Commentary Magazine


On Trying to be Just

To do justice and to receive it is an elemental aspiration of man. It is as elemental as the aspiration to live on after death, to be free from the power of other men, to exert power over man and nature, to love and to be loved. Justice, immortality, freedom, power, and love—those are the poles which attract and thereby shape the thoughts and actions of men. They have one quality in common that involves the distinction of men from beasts and gods alike: achievement falls short of aspiration. A beast does not seek to be more than it is by nature; while a god, being perfection by definition, cannot seek to be more than he is by nature.

Man alone is, as it were, suspended between heaven and earth: an ambitious beast and a frustrated god. For he alone is endowed with the faculty of rational imagination, which outpaces his ability to achieve. His desire to live forever must be satisfied by an act of faith which, insofar as it has an empirical basis at all, rests upon the tenuous foundation of things preserved and deeds remembered. His freedom is marred by the power of others, as his power is by their freedom. His capacity to love and to be loved falls short of his desire. And so it is with justice, but in a peculiar way. Freedom, power, and love, man can have; what he cannot have is the kind and quantity of freedom, power, and love he would like to have. But with justice, as with immortality, it is different: the question here is whether he can have it at all.

The school of thought that answers this question in the negative without qualification traces its ancestry to the very beginning of Western philosophy when Plato's Callicles and Thrasymachus defined justice as the interest of the stronger—that is, equated it with power. As Thrasymachus put it in The Republic: “. . . in all states there is the same principle of justice which is the interest of the government; and as a government must be supposed to have power, the only reasonable conclusion is that everywhere there is one principle of justice which is the interest of the stronger.” In this view, justice for the many who are lacking in power is an illusion. It is, as we would say today, an ideology with which the powerful conceal and legitimize their power, thereby making its exercise acceptable to the many who are weak. The invocation of justice, then, is an instrument of domination. In the measure that it succeeds, it makes the weak a voluntary subject of the power of others; it internalizes the power relation in the mind and will of the subject. In consequence, the invocation of justice serves the economy of power; for the more that power is voluntarily accepted as just, the less will it be necessary for the holders of power to impose it from above.

This view of justice has been echoed in modern times from Machiavelli, Hobbes, and Spinoza to Marx and Kelsen, and history seems to bear it out. Powerful and weak alike tend to equate their interests with justice. The powerful defend the status quo as just and condemn those who oppose it as unjust. The opponents of the status quo, in turn, proclaim the justice of their cause and the iniquity of things as they are. Nations, religion, classes, parties, litigants, parents and children, husbands and wives—they all fight each other in the name of justice. Since they cannot all be right, may it not be fair to conclude that they are all wrong, deceiving themselves and the world? Perhaps Mr. Justice Holmes had the last word on the subject when he wrote to Sir Frederick Pollock about judging “the goodness or badness of laws”: “. . . I have no practical criticism except what the crowd wants.” And perhaps we can do no better than Pontius Pilate by washing our hands and letting the majority decide what justice requires.

We are not here concerned with debating the view that justice is a mere illusion. Rather we want to show that, even assuming the reality of justice, man is incapable of realizing it. These two positions are by no means identical—any more than denying the existence of God is identical with the view that man is incapable of knowing God, even if He does exist. The position we are taking here has the advantage, at least for cognitive purposes, of coinciding with the one men have always taken because they could not do otherwise. Men have always thought and acted as though justice were real. We are proceeding here on the same assumption, but we are trying to show that man cannot achieve justice for reasons that are inherent in his nature. The reasons are three: man is too ignorant, he is too selfish, and he is too poor.

Justice requires that men give to others, and receive from others, what is their due. To be just, man must give to others what they deserve in view of their natures, desires, needs, and actions; and in order that justice be done to him he must receive what he deserves. But where do we find the standards by which we can measure the adequacy of what a man receives and gives? How do we determine the point at which a man gives and receives neither more nor less but exactly what is required by justice?

We all, as a matter of course, pass judgments which assume certain knowledge of such standards. It is the common quality of such judgments that they derive from a particular view of the world, of its constitution and purpose, and of man's place within it. When we say that it is unjust for a man to have so much power or wealth or to use his power or wealth in such a manner, we imply that we know how much power or wealth he ought to have and how he ought to use it. In our society such knowledge typically derives from an equalitarian conception which assumes that justice requires that disparities in the distribution of power and wealth be kept to a minimum. An aristocratic philosophy, on the other hand, assuming the natural inequality of men, will find justice in the unequal distribution of power and wealth and injustice in leveling them off. A libertarian philosophy will identify justice with freedom and be unconcerned with the issue of equality, at least in its economic aspect. And a theocratic philosophy may find both equality and freedom within secular society irrelevant to the issue of justice, since justice will be done in the other world by God. In sum, our knowledge of what justice demands is predicated upon our knowledge of what the world is like and what it is for, of a hierarchy of values reflecting the objective order of the world. Of such knowledge, only theology can be certain, and secular philosophies can but pretend to have it.

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However, even theology can have that knowledge only in the abstract and is as much at a loss as are secular philosophies when it comes to applying abstract principles to concrete cases. The two great Papal Encyclicals, formulating the principles of social justice for modern Catholicism, exemplify this insufficiency. In 1891, Leo XIII declared in De Rerum Novarum that: “Among the most important duties of employers the principal one is to give every worker what is justly due him. Assuredly, to establish a rule of pay in accord with justice, many factors must be taken into account.” Forty years later, Pius XI recognized in Quadragesimo Anno that “certain doubts have arisen concerning either the correct meaning of some parts of Leo's Encyclical or conclusions to be deduced there-from. . . .” And quoting Leo's definition of just pay, Pius has nothing to add but this paraphrase: “The just amount of pay, however, must be calculated not on a single basis but on several. . . .” “Relations of one to the other [capital and labor],” says the Pope in another passage, “must be made to conform to the laws of strictest justice—commutative justice, as it is called—with the support, however, of Christian charity. . . . The public institutions themselves, of peoples, moreover, ought to make all human society conform to the needs of the common good; that is, to the norm of social justice.”

It is clear that nothing follows from these abstract pronouncements, in good measure tautological, for the decision of concrete cases. Was it just for the steel companies to try to raise the price of steel in 1961? Was there justice in the demands of the employees of the New York newspapers in 1963? The pronouncements of religion do not answer these questions, or rather they answer them whichever way one wants them to be answered. The substance of the answers derives not from abstract pronouncements, but from concrete interests. They fill the gap between abstract statements and particular cases.

All of us look at the world and judge it from the vantage point of our interests. We judge and act as though we were at the center of the universe, as though what we see everybody must see, and as though what we want is legitimate in the eyes of justice. Turning Kant's categorical imperative upside down, we take it for granted that the standards of judgment and action, produced by the peculiarities of our perspective, can serve as universal laws for all mankind. The great philosophers have pointed to man's capacity for self-deception, and modern psychology has systematically explored its unexpected all-persuasiveness.

This propensity for self-deception is mitigated by man's capacity for transcending himself, for looking at himself as he might look to others. However feeble and ephemeral it may be, this capacity is grounded in man's rational nature which enables him to understand himself and the world around him with a measure of objectivity. Yet where rational, objective knowledge is precluded from the outset, as it is with justice, the propensity for self-deception has free reign. As knowledge restrains self-deception, so ignorance strengthens it. Since man cannot help judging and acting in terms of justice and since he knows for sure what he wants but cannot know what justice requires, he invariably and dogmatically equates justice with his own point of view. Empirically we find then as many conceptions of justice as there are vantage points, and the absolute majesty of justice dissolves into the relativity of so many interests and points of view. “Why do you kill me?” asks Pascal. “But don't you live on the other side of the water? My friend, if you lived on this side I would be an assassin and it would be unjust to kill you thus; but since you live on the other side I am a hero, and that is just.”

Even third parties not directly involved in the conflict of interests—judges, arbitrators, innocent bystanders—cannot, try as they may, escape the relativity of justice. At worst, they will satisfy their interests vicariously by favoring the interests similar to their own. At best, they will bring their particular view of the world to bear on the case; yet the justice they do is justice only within the limits of that perspective.

It is the saving grace of ignorance and egotism that they are easily concealed. For if they were not, they would be a deadly affront to our need to be just. Thus with that biological wisdom which is a quality not only of our bodies but of our minds as well, the poison of ignorance and egotism creates illusion as its own antidote. In order to save ourselves we are not only able, but compelled to delude ourselves into believing that ignorance is knowledge and egotism, impartiality.

The predicament of poverty is a heavier burden because it is not so easily concealed. Here we think we know what justice requires, and we are resolved to act in accordance with it; but we do not have what it takes. We know what we ought to do, and we want to do it; but we cannot. That is the tragedy of trying to be just.

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In the economy of justice, demand exceeds supply. The freedom people claim from the government as their due cannot be granted without impairing the power government needs to maintain order. So many people have in justice a claim on our love, but there is not enough love in us to satisfy them all. How does one in justice reconcile the demands of one's work with the claims of one's family, the claims of one's family with those of one's friends, the claims of the individual members of one's family with each other? How does one do justice to oneself and to others at the same time? After satisfying the demands of self (even if they were not inflated as they generally are) what is left over is not enough to go around. However one may try, the accounts of justice never square: there is too much demanded and not enough to give.

Yet man cannot afford to let it go at that. He must see to it that justice is done, and he cannot admit that it cannot be done. Thus he calls to the aid of justice three remedies, which are expected either to compensate for the deficiencies of human nature or to transcend the problem of justice altogether. The remedies are equal distribution, power, and love.

The equal rationing of necessities of life which are in short supply appears to compensate both for ignorance and poverty. If we are not sure how much we owe and if we do not possess enough of what we know we owe, the best we seem able to do is give to each claimant an equal share of what we have. Yet what may appear to the giver to be the best he can do must still leave the recipient dissatisfied. Since justice requires giving everyone his due, everyone has the right to have his case considered on its individual merits and not on a footing of mechanical equality with all others. That claim, inherent in the concept of justice, is strengthened and exaggerated by the egotism of the claimants, all of whom are naturally convinced that they are superior in need or merit, and that they therefore deserve more than an equal share. King Solomon, proposing to cut the baby in half, shows up the fallacious and even self-defeating character of a remedy which could only be a true remedy if justice—in contrast to law—required nothing more than the mechanical distribution of equal shares.

King Solomon had one great asset which enabled him to do justice in the case of the two women, each claiming the baby as her own: he had the power of a king. Those who think they know what justice requires but have no way of seeing it done can either resign themselves to the injustice of this world, or they can find in that combination of conviction and impotence the motive force for the acquisition of the power to make justice prevail. Men seek to acquire such power through movements of reform, revolution, and war. The more certain men are in their knowledge of what justice requires, the more ruthless they are in the search for, and the use of, power. The end of justice, clearly seen, justifies the means of power necessary to achieve it.

Yet men want power not only as a means to the achievement of justice but also for its own sake. While the aspiration for justice seeks to use power for the ends of justice, it also eggs on the lust which seeks power for power's sake. And in that dialectic between justice and power, power gets the better of justice. For the work of justice is never done and always dubious; the work of power, however ephemeral it may be, is clearly seen and simply enjoyed. “Justice,” to quote Pascal again, “is subject to dispute; might is easily recognized and is not disputed. So we cannot give might to justice, because might has gainsaid justice and has declared that it is she herself who is just. And thus, being unable to make what is just strong, we have made what is strong just.”

It is, then, the predicament of trying to be just that we are too ignorant, too selfish, and too poor to do what justice demands of us. Yet there is a mode of being and action to which knowledge is irrelevant, in which selfishness is overcome and poverty at the very least takes on the appearance of wealth—and that is the mode of love. Love as the spontaneous surrender of two persons to each other transcends the calculus of justice. The lover does not ask what is his and the beloved's due; he gives and receives all that can be given, even at the risk of the sacrifice of self.

But is it justice to give and receive all that can be given rather than what one ought to give and receive? Love may be superior to justice in its denial of self, but it is not justice; for it is of the very essence of justice to require an objective standard of distribution or retribution which allows us to say: I have received what is my due, and I have given what is the other's due. Thus love evades the problem of justice by transcending it; it does not answer the question justice asks. Trying to compensate for Hamlet's debilitating doubt with Lear's indiscriminate love, we only exchange one defect for another.

Thus we are condemned by the nature of justice and our own to give and to receive either too little or too much, or at least to be ignorant of whether we have received and given too little or too much. In the eyes of man, the accounts of justice never square. Yet we must go on trying to square them—even though, like Sisyphus, we cannot succeed.

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