All Commentary
Saturday, December 1, 1984

A Second Face of Justice

Mr. Foley, a partner in Schwabe, Williamson, Wyatt, Moore & Roberts, practices law in Portland, Oregon.

Long Ago and far away, flushed with the certainty of youth, I postulated respect for free non-aggressive choice as the Rosetta stone of justice. (“In Quest of Justice,” The Freeman, May 1974) Today, refreshed with the enforced humility of later years of reflection, I recognize that my earlier cognitive mean-derings suffered from the myopia often attendant upon self-assuredness. I remain committed to the belief that justice, in the milieu of proper conduct between individuals (singly or in groups), does indeed require untrammeled respect for free and uncoercive choice by every other actor. Thus, the inane propositions of those who glibly justify restraints on liberty by the phrase “social justice” fall mortally wounded in the conceptual fray on the sword of true justice defined in the terms of human respect for another’s freedom.

However, the definition of justice limited to the “social” or individual sense suffers from unduly restrictive borders: It does not look beyond the individual to perceive the universal. Philosophers and theologians of centuries past have searched for a talisman dedicated to understanding justice in the relationship of man to his universe. The inquiry becomes pertinent even for those consumed by a passion for social justice, since the latter employ an exceedingly large amount of their time in attempts to right perceived wrongs suffered by individuals seemingly impaled upon the tines of an anonymous, cold, and sometimes cruel inexorable natural order, merely as an unintended result of well-intentioned and most seemly human conduct.

Since the days of Job, cognitive man has inquired why evils befall some persons and skirt about the lives of others. Rumination about rejection by the perfect girl, denial of privilege or advancement, death by senseless mass murder, crippling by disease, destruction of property by fire, flood, and pestilence, and a whole host of other affronts tends to occasion self-pity but precious little real comprehension of the rationale undergirding this eternal dilemma. The fortunate prate about the best of all possible worlds, while the afflicted receive a modicum of succor from Voltaire’s Candide. Properly considered, both views possess merit; they simply address discrete but related questions.

Defining Justice

The two seminal interrogatories concerning justice may be propounded as follows: First, define justice in the context of individual human beings acting in society with other human beings; second, define justice in the context of an individual human being in relation to the universe about him.

I propose the following working definitions. First, justice among men consists of respect for the non-coercive free choice of all other human beings. Second, justice in the natural order consists of the consistent application of truth. In this light, Alexander Pope correctly viewed the world as judgmentally fit; Voltaire just as aptly noted the myriad flaws in application of that tenet to human endeavor and interaction which, in that century as today, suffered from incursions into personal liberty too numerous to count.

One may posit the world as value free, yet he must still face the inquiry and differentiation of justice of and in the natural order. Calamity occurring without effective human causation does not merit either appellation, just or unjust. Natural events take place in the regular and orderly sequence demonstrative of inexorable causality. Unless one subsumes an organic free will at tribute in impersonal organisms, objects and events, judgmental applause or opprobrium appears clearly misplaced.

Justice necessarily involves the choosing process indigenous and unique to a being possessed of free will, the ability to affect results meaningfully and to alter causality. Man must take nature as he finds it; to this extent, individuals act in a closed system—man must play the game according to a set of rules imposed from without his person and sans human contribution or concurrence. The inherent justice and propriety of the universal order and its Creator poses yet a third line of inquiry beyond the limits of this essay; for the purposes of this fragment, I presuppose the existence of a value-flee natural order.

In assessing justice in the sense of the relationship of individual man to his universe, one must focus upon the quintessence of that outward empire. The inestimable Albert Jay Nock urged that the scholar should attempt “to see things as they are.” At the risk of superfluity, I propose that truth (as employed in my second definition of justice) consists of just that attribute: Recognition of the essence of our world. I have employed “universe” and “world,” among other terms, in this tract as easy labels for the vast natural phenomena in which we find ourselves.

New Horizons

Mankind’s increasing ability to look inward and outward has revealed a greater sense of immensity and complexity than pondering searchers once realized. For example, scarcely a month passes without a yet more wondrous revelation in one of the hard sciences concerning discoveries of more minute and regular sub-atomic particles which perform essential functions in the development of matter, or the discerning of still more intricate order-ings of distant and hitherto unforeseen nebulae, black holes, dwarf stars, or the like. What once passed for science fiction pales before the commonplace perceptive and analytical achievements of the age.

The enormous size of the natural environment should serve to underscore both the essential complexity and purpose of the human being and his rather modest and downright indifferent accomplishments in this vast scheme. Sixty centuries or so of recorded reflective human history reveal but halting feints at knowledge-at discernment of things as they truly are—given the panoply of tools and the panorama of evidence available in this necessary pilgrimage. In place of study, reflection and analysis, the human creature has expended the great bulk of his energy and enterprise in the warring quest for power and enslavement.

Even today, gifted with the discoveries of countless forebears over myriad years, the thrust for grasping reality all too often is relegated to the laboratory ash can unless a military purpose glimmers on the horizon. Increased knowledge has not yielded objective betterment in human relations: By and large, men and women exhibit the identical unlovely traits today as they did in ancient Sumer, Mesopotamia, or Carthage. The sole observable distinction lies in the ability of modern mass man to deceive, enslave, and destroy his fellows with ever greater efficiency and rationalization.

Furthermore, human knowledge has not penetrated much below the superficial layer of extrinsic evidence. Insightful minds over the years have only dimly observed the elemental foundations of living beings, of inanimate matter, and of the laws of causality; indeed, all too often that which has been accepted as common lore has been proven demonstrably false (although recognition of fallacy ordinarily occurs grudgingly and indolently at best). And yet, pitiful men herald each new discovery as the lodestar to the ultimate unveiling of the deepest se crets of the universe, only to supplant that particular bit of wisdom next fortnight with an ever- more-current encyclic solution. Each outward or inward step yields a subsequent insight into an ever-more-complex substrata, casting doubt upon the likelihood that human beings will ever scratch the essential surface of reality.

In light of the patent intricacy of the universe, one would anticipate that mere mortals would stand in awe of creation and act with due humility in its presence. Observation reveals quite the opposite: Most individuals exist in a pre-reflective state and direct most of their poorly conceived actions toward mastery of others and satisfaction of base desires, secure in the abysmal as sumption that they stand in the center of the universe and possess the capacity and moral understanding to counter and conquer eternal truth. Refusal to view things as they really are leads inevitably to the dictocratic state of mind, to a belief (in the pithy words of Arthur Shenfield) that we can, indeed, turn iron into gold and men into women.

Appropriate testing of the second facet of justice mandates an overview of the concepts of “truth” and “consistency,” as well as the interrelationship between these two polestars of justice.

Mr. Nock’s simple definition of truth (or reality or nature)—things as they really are—cannot bear improvement. The universe, including mankind, exists. Truth or reality merely refers to the essence of matter, space, time and force, the combinations of those phenomena, and inexorable rules governing the system and relationships within the order.

Simple statement masks complex epistemological quandaries. Mankind lives in the center of reality, yet individuals encounter immense problems in discerning that very reality. The seminal inquiry, simply, is “Why do men find it so difficult, nay impossible, to learn the truth?” The explanation lies in the nature of the human being: Flawed, imperfect, becoming, subject to improvement but never capable of perfection.

An Orderly Universe, Individual Deviations

The universe exhibits precision and order; to that extent, it may be considered “perfect,” in that it operates exactly as constructed, without lapse or deviation. Mankind possesses quite a different nature: By virtue of his choice-making commission-his “free will”—he may direct his development and choose his destiny in a sense, and within the finity of his being, he may vary the natural order and alter the course of events. No other creature (and certainly no inanimate object or essence) enjoys this fearsome trait.

Moreover, this very characteristic of human fallibility which blemishes the perfect order demonstrates the reason for a substandard perception of truth. Because men are not perfect, they necessarily observe, evaluate, and relate universal and particular bits of knowledge with imperfection. Because men are capable of improvement, they may experience the faculty to approach the stars, to act more closely in harmony with the essence and rules of the universe. Perfect knowledge and, hence, perfect justice defies attainment; it remains an able quest for the human crusader.

The veil shrouding truth becomes more dense than necessary not only by virtue of our finite nature but also by reason of man’s dubious predilection to malevolence and smugness. Indeed, in a day of nearly instantaneous transmission of information and opinion about the globe, who among us has not decried the very vastness of the problem of knowing who and what to believe? Intentional falsehoods certainly appear throughout history, but the totalitarian in us all employs double talk and dissimulation at a pace and effect far beyond the giddy imagin-ings of tyrants past. Confusion of ends and means, misinterpretation of real data, blatant self-serving falsehood, and an utter disrespect for individual free choice coalesce in the widespread dissemination of consummate dogmatic error.

Negligent and intentional misinformation proves equally disconcerting. The identical source—mankind’s essential disfigure-ment-produces negligent, unvarnished nonsense as well as volitional misstatement. Few individuals recognize, accept and act upon the fundamental postulate of their own flawed nature—the essential propensity to err and fall short. Instead, men posture like bantam roosters, smug and self-assured that they alone occupy the center of creation, possessed of inherent ability to do right in all things. This universal tendency—itself a reflection of inconsistent application and incorrect perception of truth—obviates the humility necessary, first, to ascertain the real nature of the universe, and second, to accord to other men and women the right to live their peaceful lives in their search for truth and justice.

The errors of perception and analysis which cloud human eyes flow from undiscerning belief in personal infallibility as well as blind acceptance of scientific and historical analyses by other mortals, all of whom speak or report from in grained (and sometimes unrecognized) bias and presupposition. Precise attention to truth proves impossible because ulterior motive and inadequate comprehension and assessment intervene.

Proceed to the concept of consistency. The doctrine essentially compels the employment of identical rules to identical situations, and similar rules to similar situations. The true equality appears not in hu-man-decreed regulations of dissimilar matters, but in the inexorable natural laws of order prevailing in the universe. The law of gravity exacts its price from a fall from the observation deck of the Empire State building, quite oblivious of the label attached to the descending body: Commoner and king, gentleman and knave, all receive similar treatment.

The Consequences of Choice

The existence of free men in a closed system creates an apparent dichotomy which dissolves upon reflection. A value-free universe exists, governed by exact laws which apply sanctions to given choices of action. Man must cope with this closed system, yet he possesses the ability to choose meaningfully between alternatives and to vary the outcome of events; his individual selection from an array of choice not only affects his own destiny but also the course of events and available choices for other individuals living and acting within the same system.

The natural rules of order and causality merely define the perimeters of the universe, prescribing the results from a concatenation of chosen actions superimposed upon existent matter, space, time and force. Man’s conduct within these boundaries fashions these results by choosing from the permitted array of activities; man possesses the ultimate ability to affect his own destiny (and that of others) even to the extent of choosing to disbelieve truth or to act malevolently, foolishly or irrationally. The exaction of a sanction in the nature of an unpleasant result flowing from an unwise action does not alter the power of the human being to make such ultimate choices; the sanction follows as .an unchangeable result decreed by the natural order of things.

Consistency precludes the application of the double standards so prevalent today. Unfortunately, all of us suffer (at least at times) from the ravages of inconsistency. Several reasons occasion this deviation. First, individuals perceive truth with varying degrees of acumen; inaccurate assessment of reality easily leads to disparate handling of related problems. Second, mankind understands the rules of causality erratically at best; the law of cause-and-consequence represents one aspect of truth that is misperceived, overlooked or ignored; it also operates independently by thwarting actors perceiving an essence of reality but miscomprehending the causal nexus to the inexorable (but humanly unexpected) result. Third, people are perverse; mankind delights in judging similar things in a dissimilar fashion, all in the good name of “social justice.” Fourth, individuals ordinarily misconceive their role and their power to alter natural rules of causality and order; most men and women perform in the apparent belief that they can outwit the laws of nature.

Inconsistencies Abound

The absence of consistency mars all political movements. The liberal holds the tenet of free speech dear, yet demands the privilege of stating the agenda, setting the boundaries, and compelling the dissenting minority to fund the majority hyperbole. Coercively-acquired tax monies support not only public broadcasting editorials and purported documentaries, but also a vast range of spokesmen for political, legal, social, economic, historical and policy creeds or points of view. Valid dissenting opinions are shut out of the mainstream discussion and are often subjected to government-sponsored ridicule if not punishment: A contrary view on the political situation in South Africa or Israel, on the racially-related aspects of criminal behavior, or the immorality of public education, must not be countenanced by the liberal defender of the First Amendment.

The conservative earns almost as many demerits. Many employing this description urge “free enterprise economics” while securing special favors from the government in the form of subsidies, contractual incentives, barriers to market entry by competitors and the like. Those donning the conservative hat tend also to favor foreign military intervention, conscription, excessive defense expenditures and the like, overlooking the propriety of minding one’s own business in a peaceable fashion.

Even the grandiloquent “Libertarian Party” founders upon such shoals as the abortion mania and general gradualism; for example, the 1980 presidential campaign of the Libertarian Party witnessed a call for federal income tax “reform” which would modify but retain the graduated tax concept; apparently it is wrong to steal a silver tea service, but a knife and fork will do nicely!

Again, the same afflictions hampering the discovery of truth likewise do impede the consistent application of reality once known. Problems of perception and application render the goal unattainable; they ought not deflect us from the trek. The belief in accountability or responsibility requires each of us to act most harmoniously with the real nature of things as they truly are in all contexts.

It remains to note the interrelationship between these two faces of justice. If I have correctly posited the rules and the underpinnings, it would seem that an inapt recognition of both situations bears responsibility for much of the grief in the world. Accountable man in a value-free universe should order his actions, as nearly as possible, in harmony with the state of the natural environment. He will forecast erroneously on occasion, causing unexpected and often unhappy results. He will achieve propitious results in direct proportion to the relationship between his choices and the natural order.

Sadly, this scene occurs rarely. Generally, men refrain and refuse to live with the untoward results of their silly choices; instead, employing the plunder state to its fullest extent, they shunt the consequences of their individual or collective blundering onto the shoulders of an unwilling but less powerful citizenry.

Thus, when social entitlement programs transfer looted property from producers to takers to such an extent that even the revenue authorities blush, fiscal and monetary card tricks and shell games create a chimera of inflation caused by evildoers as a readily-accepted explanation for travail; the takers and the users deflect criticism for economic misallocation and erosion of savings away from the real culprits by pointing the accusing finger at “greedy businessmen,” “unrealistic wage claims,” “hoarders,” “foreign cartels” or whatever target appears handy and agreeable; all the while, the same victims—the creative few—receive yet another mulcting by camouflaged taxation.

The problem with justice lies in the fact that every person believes that he knows what is true and what is just when, actually, no one possesses that precise knowledge. Yet, this self-assured and smug state of mind impels most of us to be so certain that we know the proper exit from the maze that we feel compelled to obligate all our fellows to follow our prod. Thus, a rare indi vidual indeed grants complete respect for the non-coercive free choice of all other human beings in society.

American folklore once canonized the free thinker like Henry David Thoreau; today the vast majority pay mere lip service to this tradition; a plunder state cannot tolerate those who hear distant drums—they might, just might, possess some insight into the consistent application of things as they truly are.

  • Ridgway K. Foley Jr. is a litigation lawyer who is passionate about individual and economic freedom, and has authored numerous scholarly articles on related subjects.