Religion & Liberty Online

Getting Justice Right Is Harder than We Think

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There are several forms of justice just as there are several realms in which justice operates. Confusing them can lead to injustice.

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The question of justice is fundamental to human nature and all human cultures. Little children have an immediate sense of fair and unfair, just and unjust. The theme of justice permeates myth and philosophy. Plato’s Republic and Gorgias are reflections on justice and the right ordering of the soul and society. So is Aristotle’s Politics. The Hebrew Bible, the Tao Te Ching, the Analects of Confucius, the writings of Buddhism, and the Stoics all contain reflections on justice. C.S. Lewis notes in his appendix to The Abolition of Man that in every land and every culture there is a “Tao,” a way of being in the world that affirms what is good and condemns what is bad. Despite the universal hungering for justice, injustice often seems to be the actual way of man.

The quest for justice is complex. Even our efforts to promote justice can lead to injustice. Injustice makes us angry and rouses the passions. Yet justice is a virtue that requires clear thinking, prudence (seeing the world as it is), and temperance (moderation). This means that in the face of injustice we have to discipline our passions so they do not become irrational and create even more injustice. As philosophers like Leo Strauss and Stanley Rosen have explained, Plato’s Republic is Socrates’ attempt not only to refute the tyrannical view that justice is the rule of the strong but also to moderate Glaucon’s passionate desire for justice.

False Prudence of the Sage

St. Thomas Aquinas wrote that “injustice can occur in two ways: by the violent act of the man who possesses power and through the false prudence of the sage.”

Unjust acts of violent men are quite clear to us, but we can miss the “false prudence of the sage.” I argue in my forthcoming book, Excluded: How Global Humanitarianism and the Poverty Industry Exclude the Poor from Prosperity and Justice that one of the great sources of injustice for the poor is precisely the “false prudence” of policymakers, technocrats, and humanitarians who, filled with good intentions, think they can help by socially engineering people out of poverty. They are like Don Quixote who thinks he “rescues” the farm boy from beatings only to make his situation even worse.

Injustice also comes from the failure to distinguish between what are called commutative and distributive justice. We can create injustice if we apply the wrong kind of justice at the wrong time—e.g., commutative when it should be distributive or vice versa.

Commutative Justice

Commutative justice is justice of exchange. It is the justice that takes place between individuals or private institutions and groups such as businesses. It relates to contracts, obligations, paying debts, and so on. I have heard people talk about commutative justice as less important or secondary to distributive justice, but as The Catechism of the Catholic Church explains:

Commutative justice obliges strictly; it requires safeguarding property rights, paying debts, and fulfilling obligations freely contracted. Without commutative justice, no other form of justice is possible. (CCC 2411, emphasis added)

Commutative justice is what guides buying and selling and many other trading relationships. For example: I offer to buy your watch for $200 and you agree to the offer. I pay you the $200 and you give me the watch. We have engaged in commutative justice. It’s important to note that agreement or consent is necessary but not sufficient. Some things cannot or should not be exchanged. Just because there is a market for something doesn’t mean it is just. There are markets for slaves, pornography, and human organs, but all these are unjust and should be prohibited. Even in areas where exchange would be licit, consent alone is not always sufficient. For example, if someone holds a gun to your head to “encourage” you to agree to the price they offer, this is not commutative justice. Or if you are starving and I take advantage of your desperate situation and pay you $20 dollars for your diamond engagement ring, that too would be a violation of commutative justice.

The Profit Motive

Because commutative justice addresses exchange, it does not imply that there can be no profit. Profit has a legitimate role in commutative justice. Prices change when demand is high and supply is low. This is most clearly seen in what many economists, philosophers, and theologians, including St. Augustine, have called the “diamond-water paradox.” Water is necessary for life and in high demand, but generally easy to acquire. Thus, in normal conditions, the price is low. Diamonds, on the other hand, are useless for life but highly valued for their beauty, scarcity, low supply, and difficulty of extraction. In normal conditions, the price is very high. Yet if we found ourselves in a desert, the value—and thus the price of water—may even be higher than a diamond. Commutative justice does not require an equal exchange with no profit, only that the price must not be unjust nor the arrangement coerced. The issues of just price and profit are topics for another essay, but in sum, tradition has generally defined just price as being determined by three things: utility, difficulty of production, and common estimation—i.e., market price.

Distributive Justice
The second type of justice is called distributive. Distributive justice regulates what a community owes to its members and “distributes common goods proportionately” (St. Thomas, Summa Theologica). We can see distributive justice in many situations: the family, the church, and the state. A monastery is a good example of distributive justice. When a man becomes a monk, he makes an act of voluntary poverty and gives up all his rights to private ownership. The land, the abbey, and its contents are still private property, however, yet the abbot has distributive justice responsibility to provide for all the monks according to their needs. An abbot has broad authority: He can discipline a monk, deny food, and require an extra fast, but he cannot do whatever he wants and take everything to himself. He has a debt of distributive justice to his monks much like a father and mother have to their children.

The state also has distributive justice responsibilities: welfare assistance, honors/rewards, and punishments. The state can levy taxes and make distributions to the poor or use those same taxes to build projects for the common good (or do both). It can also help those who have suffered from natural disaster. As Joseph Pieper explains in The Four Cardinal Virtues, distributive justice need not be equal. If a tornado goes through a town and destroys Joe’s house but only slightly damages Steve’s, Joe will receive a lot more than Steve. There are times when, according to distributive justice, the abbot or the father or the government can provide assistance “to each according to their need.”

The Wrong Kind of Justice Can Lead to Injustice

When we fail to make distinctions among the different types of justice, we can create harm and even injustice. Let’s take some simple examples. One misapplication of justice is when we apply commutative justice to the family—that is, when we tend to see all relationships through the lens of individual market exchange. As Fr. Marcel Guarnizo explains in our podcast discussion, the Nobel Prize economist Gary Becker argues that some children are Cadillacs and some are Chevrolets. Parents, Becker argues, should invest more in the Cadillac children. Becker writes:

As consumer durables, children are assumed to provide “utility.” The utility from children is compared with that from other goods via a utility function or a set of curves.

And further,

A family must determine not only how many children it has but also the amount spent on them.… I will call more expensive children “higher quality” children, just as Cadillacs are called higher quality cars than Chevrolets. To avoid any misunderstanding, let me hasten to add that “higher quality” does not mean morally better. If more is voluntarily spent on one child than on another, it is because the parents obtain additional utility from the additional expenditure and it is this additional utility which we call higher “quality.”

Becker notes he is not making a moral claim. He is analyzing fertility rates in the developed world, a complex subject. Nevertheless, the point here is that the idea of seeing children primarily in economic terms is an error. (See “market fundamentalism” below.) It views children in an instrumentalist manner (as a tool) and the family as a place for commutative justice when it is not. Not to mention that early labelling of some children as a Chevrolet could also be a big mistake even on utilitarian grounds, because you might miss the Rolls Royce potential of a late bloomer. But that is another discussion.

The proper type of justice for the family is distributive. For example, I have a nine-year-old daughter who can find anything. If I lose my keys, shoes, phone, tennis racket, whatever it is, she can find it. So every night my wife and I give her dinner. One day she didn’t find the book I needed for work, so that evening when the family sat down for dinner, her plate was empty. She looked at me with sad eyes, but I told her that she didn’t find my book, so I didn’t owe her dinner. After all, “If you don’t work, you don’t eat.” We immediately can see there is something wrong here. It is unjust because the relationship between parents and children is not one of commutative justice. As the father, I have distributive justice responsibilities to my daughter whether she finds my book or not. I receive money from my work (commutative) and I use that money to clothe, feed, educate, and help my children flourish. This is not simply my being a good father. It is a requirement of justice. Not to do so would be unjust. This doesn’t mean I can never deprive my children of a snack or a meal as a punishment for hitting a sibling or not finishing their chores. Nor does it mean I cannot hire my children to complete some chore and pay them for it. But that is not the normal relationship in a family.

It is important to note that this does not mean the family is “socialist.” That is a category error. Socialism is an all-encompassing ideology imposed upon society. It is not a simple description synonymous with “sharing stuff.” Second, socialism rejects private property, but the family owns private property and there is private property within the family. Children can own toys, books, and bicycles that do not belong to the parents, and that they can take when they leave home. Distributive justice does not reject private ownership the way socialism does. Third and most important, socialists from Robert Owen, Karl Marx, and Friedrich Engels to Antonio Gramsci, the Fabians, and the Frankfurt School not only reject private property and religion; they also see the family itself and “this present form of marriage” between a man and woman as obstacles to socialist reform. Sharing among the family is not socialist. It is practicing distributive justice.

Errors with Distributive Justice

We also can create harm or injustice when we apply distributive to a relationship that requires commutative justice. This can be a tendency of religious leaders who generally work within distributive relationships. A prime example of this is how we often help the poor. There are of course some situations when people require distributive justice from the state, the church, charitable organizations, and private individuals. These can be long term, for example when a person has a serious disability, or short term, when there has been a natural disaster or a person needs help getting back on their feet after losing a job. But too often we think of distributive justice as the primary means of helping those in need, when often their biggest problem is that they don’t have access to commutative justice.

We often hear calls to be more generous to help poor people in Africa or Latin America. And there are indeed times when they need immediate help. But for a majority of people in the developing world, the fundamental problem is not that they lack material goods or money but rather that they are excluded from institutions of justice that would enable them to create prosperity in their own families and communities. As we explain in the documentary Poverty Inc., they lack access to things like clear title to land and the ability to get their court cases heard, register their business, and participate in the formal economy. The primary need for most poor people throughout the world is legal justice and the rule of law so they can participate in commutative justice. When we use distributive justice in the wrong situation, we can perpetuate unjust systems that keep them poor and dependent.

Market Fundamentalism?

In the past several years, a number of conservative thinkers have become critical of what they see as a free-market ideology and argued for more state involvement in setting industrial policies that have a broader view of the common good. These are important debates, and I sympathize with many of the critiques if not necessarily the solutions. But one thing I have noticed is the charge that market-based thinking is a product of “market fundamentalism.” The distinctions between commutative and distributive justice can help us think more clearly about this. The best ways to define “market fundamentalism,” if we must use the phrase, is:

  1. Assuming that all social and political problems can best be solved by the markets. This would reduce all social relations to market relations and ignore the proper roles for the state, family, and civil society. Markets and commerce are essential, but they cannot solve many social problems. Nor can the state.
  2. Applying commutative justice to every (or at least most) social and political problems, as we saw with the family example above.

Note that it is not market fundamentalism to advocate for a free and competitive economic system with private property, rule of law, freedom of association, and free exchange. Nor is it market fundamentalism to argue that there is a legitimate place for commutative justice in society. Rather, to reject legitimate commutative justice because one doesn’t want to be a “market fundamentalist” would be to promote injustice and perhaps cultural or political fundamentalism.

Summing Up

Getting justice right is difficult. It requires prudence, moderation, clear thinking, and humility. It also requires us to make clear distinctions. A proper view of legal, distributive, and commutative justice will not solve all our problems, but it can help us care for the poor, preserve the rights of the family, understand the role of the market, and get a proper perspective on the role of the state.

Michael Matheson Miller

Michael Matheson Miller is a Senior Research Fellow at the Acton Institute