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.