Lincoln-Douglas Debate
What is a Just Social Order?
by David Beers
Originally written for the LD topic Resolved:
A Just Social Order ought to place the principle of equality
above that of liberty.
"What
is your definition of justice?" was the first question from
the cross-examiner after the affirmative debater finished
her constructive speech. I could mouth in unison the next
words to come from the affirmative's mouth, as could probably
most second-year Lincoln Douglas debaters: "Justice means
giving each his due." Aristotle's famous definition seems
to be everyone's favorite formulation for the most popular
value premise in LD debate. For the January/February topic,
in which a "just social order" is given as an agreed objective,
it stands to reason that we're going to be talking even more
than usual about the meaning of justice. That means the old
definition of "giving each man his due" is sure to get quite
a workout. It's high time we take a critical look and consider
what justice really does mean.
Empty
definitions
Aristotle's
definition, while hard to reject as wrong, suffers in at least
two respects. First, it can always be followed by the question,
"what is each man due?" Ten philosophers could all agree wholeheartedly
with this definition of justice, while all holding utterly
incompatible concepts of justice. One might say that each
man is due respect for his rights to life, liberty, and property.
Yet another might declare that due is determined by the maxim
"from each according to his ability, to each according to
his need," which would require redistributing or abolishing
property. Another might say that each person is due the treatment
society traditionally accords people of their caste, race,
or gender&emdash;possibly quite unequal. And yet another might
say that unless minorities are equally represented in desirable
positions within society, they cannot be receiving their just
due. A definition of justice that doesn't exclude any possible
conception of what people are due is of very little practical
value.
Due and
Merit
The second
respect in which this definition suffers is that the word
"due" connotes a concept that is based on merit. As we shall
see in a moment, the intuitive connection between justice
and merit is in fact questionable, at best. Where the determination
of merit demands a case by case appraisal based on a substantial
amount of specific knowledge about the individual in question,
justice is blind to all but a very few relevant facts. Merit
may include past behavior, social status, wealth, noble intentions,
or any personal trait that the adjudicator subjectively feels
is meritorious. Justice requires adherence to the same rules
of conduct by everyone regardless of the personal particulars.
The expression that the law "is not a respecter of persons"
stems directly from this inner conviction about the meaning
of justice.
To give
Aristotle his due, trying to define justice is a little like
trying to define true love. We tend to know it when we see
it far better than we know how to articulate this understanding.
Thus, the purpose of this article is not to undertake the
impossible task of defining what justice is; only to identify
a few key features that will help the debater argue against
false conceptions of justice&emdash;which are abundant! Specifically
I aim to differentiate justice from merit-based concepts such
as "fairness" and "equitability", while still basing it on
sensibilities that the average Lincoln Douglas debate judge
will find persuasive. The concept of justice I will be exploring
is a very traditional one, one that we could describe as "classical
liberal." "Classical" because it is rooted in an intellectual
tradition that is many centuries old, "liberal" because this
tradition has largely been concerned with the value of liberty
and the protection of individual rights. Not surprisingly,
then, debaters may find more they can use on the negative
in this article than on the affirmative. It is no exaggeration
to say that the development of this classical conception of
justice is what made modern free societies possible and lifted
humanity above the oppressive collectivism that characterized
most of human history (and still characterizes many societies
today).
Only actions
can be just or unjust
The first
feature of justice we need to be clear about is that it is
an attribute of actions. It isn't an attribute of the way
resources are distributed or of what station people hold in
society, except when these outcomes are directly arranged
by purposeful actions. To see that this is the case, consider:
if a hurricane strikes a city, destroying the property of
many homeowners but increasing the wealth of people working
in the construction industry, do we ask whether this event
is just or unjust? No, not any more than we talk about the
justice of rolling a seven on a pair of dice. We may feel
that the construction workers' profits were an unmerited windfall,
certainly that the city as a whole suffered a great loss,
but to call the hurricane or its outcome "unjust" simply makes
no sense. No one can be held responsible, so questions of
justice don't apply. Applying "justice" as an attribute of
the way resources or opportunities are distributed when no
particular actions by anyone are responsible for that distribution
is a logical error that philosophers call a "category mistake."
What if
the hurricane had been the result of a highly classified military
experiment in weather control or an overly enthusiastic troupe
of previously parched Native American dancers? Only then might
the idea of justice come into play, since now we can hold
someone responsible for bringing about the devastation. For
a circumstance to be either just or unjust it must be under
human control.
The Fallacy
of Distributive Justice
This runs
counter to some popular modern theories of justice which attempt
to use the term to describe the degree of equity in the distribution
of wealth or opportunity in society. Such theories stem from
a common misunderstanding, however. The underlying assumption
is that the social order is under someone's control or that
its particular form is the responsibility of someone in society.
In some societies this might be the case: a tribal society
or a centrally planned communist system would have an authority
who would make decisions about the station each individual
would have in the society. In such a society distributing
benefits is a deliberate decision by someone, so it is something
that could be done justly or unjustly. But in modern, relatively
free societies no one "distributes" wealth or opportunity
at all. The complex order of a modern society is spontaneously
generated by the decentralized interactions of its members,
not deliberately arranged by some chieftain or central planner.
It is tempting to say that one man in such a society is poor
because another is rich, but generally speaking this is not
the case. The status each man holds in an open society, to
the extent it really is free and open, is the outcome of decisions
he makes, the impersonal forces of the market (which determine
the wages, profits, or losses people make from various economic
activities) and a good measure of luck. The social order of
the free market is, in David Hume's words, the "result of
human actions, but not of human design," so while each person's
actions have an effect, no one is responsible for the overall
pattern that emerges. This is why attributing "justice" or
"injustice" to this pattern is a category mistake.
The Fallacy
of "Social" Justice
The term
"social justice," another name for distributive justice, is
an attempt to expand the concept of justice to make it an
attribute of "society's" actions toward its members. But "society"
is not an acting agent&emdash;only an abstraction we use to
describe the complex web of interactions of individuals. An
individual may be due a certain kind of treatment from other
individuals, but he cannot be due anything from society since
society has no moral agency. Thus the social order cannot
commit injustices, only individuals can. Treating society
as an entity that makes choices and performs actions toward
people is an example of the fallacy of misplaced concreteness,
since it treats an abstract concept as if it were a concrete
entity of itself.
Inequality
is not necessarily injustice
All of
this means that the term "just social order" must be understood
as an order in which the rules prevent unjust actions by individuals,
not where the rules dictate the overall pattern of resources
or opportunities that emerges when people interact. Ironically,
while many LD debaters cite the philosopher John Rawls' theory
of justice as a defense of distributive justice, Rawl's himself
acknowledges that the endeavor to identify specific distributions
of desired things as just must be "abandoned as mistaken in
principle, and it is, in any case, not capable of a definitive
answer." Rawls rightly points out that "the principles of
justice define the crucial constraints which institutions
and joint activities must satisfy if persons engaging in them
are to have no complaints against them. If these constraints
are satisfied, the resulting distribution, whatever it is,
may be accepted as just (or at least not unjust)." In other
words, a social order in which each individual and institution
is constrained from committing unjust acts is a just social
order, even if substantial inequalities in wealth and opportunity
result.
It is
fortunate that justice is an attribute of actions, not of
distributions, since there is very little agreement about
what overall pattern for society is "just", but a good deal
of agreement about what constitutes just and unjust actions.
A high school student, a businessman, a scientist, and an
environmental activist might have very little they could agree
upon as an appropriate pattern of resources for society, but
each would have substantial agreement about what are just
and unjust ways for individuals to go about obtaining resources
for their purposes. Stealing, murdering, defrauding, or violating
contracts are universally recognized as unjust means for pursuing
almost any end.
Order
is the goal
Justice
is instrumental. It is a means for maintaining order in society.
The purpose of governing the social order by consistent rules
of just conduct is to prevent peoples' actions from colliding.
The fabulously complex and beneficial order that we depend
on for our very survival doesn't happen by pure accident.
People pursuing their own interests and projects can as easily
enter into chaotic conflict as orderly cooperation. It all
depends on the set of rules by which they govern themselves.
The poet Robert Frost wisely wrote that "good fences make
good neighbors." If the rules in society create clear guidelines
about what kind of conduct we can expect from others and secure
spheres within which each may act uninterfered, we find cooperation
with others a relatively simple matter, even when our individual
interests vary widely. The common law rules governing property
and contract, for example, have allowed people to trade, invest,
lend, and produce cooperatively and confidently, rather than
resorting to plunder, threat, or violence to get what they
want. If the rules allow (or worse, sanction) arbitrary interference,
this generates uncertainty and destroys the "good fences"
that make cooperation and peace possible. When coercion and
plunder are accepted means, either directly or using government
authority as a tool, production and voluntary exchange become
less practical and the spontaneous social order unravels.
Justice
and liberty go hand in hand
This means
that just rules of conduct will be ones that preserve liberty
first, and equality only insofar as the actions required to
increase equality do not abridge peoples' property rights
or freedom to engage in voluntary exchanges. The rights to
freely dispose of ones own property and enter into contracts
without outside interference are not arbitrary. They have
evolved as crucial social norms for adjudicating disputes
between people, which is the primary purpose of the principle
of justice. The rules protecting property and contract are
general in application and leave little discretion for a judge
to favor one person over. This ensures that people are governed
by the rule of law, not the arbitrary rule of men, which is
the essence of a just social order.
Equality
admits to no clear principle
Attempting
to arrange just outcomes according to the principle of material
equality, by contrast, transforms the law from being a set
of principles for avoiding and resolving disputes into a tool
for distributing desirable things. Equality, unlike liberty,
admits to no clear or general principle for discovering when
it has been achieved. At what point can we say that two people
have equal access to health care&emdash;when the same amount
of money is spent on treating them, or when they are equally
healthy after treatment? Does equality mean that men and women
are equally represented in political offices, or that everyone
has an equal right to vote for the candidate of their choice?
Are the children of atheist parents and fundamentalist Christian
parents receiving equal educations when they are both taught
that humans evolved from apes or when the former are taught
evolutionism and the latter creationism? Does someone in Nome,
Alaska have equal wealth with someone living in New York City
if their bank account balances are the same? (Doesn't wealth
have to do with the range of opportunities available, not
just dollars in hand? But how can different kinds of opportunities
be compared?) Beyond the fundamental equality of rights to
protection of person and property (which are the conditions
for liberty) there is no sense of equality that is clearly
definable in practice.
It's not
hard to see that being the hazy concept that it is, "equality"
can be invoked to justify the advancement of practically any
particular interest in society. Inviting, as it does, constant
comparison of one's own position with that of others, the
drive for equality of outcome often feeds that most corrosive
of human frailties, envy. Thus the principle of equality is
a poor foundation for a just social order at two levels, at
least. First, rather than drawing fixed, clearly articulated
lines dividing just from unjust conduct, they allow whoever
has the authority to judge what is "equal" to dole out justice
according to their own discretion. Secondly, man's natural
tendency to advance his own interests drives people to invoke
"equality" to advance all manner of particular ends in the
name of justice. Instead of a "good fence" for separating
acceptable from unacceptable means for achieving ends, justice
becomes nothing more than another tool in the competition
for scarce resources.
The neglected
factor: human ignorance
The order
that true justice preserves is not an order that forces people
into serving a single overriding end (like the order within
an army, which is designed for achieving the end of winning
battles). This is because no one knows which ends ought to
take priority in society. It is this ignorance that makes
the ordering of society according to general rules of just
conduct necessary in the first place. To see why this is the
case, think of the rules of just conduct as serving a function
like a traffic signal. Vehicles approach the signal from all
four directions, each driven by drivers with different purposes
that have different levels of urgency. The signal is timed
with the others on the intersecting streets so as to allow
for the most orderly flow of traffic in all directions. Have
you had the experience of being late for an important appointment
and standing at a red light while other people who "obviously"
were about far less important things drove on through the
green light? In a perfect world, the signals might be timed
to give green lights to those who had the most urgent business
while the others waited. But we know in the real world this
is impossible. There is no objective measure of urgency that
we could use to rank the drivers, so the best system is one
that ignores such considerations and aims instead at maximizing
traffic flow and minimizing accidents.
The rules
of just conduct have the same basic function. Having no objective
measure of the relative merit of all the ends people pursue
in society, the most just rules are ones that take no account
of ends and only concern themselves with the means by which
people pursue their ends. The rules are set to maximize social
cooperation (the dovetailing of people's diverse plans) and
minimize disputes: goals that benefit everyone without favoring
any particular ends.
Who knows
the worth of an individual?
Those
who call for greater equality to serve "social" justice implicitly
make judgments about the relative merit of different people
possessing resources. Those with less wealth have a more meritorious
claim on resources than those with more. But on what basis
could such comparisons possibly be made? Who is in a position
to determine what a person is worth or is entitled to determine
what he may achieve? And what are the consequences for the
social order of investing any individual or institution with
the authority to redistribute resources in a more "just" manner?
One thing is certain: a social order of this sort is not a
free society. In F. A. Hayek's words:
"A society
in which the position of the individuals was made to correspond
to human ideas of moral merit would...be the exact opposite
of a free society. It would be a society in which people were
rewarded for duty performed instead of for success, in which
every move of every individual was guided by what other people
thought he ought to do, and in which the individual was thus
relieved of the responsibility and the risk of decision."
Justice
requires the rule of law, equality the rule of men
The image
of Justicia seen in front of so many courthouses around the
world is a woman with a scale in one hand, a sword in the
other and a blindfold across her face. The symbol is significant,
since for justice to be justice it must be objectively enforce
the rules of conduct that have ensured balance and order in
society and must be blind to all irrelevant characteristics
of individuals. This means that the institutions which mete
out justice&emdash;our governments&emdash;must avoid discretionary
and discriminatory actions. The classical concept of a just
social order that was conceived many centuries ago is a society
that is governed by the rule of law, not of men. But as we
have seen, the attempt to construct a society on the basis
of the slippery notion of equality militates against this
just social order by requiring government to use its discretion
to distribute resources and opportunities according to merit.
The exercise of discretionary power is, by definition, destructive
of liberty, which is quite incompatible with any system designed
to control the overall distribution of good things in a society.
Hayek describes the end result of this abandonment of the
rule of law:
"This
conflict between the ideal of freedom and the desire to "correct"
the distribution of incomes so as to make it more "just" is
usually not clearly recognized. But those who pursue distributive
justice will in practice find themselves obstructed at every
move by the rule of law. They must, from the very nature of
their aim, favor discriminatory and discretionary action.
But, as they are usually not aware that their aim and the
rule of law are in principle incompatible, they begin by circumventing
or disregarding in individual cases a principle which they
often would wish to see preserved in general. But the ultimate
result of their efforts will necessarily be, not a modification
of the existing order, but its complete abandonment and its
replacement by an altogether different system&emdash;the command
economy."
Equal
rights consistent with justice
How is
a debater who has drawn the affirmative side to defend the
priority of equality over liberty for achieving a just social
order? One possibility is to define equality not in terms
of the resources or opportunities people possess, but in terms
of the fundamental rights they possess. The rights to life,
liberty and property that the Founders asserted to be held
equally by all men are utterly consistent with the classical
principle of justice. It should be noted that these rights,
far from giving government license to correct the distribution
of resources in society, prevent it from seizing property
or interfering with freedom of contract for such purposes.
It should also be noted that this concept of equality is really
just the flip side of the coin of liberty. As such, affirmatives
may have difficulty claiming that this principle of equality
must be held above the principle of liberty, only that they
must be held in equal esteem in a just social order.
In the
end it is probably far easier to say what justice isn't than
what it is. Hopefully this will help debaters of this topic
to sort out some of the prevalent fallacies and stay on top
of the round&emdash;at least on the negative! H
David
Beers is Debate Coach at the St. John's School in Houston,
Texas, and is a program officer at the Free Enterprise Institute.
He has a degreee in Economics
from George Mason University.
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