are dogged by a second difficulty. It is difficult enough to seek true goods for those we love even when we have every motive to engage that search, and because needs are few and desires many, parents may learn the art of separating real goods from apparent goods in experience. With some tenacity and thoughtfulness, they pass that essential knowledge on to their children (see “The Tyranny of Rationality”). Only by developing an intimacy with those we love can we see their needs in the moment, and only by knowing our own limitations can we plumb our capacity to respond when rocked by the tsunami of circumstance. And it is only love itself that moves us to weather all those relational storms that have us struggle to maintain our balance while seeking satisfaction for those we love and ourselves. Now imagine taking that commitment seriously for every stranger everywhere. Make no mistake: justice demands equity, and what is due to you and those you hold most dear is also due to everyone you pass in the street and all those anonymous strangers whose needs are immediate, desperate, and crying out for satisfaction. Without gratifying our needs, we cannot flourish as human beings. Everything else is window dressing, but true needs can be neither denied nor ignored. Is our duty to provide that satisfaction? For whom? Does anyone take seriously the idea that we ought to love everyone, that everyone can be happy, that no child ought to suffer? We pay lip service to these notions, but we cannot take them seriously because they cannot be realized. To take them as true moral duty is to court a cynicism about what true moral commitments can accomplish in the face of their failures. When we start thinking that justice imposes a direct responsibility on each of us to respond to every stranger’s every need, we have navigated our moral considerations into very rough waters because if we were to make the attempt, we would have to deny satisfying our own needs and the needs of those whom we love.
This too is a rule of what is due, for though we may be no more worthy of flourishing than every other person in the world, we are also no less. But if the principle of ought-implies-can forbids an equitable response to all of those human needs, and if justice entails their satisfactions, what is to be done?
We can start to return to an even keel by isolating our private and public lives, recognizing that relations of love offer what is needed and more, but by inclination and moral necessity, we must take a different response into the public square. Where individual strangers interact, it is justice that dominates — or ought to dominate — interactions (see “Toward a Public Morality”). Even so, we cannot deny that justice for individual strangers means for them just what it means for ourselves: to receive what is due, and that means to satisfy needs. So keeping the principle of ought-implies-can in mind, we can finalize the meaning of justice by resolving a different question. Once we know what is due, and once we can provide it and more to those we love, whose duty is it to provide what is due to anonymous strangers in the public square if we do not?
First, that burden is eased as we observe that most of our needs fall upon ourselves to satisfy, and indeed our deepest moral responsibility is to meet our own needs. And when we are unable to meet that responsibility, we instinctively turn to those we love to assist us, which is reasonable because they already seek to assist us because they know us and they love us. Our felt natural freedom provides us the moral space to satisfy the vast majority of our own needs by counsels of prudence concerning their order of satisfaction. This is fitting. As we sit at the center of our own moral universe, we know best which needs to satisfy in which order as natural freedom exploits the reality we face (see “Truth and Goodness Do A Dance”). This is such a difficult, lifelong task that it imparts a right to a radical respect from others to allow us to pursue it. This claim-right is implicit in the public square. It insists that no stranger has a right to impede my efforts to satisfy my own needs and to assist those I love to satisfy theirs. But in addition to that positive duty imposed on strangers, a correlative negative duty must also apply to limit my claim on their attention. The reason is simple. If I ask more of them than to be left to pursue my own interests, they will be hindered from pursuing theirs. So my claim-right to be free to satisfy my own needs is balanced by an exemption-right that other strangers not be morally required to assist me. These rights are mutually imposed on individual strangers as they maneuver in public spaces to satisfy their needs. At some level, we all instinctively understand this, though conceptualizing the moral purpose of this mutuality is essential for systematizing preference according to the standard of justice.
In ordinary experience, we naturally blend the border between love and justice. We are not always loving to our family and friends, and at times are even unjust. And compassion moves us to assist strangers in a sympathetic outreach when we look up from our own interests. These are the kinds of exceptions that prove the rule, for the standard of what is due will neither break with our faults, nor bend with our sympathies, both of which more illustrate the varieties of experience than variation in the standard of moral responsibility.
But it cannot end with our interactions with those we love and individual strangers. Fairness cannot deliver justice, as has been shown. So something more is required to give all persons what they are due, and that something more is what relieves us from a claim-right to satisfy the needs of all strangers as we maneuver in the public square seeking to satisfy our own.
Since public interactions must be arbitrated so as to govern distributions of what is needed to strangers, as has been shown, we must inspect the catalogue of universal needs to see which remain to be satisfied once the spheres of love and the spheres of the mutual rights of individual strangers have been factored in. It then becomes clear that an entire class of needs remains: those that are too demanding for tribal affiliations of love to undertake or too onerous for individual strangers to be asked to satisfy. We may call this bundle of needs the contributive class of life’s projects necessary to give human beings what is due: those cooperative endeavors that only the combined efforts of strangers in community can accomplish. These have always existed as persons have always needed to solicit assistance beyond their tribal relations, putting the lie to libertarian claims that communities had to be invented out of whole cloth and that communitarian life must impinge on fair liberties. And there are other classes of cooperative endeavors that all persons are due: retributive needs for those who violate other strangers’ claim-rights and exemption-rights. These needs are designed to be dealt with in the justice system discussed earlier. Finally, the aggregate of strangers in justice must meet distributive needs for those who fail to secure the satisfaction of their needs for themselves.
Note this about this last class of distributive needs: justice demands they be satisfied even when fairness seems to demand they not be. We say that it isn’t fair that persons who choose to neglect their own needs and the needs of their loved ones have the right to ask total strangers to assist them. To ask it assaults our instinctive sense of fairness-as-merit in theory and it challenges our tribal favoritism for those we love in practice. And this position is bolstered by the exemption-rights we grant ourselves as individual strangers that explicitly exempt us from such obligations. But even phrasing the distributive needs of strangers as an assault on fairness returns us to those impossible calculations of merit that were rejected earlier. It does not matter in the slightest what persons deserve of strangers in fairness because fairness cannot be the standard of judgment. It is comparative between persons, not a rational categorization. We already know what those persons are due. The metric can never be comparative: what we need versus what they need. For the standard is the same. We and they are entitled to flourish as human beings, which is to say to meet our needs. And we know that this goal can be determined because it is a universal quality, a standard that can be judged by them, and us, and everyone. Except when deprivations are widespread, justice demands that every person have the means to flourish, though making use of those means must always fall to the moral agent involved. When the community of strangers can contribute to assist, it ought to as a matter of justice. It ought to because it can in those needs that it can satisfy. By the nature of the moral bullseye, the larger community of strangers cannot satisfy the needs of love or the compensatory efforts of friendship. Of course, there always will be persons who seem to forfeit their responsibility to satisfy their own needs. But no stranger has the capability to apportion the degree of that forfeiture. A stranger can, however, know the gap between what is had and what is needed because the standard must always be the universal human need that she holds as the North Star of her own moral compass, the source of all human dignity and right.
But because we cannot know all those strangers and all their unfulfilled needs without sacrificing the satisfaction of our own, we turn to an aggregate of strangers to share the burden of meeting contributive, retributive, and distributive needs. In the pursuit of that satisfaction, “stranger” becomes “citizen” and the ‘aggregate of strangers” becomes “government.” Governments exist to function as the arbiters of justice, now definable as what is due to citizens. This arbitration takes the form of contributive, retributive, and distributive goods placed upon the fulcrum of justice, the standard that defines what citizens are due. Seen in this light, all of government exists purely as a justice delivery system and citizens exercise a claim-right on it to perform a function no other societal entity can. Human rights involve the exercise of justice: to ourselves, individual strangers, and fellow citizens. Civil rights encode this exercise, though they may add other legal liberties so long as human rights remain central to government’s function. Finally, the principle of ought-implies-can must be applied to the citizens of jurisdictions outside our own. Sporadic efforts to assist other countries’ citizens activate our generosity just as individual acts of charity to strangers do, but they are no substitute for justice (see “Functional Natural Law and the Legality of Human Rights“). Unjust laws and unjust governments require civil disobedience from citizens and opposition from what is now fancifully called the international community of nations (“Preliminary Thoughts on Civil Disobedience: Natural Rights Issues”). The principle of subsidiarity ought to be applied so that satisfaction of incommensurable needs can be arbitrated by those closest to that need. When persons lack justice, they turn to their own resources, then their families, only after which they turn to their communities and their civil authorities to satisfy their needs.
We are awash in pleas for “social justice” today, conveying all the confusions of agency, merit, and comparative equalities of degree that one might expect of such a fuzzy appeal to a generalized societal agency that is entirely fictional. An appeal to social responsibility is useless if it does not prick the conscience of individuals to produce change. Moral agency, like human dignity that allows it, is an individual possession. To think it either diffused or concentrated in cultures offers us the advantage of making us aware of the need for societal change without holding anyone responsible for it. The essence of the pursuit of justice is intentionality. Whether pursued by individuals or in concert through institutions, justice is delivered only by private exertions or by institutions concentrating them. The change agent for social justice must always be the collective will of citizens exercised through their combined institutional power, of which civil government is the prime mover, though abetted by philanthropic and religious institutions in exigency. Both social justice warriors and private sector non-governmental organizations will object to this allocation of roles, but that is only because civil government has been completely derelict in its duty to justice in most nations, and other entities have attempted to respond to a need they cannot fully meet. Once human needs and our responsibilities to our own functional nature are understood, each citizen must seek justice as the public expression and the sole duty of government. The only way to achieve social justice is to understand that the collective intentionality of citizens expresses itself most fully through government and most adequately when government is clear and focused in its pursuit of justice. At present, that will is diffused by misunderstandings traceable in large part to defective contemporary understandings of justice. The laudable appeal to inherent human dignity that social justice warriors bring to the table is offset by appeals to absolute equality and historical inequities as the root of present relative disparities among groups. These analyses may be valid, but they play into the hands of defenders of comparative fairness-as-merit, who use the impossibility of calculating group deserts as cover for perpetuating historical injustice. Debate stalls over who deserves what slice of social rewards in arguments seemingly designed to stoke mutual resentments over continuing comparative disparities. It is only the hubris of the human sciences that lead disputants to think metering of past inequities could ever be just (see “Prejudice and Privilege“). The entire debate simply delays what has for too long been denied. Advocates for social justice ought to use their righteous indignation to supercharge efforts to satisfy contributive, retributive, and distributive needs of all citizens in every institutional jurisdictions. To be sure, the effort will naturally focus on those most deprived of the goods they need to flourish. In a just state with ample resources, the only persons facing such deprivation would be those citizens who refuse to utilize the satisfactions available to them. Even a moment’s thought of that ambition will be enough to sober anyone who sincerely seeks what is due to all.
So long as persons confuse their understanding of justice, of what is due, thinking its meaning to be arbitrary or its achievement impossible, imagining it somehow related to love or metered by fairness, they will frustrate everyone’s having it. When persons fail to get what they need, they notice, and they have the human right to demand what is due. It is not an empty bromide to say that justice ought to structure our public moral lives. A correct, complete, and achievable definition of justice shared by citizens provides the blueprint to build that structure.