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Particular, Principled, Context-Specific Justice (2010) – Article by G. Stolyarov II

Particular, Principled, Context-Specific Justice (2010) – Article by G. Stolyarov II

The New Renaissance Hat
G. Stolyarov II
Originally Published April 11, 2010
as Part of Issue CCXLIV of The Rational Argumentator
Republished July 18, 2014
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Note from the Author: This essay was originally published as part of Issue CCXLIV of The Rational Argumentator on April 11, 2010, using the Yahoo! Voices publishing platform. Because of the imminent closure of Yahoo! Voices, the essay is now being made directly available on The Rational Argumentator. The arguments in it continue to be relevant to discussions regarding justice, natural law, and a merit-based society, and therefore it is fitting for this publication to provide these arguments a fresh presence.
~ G. Stolyarov II, July 18, 2014
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Here, I will briefly outline the fundamental features of a new approach to justice that departs radically from the egalitarian view typical of our era. A departure from egalitarianism may appear to some to be reactionary – with the alternative being a reversion to the older, class-based systems of justice, where different individuals were afforded different treatments on the basis of membership in rather arbitrarily defined groups. However, the approach of particular, principled, context-specific justice is in fact highly progressive in that it rejects the collectivism and suffering of innocents inherent in both class-based and egalitarian systems of justice. If we use an analogy to medical evolution, class-based justice could be compared to the pre-scientific treatments of bleeding and leeches; egalitarian justice could be compared to a mass-marketed pill that helps some people, but not in all ways, and also causes substantial adverse side effects in others; particular and context-specific justice is like an army of tiny nano-machines, repairing specific instances of bodily damage cell by cell without damaging healthy tissues. What nano-medicine promises to accomplish for the principle of health, particular and context-specific justice can accomplish in advancing the principle of merit.

The best way of encapsulating particular, principled, context-specific justice is to say that justice should not be blind. Indeed, justice should see as much as possible about the situation which is being judged and use all relevant information to arrive at a remedy specifically tailored to that situation. Any simplification of this principle – including the invocation of group- or class-based stereotypes, inflexible norms, and binding precedents – leads a departure from the just outcome.

It is a necessary component of justice that no innocent person should be harmed by its application – and that no guilty person should be harmed by it beyond the extent specifically warranted by his guilt. To hold otherwise is to embrace not justice, but pseudo-pragmatic trade-offs, where the suffering of some innocents is weighed against the perceived greater or lesser suffering of other innocents. To enforce such trade-offs is not within the legitimate power of any human being, nor is it necessitated by the natures of things or genuine practicality.

Unfortunately, “justice” as conceived by many of our contemporaries – egalitarian justice, or, phrased less generously, one-size-fits-all justice – necessitates the making of trade-offs that harm innocent people in virtually every case. Egalitarian justice is based on the premise that all persons must be treated in the same manner, irrespective of their individual qualities, context, and the consequences of a particular treatment. The uniform treatment is intended to produce the “greatest good for the greatest number” – but it often results in the lowering of the manner in which people are actually treated to a mediocre level, or even to the level of the lowest common denominator. Egalitarian justice typically imposes mandates or prohibitions deemed to improve the position of the “average person” or the majority of people; in reality, such impositions hamstring the above-average individuals while providing only slight, if any, benefits for the others. Indeed, many egalitarians, after the failure of their attempts to elevate the majority through one-size-fits-all measures, resort to insisting that everyone must “share the burden” equally – i.e., suffer by the same amount in situations where, before, no suffering was necessary.

Egalitarian justice is misguided, because it is premised on the idea that justice applies fundamentally to collectives of people, as opposed to individuals – who are the basic units where human perception, thinking, creation, and decision-making are concerned. Egalitarian justice seeks – at least in its best-intentioned variant – to bring about societal improvement by imposing the same rules and treatments upon all of society.

By contrast, reason and morality – natural law – require that every individual be treated in accordance with the merits or demerits of that individual’s own actions. Individuals who act rationally and morally, to the genuine benefit of themselves and others, should be rewarded, and individuals who act detrimentally – by harming others or themselves – should suffer the naturally ensuing adverse consequences of their actions. Individuals who harm only themselves are already punished sufficiently by the harm they inflict; there is no need for an external entity to disproportionately magnify that harm. However, individuals whose actions also adversely affect innocent others will not always be thwarted in time to prevent the harm. Hence arises the need for societal institutions, external to a particular situation where harm to others can be caused, to prevent or remedy such harm. This is the function of justice.

Thus, to have true justice in a particular case, it is clear that the harm to innocent persons in that case must be prevented or remedied – and, just as importantly, no harm must be caused by the process of justice itself. This is impossible to accomplish without a finely targeted approach: one that attempts to fathom the particular situation in all its relevant details, to establish the harm being committed or threatened, and to develop a way of neutralizing that harm which will punish only the guilty, and only in proportion to their guilt. A simplistic rule, conceived to apply to a myriad of diverse cases, apart from the context of these particular cases, is not adequate to this task.

It may seem at first glance that the attainment of particular justice precludes the application of any principles whatsoever. After all, are principles not themselves general rules that are developed apart from any given particular case? Yet it is not possible to reach a non-arbitrary decision on any matter without having some standards on which to base that decision. And there are indeed standards which are universally applicable to all human beings – derivable from the desirability of human life and flourishing, and from the mechanisms by which such values can be preserved and expanded. Among these standards are the natural rights of all humans: the right to act in the furtherance of one’s life, the right to acquire and keep property by naturally legitimate means, the right to interact with consenting others, and the right to be free from aggression, expropriation, and unwarranted punishment.

Indeed, the very definition of what constitutes an unjust harm is dependent on the principles of natural law. For instance, it is not an unjust harm if a person becomes displaced from a particular field of work because technological advances by others rendered that field of work obsolete. Because the technological advances and their creators did not rob, injure, kill, threaten, or defraud anyone, they are in complete accord with justice. The people displaced from their jobs may be worse off temporarily, but they always have an opportunity to retrain themselves in a society that respects their rights. Moreover, because they did not have the right to hold a particular job in the first place – as such a job was the result of an agreement that requires the continuing consent of two parties – they lost nothing to which they were entitled. On the other hand, it may be salutary from the standpoint of voluntary, private morality for the employers of such displaced individuals to offer to support their re-training or to aid them in finding alternate jobs.

But the universal standards of natural law are not the standards used by egalitarian justice; rather, egalitarianism tends to develop highly concrete criteria that are applied irrespective of whether they satisfy the abstract universal principles of justice. According to the most widespread embodiments of this philosophy, everyone must be subjected to the same minutiae, in an attempt to approximate just outcomes on a society-wide level. By contrast, in true justice, universal principles are not tied to any specific set of objects, procedures, or prescriptions for concrete behaviors. Rather, each principle can only be properly applied by considering the context in which it is relevant. To say, for instance, that honesty is a universal principle does not translate into concrete mandates or prohibitions for every situation; while it may not be justified to lie in most situations, in some – including situations where an aggressor demands the truth so as to inflict harm on its basis – lying may be morally necessary. It is an unfortunate characteristic of the egalitarian thinking of our era that abstract principles often become reified into a laundry list of byzantine particulars, whose “uniform” imposition then becomes seen as synonymous with justice – to the detriment of the very principles of justice that were supposed to be advanced in the first place.

While universal moral principles do not change, there are two important aspects of the world that do change continually: (1) our knowledge and understanding of these principles and (2) the specific concretes of our existence, to which those principles need to be applied. Moral philosophy is, and should be, an ever-evolving discipline, not because there are no truths to be found, but because no one can claim to have found all the truths or to have developed all of the facets of any true idea. At the same time, new discoveries, inventions, and societal changes raise new questions and dilemmas regarding how moral principles ought to be applied. The attempt of egalitarianism to set uniform concrete norms that apply to all people in all cases stands in defiance of the dynamic context in which we live and strive to fathom justice and reality. Egalitarianism, even based on the best effort to integrate the most advanced knowledge and the most rational thinking currently available, freezes justice in time and cuts off the prospects for a variety of innovative approaches that often occur simultaneously with one another within different subsets of any given society.

Because of the complexity of individual circumstances, every concrete norm, applied too broadly, will harm some innocent people. Particular, principled, context-specific justice would avoid this problem by being flexible with respect to concrete norms. For this, the discretion of the entity that dispenses justice is of foremost importance. Without discretion, no deviation from a concrete norm is possible – and, consequently, there is no way to avert innocent suffering. Discretion by a reasonable intelligent person, however, can avoid all of the obvious harms of a given norm – and the most competent and scrupulous dispensers of justice can even structure remedies so as to avoid subtle and indirect harms. Discretion should not be unlimited, and its exercise should be allowed in such a manner as would not extend the authority of the dispenser of justice beyond its intended sphere. Moreover, every care should be taken to prevent such discretion from resulting in draconian outcomes. But the limits imposed upon discretion should never prevent contextually warranted leniency or experimentation with remedies that are more palatable to all parties involved than those suggested by precedent or tradition.

To apply a general principle properly to a given situation, knowledge of the situation is crucial. The difference between true justice and egalitarian justice is akin to the difference between two applications of the principle of healthy eating: one approach makes choices regarding the nutritional value of every particular item of food one encounters, in the context in which one encounters it, while the other approach develops in advance a “diet” that consists of context-independent prohibitions on certain foods and requirements for certain other foods. Following a sub-optimal strategy for healthy eating may still make one healthier on net and, in that case, is not perilous. But this is because the individual is the basic moral unit; actions that benefit an individual on net while causing some discomfort, inconvenience, or inefficiency to that individual are therefore acceptable. But there can be no legitimate consideration of what benefits “society on net” which disregards harms to any individuals that occur in the process. Society is not a moral unit, and harms to its “components” cannot be brushed aside as necessary to advance an ostensibly greater goal.

Of course, for particular, principles-based justice to be applied to any systematic extent, both prevailing legal systems and moral understandings would need to change; the latter change would most likely need to precede the former, at least among the people who can affect the legal systems. Egalitarian justice attempts to treat particular situations independently of context or consequences; such treatment cannot be reconciled with the principles of justice. True justice encounters reality directly and infuses into it improvements – protections for the innocent, punishments for the guilty, and a closer approximation of a society where natural law is obeyed and the principle of merit is reflected.

Read other articles in The Rational Argumentator’s Issue CCXLIV.

Illiberal Belief #6: Good Intentions Are Enough – Article by Bradley Doucet

Illiberal Belief #6: Good Intentions Are Enough – Article by Bradley Doucet

The New Renaissance Hat
Bradley Doucet
November 11, 2012
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  There is a tendency among some people to focus almost exclusively on intentions. They may not explicitly believe that motives are all that matter, but they speak and argue as though that were the case. They spend a lot of time praising people they think have good intentions, who they imagine will act in ways that are beneficial to others, while condemning those they think have bad intentions, who they imagine will act in ways that are beneficial to themselves (either disregarding others or knowingly injuring them).There are several reasons why being overly concerned with people’s intentions in this way is misguided. First, it is simply not possible to be sure what another person’s motives are in any given instance. We are not mind readers, so when we infer someone’s intentions from his or her actions and declarations, we do so with a greater or lesser amount of uncertainty. To claim to have knowledge of another person’s mind is simply arrogant. It is sometimes not even possible in certain cases to be sure about our own motivations, much less someone else’s. This is because intentions are complex. We likely have several reasons motivating any given action, some of which even push us in opposite directions.

A second problem with obsessing about intentions is that actions which benefit oneself often benefit others as well. If I work in order to make money, those who voluntarily purchase the product of my labour also benefit, and this is equally true of any voluntary market transaction. This kind of self-interest should be praised as the motor that drives the world to become ever more prosperous, with condemnation reserved for that sub-category of self-interested actions which actually do harm the interests of others.

Finally, it has been said before, but it bears repeating: the road to hell is paved with good intentions. Good intentions alone—even redefined to include benign self-interested intentions, and even setting aside the very real knowledge problems involved—are simply not enough. What’s the use in wanting to help the poor, for instance, if the manner in which I choose to do so succeeds only in perpetuating their plight? If one wants to do good, one must actually learn how to do good, or one may very well inadvertently end up making things worse. Instead of wasting time judging people based on what we imagine their intentions to be, we should focus on whether what they are saying makes sense, and on whether the results of their actions are actually good.

Bradley Doucet is Le Quebecois Libré‘s English Editor. A writer living in Montreal, he has studied philosophy and economics, and is currently completing a novel on the pursuit of happiness. He also writes for The New Individualist, an Objectivist magazine published by The Atlas Society, and sings.
On Moral Responsibility in General and in the Context of Voting – Article by G. Stolyarov II

On Moral Responsibility in General and in the Context of Voting – Article by G. Stolyarov II

The New Renaissance Hat
G. Stolyarov II
November 3, 2012
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Here, I aim to briefly outline the general nature of moral responsibility as well as its implications for how a person ought to approach voting in an election.

Moral Responsibility in General

The source of all morality is the life of the human individual. As I explain in my video series, “Life as the Origin and Basis of Morality” (see Part 1 and Part 2), the life of the individual is the necessary precondition for any moral system, and therefore the preservation of that life is the foremost moral principle. The principle has to be universalizable to all individuals, or else one’s claim to the legitimacy of protection for one’s own life would be arbitrary and simply a matter of “might making right” (that is, if one can protect oneself against stronger individuals who do not recognize this legitimacy). If, however, one recognizes that the moral primacy of life is an abstract principle that can be applied to every person, then one can justly claim the moral high ground in defending one’s own right to life as an implication of this principle.

The existence of moral responsibility arises from two facts: (i) human beings can choose their actions, and (ii) various human actions can have varying degrees of beneficial or harmful consequences to human life. An action is moral if it benefits the life of any human being (including the actor) without harming any other human being. An action is immoral if it directly and unavoidably harms the life and infringes on the legitimate prerogatives of any human being – even if some other party might benefit from the action. Because each individual human being is an end in him- or herself, no action that “benefits” some people by harming others can be considered moral.  The deliberate and direct infliction of harm upon any person trumps any possible benefit that can be gained from an action. Furthermore, in reality (contrived hypothetical “train-track” scenarios notwithstanding), it is causally impossible for a harm to result in a benefit and for genuine benefit to be unachievable without harm.

Moral responsibility can be a source of both praise and criticism. A person should be praised if he is morally responsible for a beneficial action. A person should be criticized if he is morally responsible for an accumulation of sufficiently harmful actions. It is possible for a generally good person to be morally responsible for a harmful action. This alone does not make the person evil, and a person may compensate for a harmful action through restitution to its victims. Once appropriate restitution has been made, the harmful action should cease to adversely affect our judgment of the perpetrator. However, restitution to persons other than the victims would not suffice, because the benefit of one person cannot outweigh the harm done to another. If irreversible harm has been done, the moral wrong cannot be fully righted, and therefore the perpetrator must always bear some degree of moral responsibility. However, the adverse judgment of the perpetrator can be mitigated if the victim remains alive and decides that the perpetrator can confer a certain alternative benefit that would compensate for the harm without undoing it.

To clarify, this principle does not prohibit or denounce the use of force in order to defend oneself against harm or to punish a wrongdoer who has inflicted harm, as long as the punishment is proportional to the harm and has the effect of preventing future harm committed by such a wrongdoer. However, the retaliatory use of force is only appropriate if directed against genuine wrongdoers, exercised with extreme care for its proportionality, exercised lawfully, and performed without “collateral damage” to innocents. Infliction of harm upon an innocent person is never morally justified, for any goal.

A person is only morally responsible for actions directly within his or her control. A person does not bear any share of “collective guilt” for the actions of others whom somebody deems to be “similar” to that person in some respect. Neither does a person bear any “blood guilt” for the actions of ancestors or descendants. Sometimes a person’s actions may contribute to a larger harm – as when large numbers of people make poor decisions that result in a combined substantial damage to the lives of some innocents. In that case, each person whose actions directly contribute to the harm bears some degree of moral responsibility, in proportion to his or her contribution to the harm. However, in such cases, it is extremely difficult to isolate the contribution of any particular individual, and so the most practical remedy is not restitution, but rather the persuasion of individuals to desist from continuing to contribute to the harm.

Because moral responsibility relates to actual benefit and harm to human beings, there can be no moral responsibility for “victimless” actions, though one can bear moral responsibility for either benefiting or harming oneself. The moral responsibility for harming oneself can only be compensated for through reparations to oneself – i.e., through performance of actions that benefit oneself and undo the harm. Thus, actions that harm oneself alone cannot be undone by adhering to the dictates of others, and so no prohibition or external punishment can ever be appropriate for such actions. This is why a legitimate legal system would only prohibit and punish harm inflicted by an individual upon others and would allow an individual to harm himself without legal penalty. In this way, a class of immoral actions (harms to oneself) ought to be entirely legal. If an action does not damage the life of either oneself or others, then it can be neither illegal nor immoral.

While morality ultimately focuses on consequences, an individual’s intent in carrying out an action can have long-term effects on that individual’s moral standing. It is possible to have ill intent in carrying out an action but, through good fortune, to end up harming no one. In that case, no moral responsibility can exist because no one has been harmed. However, a person who continues to act upon ill intent is extremely likely to cause actual harm through repeated action. Therefore, acting with ill intent is like a game of Russian roulette as far as moral responsibility is concerned. One might escape moral responsibility any given time, but the probability of incurring it in the future is close to certain. Furthermore, acting with ill intent ultimately damages the individual’s capacity to choose morally, as it results in the reinforcement of habits of thought which oppose the preservation of human life and the cultivation of human civilization.  Likewise, good intent can assist an individual in committing moral actions by cultivating habits of thought that render moral choices easier. However, good intent must be reflected in benefits to human life before an action can be considered moral. Good intent cannot absolve a person of moral responsibility for a harmful act, though it should (if aided by an understanding of cause and effect) assist the person in avoiding similar harmful acts in the future.

 Moral Responsibility and Voting

In any scenario of voting, the individuals who participate are numerous, and the outcome results from an aggregation of individual votes. No given person can be said to specifically be responsible for the outcome of the election being one way or another, even if the outcome results from a difference of one vote (because anyone else’s one vote would have had the identical impact). Nonetheless, if the outcome of an election is the rise to office of politicians who perpetrate harmful actions, then the people who voted for those politicians share some of the moral responsibility in the harms – since, without the vote, those politicians would most likely not have come to power (unless they staged a coup). A clear case of this is the moral responsibility of the Germans in 1933 who gave Hitler’s Nazi Party the plurality of the vote. Were it not for this moral sanction, the harms committed by the Nazi Party would never have come to pass. Of course, the moral responsibility of the typical German voter who supported Hitler was slight compared to the moral responsibility of the actual Nazi leaders and their followers who actually partook in carnage and destruction. Nonetheless, by committing an action that clearly demonstrated support for the Nazi Party, even the otherwise peaceful Germans who voted for it helped to make its atrocities possible.

A person who does not vote for a winning candidate (either by voting for a losing candidate or by not voting at all) cannot have moral responsibility for what transpires when the winning candidate is elected, because he did not grant support to and sometimes explicitly opposed the winning candidate. He can therefore justifiably say, of what transpires afterward, that it did not transpire with his approval or assistance. In electoral situations, it is seldom the case that a single person can make all the difference (unless he is exceptionally good at persuasion of vast numbers of people), but a single person can choose not to be part of the problem. This is why a person should always vote his conscience (if he votes at all) and should never support a candidate who might commit incremental harm relative to the status quo, in that person’s view. However, a person could justifiably support a candidate who might bring about incremental benefit, even if that benefit is not as comprehensive as the voter might desire.

It is important to note that voting for a candidate who would commit incremental harm is not justified by the presence of a candidate whom one expects to commit even greater harm. Because harm can never bring benefit, it should follow that the infliction of lesser harms can never avert greater harms. The person who actively supports a move in the direction of harm (relative to the status quo) simply legitimizes the political system’s infliction of harm upon himself and others. By signaling to the political system that he will tolerate a certain degree of incremental worsening of his situation, he invites politicians to gradually ratchet up the degree of harm they cause, as long as they can claim (justifiably or not) that their opponents would bring about even greater harm.

In this case, what is the nature of the moral responsibility of the person who votes for a “lesser evil” in his mind? If the “lesser evil” loses, then there is clearly no moral responsibility if the person did not otherwise engage in harmful behavior to promote the “lesser evil” or to damage those who criticized the “lesser evil.” However, support for a losing “lesser evil” can lead to unfortunate habits of thought that would leave one vulnerable to the entreaties of politicians who intend to inflict harm. Just like ill intent in committing an action leaves one vulnerable to committing harm in the future, voting for a losing “lesser evil” leaves one vulnerable to voting for a winning “lesser evil” in the future. If one votes for an incrementally harmful candidate who wins, then one does share in the moral responsibility of those actions which a reasonable person could have anticipated on the basis of the candidate’s past record, rhetoric (including any tendencies for duplicity and lies contained therein), and character. This moral responsibility is clearly not of the same caliber as the moral responsibility of the politician who actually inflicts the harms, or the enforcers who act on his behalf. Furthermore, because the moral responsibility of voters is always highly dispersed, it is impractical to design appropriate restitution for it. Rather, the sole practical remedy is for the voters in question to recognize the mistake of their prior actions and, in the future, to work to the extent of their abilities to undo the harms of the winning candidate’s actions in office. For instance, a person who recognizes that he was deceived into supporting a “lesser evil” who won can focus his efforts on defeating this politician or similar politicians as the next election approaches. This person could also work at persuading others not to make similar mistakes.

The most reliable way to avoid adverse moral responsibility in voting is to vote for a candidate whom one considers to be an improvement over the status quo in absolute, not relative, terms – and without regard for how others might vote. Morality is not based on consensus, but on objective truth. One’s own understanding of objective truth, and the continual pursuit of improving that understanding, is the best path to moral action and the habits of thought that facilitate it.

As the ISideWith.com survey of voter preferences shows, if voters truly voted in accordance to their understanding of the most preferable courses of action, the American electoral landscape in 2012 would be quite different. For one, the 2012 Presidential contest would clearly be between Gary Johnson and Barack Obama, rather than between Obama and Mitt Romney.