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Religion & Liberty: Volume 33, Number 3 & 4

Justice, and Only Justice: The Beauty of Impartiality and the Ugliness of Her Rivals

Today’s cries for justice come highly stylized. People don’t want “justice, and only justice,” the justice of Deuteronomy 16:20. No, they want justice plus. They want social justice, racial justice, or intergenerational justice. Justice by itself, unadorned with adjectives, seems boring by comparison to these glamorous cousins. But justice is good and should be pursued for its own sake and not for a predetermined ideological outcome or preferred social goal, the way adjectival forms of justice tend to do. In what follows I’ll argue that basic justice offers us practical tools we need to resolve seemingly intractable legal and political disagreements.

But first: What is justice? The standard definition is giving to each his due. To offer this definition is to invite criticism. To whom is what given, and on what grounds? And who does the giving? We should resist the temptation to determine the answers to these questions in advance, and we can understand the addition of a word to just or justice as an attempt to decide the outcome of our deliberations before they have commenced. Someone wanting to modify justice must make a case for why we can use the new phrase in a way that is somehow literal and sensible, rather than metaphorical or just untrue.

This essay proposes that we stick with justice, only justice. We start by considering the theoretical and practical appeal of impartiality; we then turn to the confusion surrounding its rivals, a cluster of alternatives we shall call equalizing justice; we offer reasons for the continued attractiveness of equalizing justice, in spite of our complaints; and we conclude with an exhortation to speak and to act outside the constraints of justice-only language.

 

The Theoretical and Practical Appeal of Impartial Injustice

Giving someone his due requires a sober-minded assessment of a situation. Impartiality is essential. It asks us to ignore some of what we see in order to focus on the salient features of a situation. We can fail to be impartial by insisting on irrelevance, or we can fail to be impartial by ignoring the important. Impartiality delivers two criteria for justice. First, justice must ignore what should be ignored; second, justice should focus on what is relevant. As we shall see, socioeconomic status can regularly be ignored, but who did what to whom should always be considered.

Impartiality may seem comparatively weak, inadequate for the task of helping us live together, but I argue that, on the contrary, impartiality offers strong theoretical and practical advantages.

First, the requirement to be impartial has theoretical appeal. In an age of increasing tribalism, impartiality turns our thoughts away from noticing mere differences to considering what counts instead. In an age of socioeconomic disparity, impartiality requires us to think about specific cases and not about our broader allegiances. In an age of political strife, we need political opponents to model impartial respect for the law.

Impartial justice has an ancient pedigree. Deuteronomy 16:19 commands judges not to pervert justice by showing partiality or accepting a bribe. The King James Version follows the Hebrew more closely than many modern translations: “Thou shalt not respect persons.” Not respecting persons may sound to modern ears like an exhortation to disrespect or to demean people, hence the change in newer translations, but not respecting persons serves as shorthand for disregarding features of cases that are extraneous to the question at hand. Judges should not twist the law against the poor (Exodus 23:6), but judges should not show a poor man favoritism either (Exodus 23:3). Judgment of wrongdoing should not rely on noticing, much less appealing to, someone’s socioeconomic status. True, one can imagine outlying cases in which being poor or rich supplies the motive or the means to commit a particular crime, but even here the motives or the means, and not the poverty or the wealth, should be the object of concern, if such appeals are to be legitimate.

This mental maneuvering may seem difficult, but the ability to reason this way should be a necessary product of any liberal arts education; indeed, the ability to judge impartially should be something school age children do in the classroom and on the playing field. Though we sometimes fail spectacularly at placing in mental parentheses the unnecessary features of the people involved, we successfully do so all the time. Our ability to judge impartially explains the widespread moral outrage when people fail to do so. We can ignore some features of people that do not relate directly to the cases at hand, and we should defend our practice of doing it. Judging justly requires ignoring some of what we see.

But justice also demands that we emphasize some of what we do see. Deuteronomy 16:19 also offers a strict command against bribery. Though bribery may make a judge insist on certain irrelevant features of a situation, bribery most likely causes the judge to ignore what’s important, as the verse makes clear: “a bribe blinds the eyes of the wise and subverts the cause of the righteous” (ESV). Illicit gifts to judges encourage them to ignore the very things they should be observing. They are blind to what they should see, and they refuse to listen to the words offered on behalf of the innocent. An airtight alibi or the physical impossibility of a certain person committing a particular crime? These things are ignored by the unjust judge who prefers private gain to the true administration of justice.

Again, this mental maneuvering may seem difficult, but good decisions require such discretionary judgments all the time. Any parent knows the temptation to ignore the crucial features of a situation from a desire for personal advantage, most especially the personal advantage of rest and quiet after a long day. But justice requires attending to the right features necessary for judgment. If junior does the chores to receive the promised reward, but the promised reward is inconvenient to the parent, then ignoring the child’s legitimate claim doesn’t simply cause hurt feelings. Most crucially, it’s unjust. The desire for private gain blinds the eyes of the parent. Sometimes parents try to outmaneuver the requirements of justice by appealing to a forced interpretation of the promise to junior that removes any parental obligation to him. But impartiality speaks against changing the ground rules for the reward after the chores have been done. Doing so subverts the cause, or twists the words, of the child, which is precisely what Deuteronomy 16:19 forbids.

 

Impartiality in Practice

That’s the theory. Impartiality also has practical appeal. To see how, let’s consider two examples.

Impartiality requires that we ignore irrelevant differences but also that we focus intently on important facts. So, in each instance, we can ask two questions: First, what should we ignore? Second, what should we remember? Let’s ask these two questions about two hotly contested topics, immigration and policing.

First, immigration. Impartiality requires blindness to irrelevancies and focus on important details. If a country freely decides to let people immigrate, what is due to any given applicant? Impartiality answers this question by asking two follow-up questions. First, what should we ignore? An immigrant’s origin, either nationally or ethnically, should not matter. Neither should the immigrant’s gender or age. We should ignore religious differences, too, and political preferences, so long as these beliefs are consistent with our system of government. Second, what should we not forget? Not everyone who wants to immigrate supports that government’s way of life. Terrorist groups will gladly exploit weaknesses in national borders. Such thinking is neither xenophobic nor apocalyptic but a sober-minded assessment of the world we inhabit. We need not ignore competing skills between immigrants either. Someone may be the world’s best computer programmer or a Nobel laureate, or a talented plumber or skilled electrician, and so be ready to contribute immediately to the national life. In all, we should recognize the intricacies of this debate. Although pithy slogans promote political causes, they rarely solve genuine problems of justice—if they ever solve them at all.

Now let’s look at policing. Consider just how much impartiality can bring to this national concern. Again, let’s apply our two questions for impartiality to this complex case. First, what should we ignore? When determining whether or not a particular police action is justified, we should ignore ethnic and physical differences to whatever degree they do not pertain to the case. Second, what should we remember? We should not forget the dangers of policing or how a routine traffic stop can turn into a lethal situation. We should not forget the real presence of racism in our country, nor should we forget the lawlessness that makes policing vital to thriving communities.

Take a concrete case of bad policing: Ferguson, Missouri. From the perspective of impartial justice, one truly damning feature of the Department of Justice investigation into the police department was the focus on policing for city revenue at the expense of public good.1 The police officers are paid by the city, so emphasizing the need for policing with a view to revenue creates a serious financial incentive to blanket the city with tickets. The people need to pay at least some of those tickets so the city can overcome its projected revenue shortfall; without aggressive ticketing, the city could have failed to pay its police officers—hardly a desirable outcome from the perspective of the people doing the policing. The need for impartiality can describe the potential for injustice here: Just as professors do not receive a salary based on the grades they give, police should not be pressured to fine citizens in the hopes of receiving their salaries.

So impartiality has practical appeal, but two features of impartiality make it potentially unpalatable. First, impartiality requires knowledge of particulars, something many of us have neither the time nor the inclination to acquire. But this requirement should not be seen as a weakness, however annoying or inconvenient it may be. We seek the truth in justice, and we should be willing to work for it.

Second, people may prefer choosing an approach to justice precisely because it guarantees our preferred outcome, but we cannot know in advance what impartiality requires. Far from being a defect, this inability to game the system is a benefit of impartial justice. We want our deliberations about justice to get us to the truth, even if the truth makes us uncomfortable—and even when we realize that our preferred outcome is an unjust one.

So even though impartially assessing what is due to someone is both difficult and unlikely to guarantee a preferred outcome, we should do the hard work and take the risk to pursue justice, only justice.

 

The Tortured Confusion of Equalizing Justice

Skeptics of impartial justice want to turn our gaze away from impartiality to focus on equality. They may even say that impartiality, far from being distinct from equality, is just equality applied in a different way. Equality for them is the inevitable way we understand questions of justice. But this argument ignores equalizing justice’s arbitrary ideological commitments that make justice more confusing and rob it of its ability to give clear direction.

In what follows, we’ll explore the conflicts and troubles in the equalizing camp with a view to showing how their appeals differ from impartiality in significant ways. We’ll also consider how departures from impartial justice give us less confidence in our judgments, diminishing claims about equalizing justice’s practical value. Impartial justice asks us to be attentive to the details of a situation and not to a broader trend or philosophical agenda, as is the case with equalizing justice, but equalizing justice asks us to consider or to ignore new things without telling us how we should respond to this information. To see why, we’ll consider three rivals to impartiality: justice as fairness, luck egalitarianism, and socialism.

Justice as fairness asks us to overcome arbitrariness. Its most prominent advocate, John Rawls, asks us to consider whether people have equal life prospects, that is, whether or not people with the same talents and ambition have the same likelihood for success.2

Luck egalitarianism—a position articulated by Ronald Dworkin, among others—asks us to fight brute luck on behalf of those who face real challenges through no fault of their own.3 Luck egalitarians think justice as fairness does not do enough to help level the playing field for those who have natural disabilities or impairments.

Socialism asks us to fight inequality. Socialism—defended in recent years by G.A. Cohen—criticizes luck egalitarianism for failure of nerve; luck egalitarians are heading in the right direction by wanting to compensate for bad luck, but they fail to recognize the artificial divide between our choices and our circumstances. We make bad choices, but sometimes we make those bad choices because of who we have become through no fault of our own.

To act against arbitrariness, justice as fairness asks us to focus on people’s private affairs, including their childhoods. To act against brute luck, luck egalitarians want us to delve into people’s private affairs, including their disabilities. To act against inequality, socialists want us to peer into people’s lives, even their tastes and sensibilities. In contrast to impartiality’s focus on not being a respecter of persons, other theories of justice demand an investigation into the private lives of other people. And rather than achieving greater clarity, we get more confusion when we attempt to weigh on the scales of justice things that have nothing to do with the particular circumstances.

To see why, let’s return to immigration and policing. Opposition to any restrictions on immigration becomes problematic under impartiality’s rivals. Life prospects, a level playing field, and equality all speak for open borders, without articulating any limiting rule. Being born on one side of the Rio Grande rather than the other seems arbitrary but determinative of prospects for success, contra justice as fairness. Having requirements for entry does an injustice against those who fail to meet those requirements through no fault of their own, contra luck egalitarianism. And if we are a family as a nation, per socialism, then surely we are a global family, too. My point here is not that we should restrict immigration; I want to emphasize, instead, that departures from impartiality generate confusion and not clarity. Rivals to impartial justice do not give the clear advice that impartial justice offers.

Developing a coherent position on policing faces similar troubles. Having negative interactions with the police minimizes one’s life prospects, suggesting the need for less policing, but living in a dangerous neighborhood minimizes one’s life prospects, too, arguing for more. So justice as fairness offers no guidance here. People may suffer many things from brute luck—some mental illnesses, perhaps—but that does not give them license to harm others with the bad choices they make. Luck egalitarianism has nothing unique to offer here. Neither does socialism. Even if we are a family, people fight within families. So socialism may not be able to articulate the success criteria for policing, much less evaluate the justice or injustice of specific police policies. Again, the point isn’t to question policing—we should have police—but to question whether or not impartiality’s rivals actually offer action-guiding directives. Other theories of justice either quietly imitate impartiality, dressed up in new verbiage, or they advance zany or faddish approaches to policing that will do more harm than good.

 

Why Equalizing Justice Is Still Attractive

If appealing to impartiality seems desirable and indeed preferable to appeals to equality—given the latter’s confusion—why do people still want to add ideology to impartiality in their appeals for justice?

I have three theories about the attractiveness of contemporary equalizing justice. I list them in order of declining sympathy; that is, I offer the most morally attractive reason to appeal to equalizing justice at the start, and I end with the most nefarious reason to do so.

First, people genuinely desire better prospects but may lack the wherewithal to articulate what they want. Speaking about “social justice” for kids in schools may really be a claim about justice, and only justice. If schools claim to be teaching children how to read but fail to do so, we don’t have a failure of some modified form of justice. We have an instance of fraud—of injustice, strictly speaking. But an appeal to “social justice” in this case actually blurs the issue. We have here a case of injustice, plain and simple. Alternatively, the situation may not be about justice, and only justice. For example, if one school has more resources than another school because invested parents can donate more to one school than to another, we don’t have a case of injustice but of parental love matched with resources. Someone can make the case that richer parents should pay more in taxes to benefit the children of poor parents, but this public policy argument needs to offer reasons for the policy and not just a slogan about “social justice.” We should reflect more as a society about how to help people articulate their concerns, whether they follow from justice or not.

Second, equalizing justice is attractive because it solves a problem about the awkwardness of accusations. Asking for justice without modification requires an account of the situation, a naming of the harm that was done as well as the wrongdoer. But if you lack opportunities you think you deserve, locating the harm that is done and the wrongdoer or wrongdoers can be a difficult task. It may also be discomfiting. However, if you cry, “I want social justice,” people may listen to your complaint without requiring the details of an accusation, namely, a description of who did what. So we can place this second reason under the heading of a failure of nerve. Precisely because cries for “social justice” allow us to sidestep questions of responsibility, those wanting to accuse someone without confronting the social costs of doing so find such calls genuinely appealing. Cries for particular changes under the social justice banner allow us to agitate for change without having to articulate our positions in a way that may embarrass us. Society should do better to encourage forthrightness about our collective concerns with a view to identifying actual wrongdoers.

Third, appeals to a modified form of justice can appeal to wrongdoers themselves because such appeals offer the possibility of a fossilization or furtherance of injustice. If people harmed by wrongdoers do not have the nerve to accuse them, but nevertheless identify the wrongdoing, then even the wrongdoers may revel in the language of social justice as a shield with which to cover themselves. It’s a recognition of the wrong, but, happily from their point of view, the wrong does not seem to have a culprit. For example, advocates for so-called reproductive justice may want minors to procure abortion without parental consent because they fear pregnant girls may face shame or even physical violence from family members. But sexual predators also have an interest in guaranteeing this access to abortion. Abortion offers perpetrators of crimes against children an opportunity to end pregnancies that result from their wicked activity. Doing so without drawing attention to the girl’s parents—and the law—helps and does not hurt those who sexually exploit girls. So the language of social justice can permit wrongdoers to sound like champions of public virtue when, put simply, they are not.

 

Conclusion: The Importance of Moral Terms Other than Justice

The task of justice requires humility, not slogans, and a sober-minded assessment of facts, not glib remarks. Sadly, we have become so overrun with debates about justice that we have forgotten the single word justice does not exhaust our commitments and responsibilities to each other.

So, by way of conclusion, let’s consider other words and moral language we can and should use to describe our life together.

I’ll start with a hypothetical example. If I see someone stranded on the side of a lightly trafficked road to nowhere, late at night, in the middle of a historic snowstorm, does justice require that I stop? The language of justice seems surprisingly inadequate in my deliberations. In fact, we may think less of me if I did rigorous calculations about what justice requires. Nor does injustice quite capture our sensibilities if I don’t help the stranded traveler. I doubt injustice would spring to your lips. What a jerk, perhaps. Or what a wicked and horrible thing to do—he left him to die.

Appeals to language beyond justice may strike some as troubling. Immanuel Kant, for example, thought that receiving charity dehumanizes or debases the recipient. But here Kant both misunderstands the benefits of being a focus of someone else’s concern and underestimates the possibilities for grinding humiliation by the bureaucratic machinery of modern nation-states. I, for example, would much prefer to be the recipient of a stranger’s kindness than passionless state-sponsored assistance.

The world attempts to make every transaction happen according to the language of justice. But we know that, especially in times of great need, while we do not want less than justice, we certainly need more than justice. When a man seeking to justify himself asked Jesus, “Who is my neighbor?,” Jesus offers the Parable of the Good Samaritan. Three men walk by someone injured by robbers, but only the last man has mercy on him. That third man, a Samaritan, proved to be the injured man’s neighbor. Appeals to justice actually seem out of place in the face of the man’s desperate need. He needs someone to love him.

So love your neighbor. Be kind to him. You must always give him justice, but sometimes you have the privilege of offering him so much more.

 

NOTES

1 United States Department of Justice Civil Rights Division, Investigation of the Ferguson Department, March 4, 2015: https://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/ferguson_police_department_report.pdf. See especially section III, Ferguson Law Enforcement Efforts Are Focused on Generating Revenue.

2 John Rawls, A Theory of Justice, rev. ed. (Cambridge: Harvard University Press, 1999).

3 Ronald Dworkin, “What is Equality? Part 2: Equality of Resources.” Philosophy & Public Affairs 10:4 (1981): 283–345.

 

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James Bruce is an associate professor of philosophy at John Brown University in Siloam Springs, Arkansas. He is author, most recently, of Rights in the Law. Follow him on Twitter @JamesEBruce.