All Commentary
Wednesday, May 1, 1974

In Quest of Justice


Mr. Foley, a partner in Souther, Spaulding, Kinsey, Williamson & Schwabe, practices law in Portland, Oregon.

Many thinkers, jurists, philosophers and statesmen have searched across the centuries for the meaning and content of justice. Like many open-textured concepts, the essence of the word has proved elusive.

Justice should be constrained to a consideration of interpersonal relationships and should exclude relationships between man and the universe.

However, such circumscription suffers one potential hazard: it excludes man-to-impersonal-object or nonhuman relationships. For example, our categorization eliminates consideration of justice vis-a-vis the hypothetical situation where a man kicks a friendly dog, drowns a kitten, or teases a bird. Upon reflection, the suggested boundaries demonstrate no impediment to analysis of justice.

First, mistreatment of animals belonging to (the property of) another human being finds inclusion in the human relationships posited. If I drown your pet kitten, I exhibit malice toward you in a subtly different way than if I punch you in the nose, but malice all the same.

Second, man-non-man relationships manifest something concerning the nature of man-the-actor; the characteristics impelling one to kick a dog or to torture a horse generally reveal themselves in other human affairs. Thus, exclusion of the specific example does not necessarily exclude consideration of the fundamental attributes.

Third, human-impersonal object liaisons probably do not deserve consideration within the ambit of the notion of justice. Rather, my treatment of spiders, of forests, of farmhouses, and the like (beyond any incidental human relationships) concerns my goodness and my essential nature. As such, the matters rather become issues for determination between me and my God; in other words, they relate to justice in the broader sense, that is, justice beyond the power of man to effect and affect. Thus, man can affect events in this milieu to the extent that he can alter his life and mold his character to conform to the nature of the universe, but he has no power to alter the standards and norms which measure that nature. Justice, as we are concerned with it in this essay, considers only relationships between two or more human beings where the conduct of one can affect the life of another.

Justice: The Seminal Norm

One quality, above all others, distinguishes man from other inhabitants of this planet: he possesses the power to make choices (reasoned decisions between alternatives) and each choice he makes constitutes a moral choice.

Concomitant to this quality exists the power of man to affect the lives of his fellow human beings. Man can attract, persuade, or force other men to act in the way he desires them to act. Man’s choices affect not only the actor but also other persons resident, now or at other times, upon the landscape. In a very real sense, what I do today can expand or limit the choices available to those in my community and to those who may come after me.

Thus, we can define justice as respect for free choice. Justice demands that no man interfere with choices affecting the life, liberty, or property of another human being by coercion, fraud, or duress. Each man must be left free to determine his own destiny, to seek his own goals, to live his own life as he sees fit. No one can effectively live a life for another and none should try to do so. Spoken in another manner, each individual should always treat other human beings as human beings, never as objects. To treat a person as a person compels the actor to respect the essential humanity of his fellows, and that essential humanity can be defined as one’s right to choose. Each person exists as a child of God, and deserves that treatment and respect which should be reserved for the Creative Energy underlying creation, whether termed a personal God or an impersonal natural law.

Justice obligates man to eschew violence and to stress attraction.’ Human beings may justifiably employ force in limited circumstances: to repel invasion, to quell insurrection, to impede the imposition of force and fraud upon unwilling combatants, and to settle disputes. Writ large, force should only be utilized to parry force. “Might does not make right” underlies the whole proposition. Moreover, one should only employ that amount of force necessary to discourage or rebuff the violence initially practiced; any greater application represents a coercive intervention into the arena which must be left unfettered to the choice-making apparatus of free men.

Justice Reflects the Nature of Man

At least three conflicting views of mankind find current acceptance in political philosophy. For ease of analysis, we may refer to these as statism, anarchy, and voluntarism.2

Quite possibly, no imperfect human being perfectly fits the category of statist, anarchist, or voluntarist. Each of us may profess principles to which we aspire, and from which we fall short. Thus we speak of a statist as one who believes in state intervention into the lives of men, to some degree beyond the intervention accepted by the voluntarist which is solely to repel force and fraud. Obviously this appellation does not apply with equal zeal to each person;³ it may seem ill-conceived to apply the identical brand to Marxians, democratic socialists, and to businessmen who favor subsidies and price controls. Yet each, in his own way, represents the point of view that encourages state action to deprive free men of free choice. For sake of the present analysis, then, statist refers to one favoring partial or total state intervention in human affairs beyond the prevention of force and fraud, anarchist refers to one who decries all states and all state activity, and voluntarist refers to one who believes that the state possesses limited valid functions: the prevention of force and fraud and the administration of common justice.

An individual’s conception of justice mirrors his view of the nature of mankind. To the statist, man represents a perfectible being, capable and suitable for molding by the social engineer. Each person possessing this philosophy, in greater or lesser dimension, sees man as an object, as a creature whose choice may be limited with justification and impunity. To the extent that he adheres to such a tenet, the statist treats man as something less than human.

The anarchist likewise views man as perfectible, but as voluntarily or self-perfectible. Because man can achieve these heights, the state represents an unnecessary appendage to society. Justice would not countenance the use of organized force for the anarchist — man must retain a full circle of alternatives, even to the extent of visiting violence upon his neighbors. While a single paragraph cannot reconcile the pacifistic anarchist view with the concept of private justice and retaliatory force, and while such a subject merits deeper inspection,4 suffice it to say that the anarchist sees man as so perfectible that no constriction of his range of alternatives accords with justice, so long as the actor remains willing to accept the physical, natural, and moral consequences of his choice.

The voluntarist holds quite a different view of human nature and occupies a perch midway between statism and anarchy. He perceives of man as fallible and imperfectible, although capable of improvement. Because no person can achieve perfection, or even closely approach that ideal, no individual from the mass can, or ought to, dominate the life of another, equally infinite, individual. Since man retains a dark side, a predilection to violence, and fails to act with perfect reason, force lurks pervasively throughout the world. Force may be reasonably rebuffed only by organized force, else man’s lot degenerates into civil chaos. Private retaliation invites misreading of the situation and misapplication of coercive power; misapplication of force invites retaliation when the retaliatory force exceeds that which is necessary to allay the fraud and coercion initially instituted. Examples of misuse of private force litter history books: private armies, vigilante systems, and private detectives, acting without restraint of law, seem predisposed to avoid charity and deny recognition of personal rights. Private systems of protection and the settlement of disputes depend upon a perfect rationality by at least the vast majority of citizens occupying a given territory. The voluntarist doubts that man can achieve that station; until he does, man’s nature requires a limited collective force in accordance with a respect for free choice.

A Fundamental Premise: Man in Conflict

Almost all individuals, whatever their persuasion on the political or philosophical spectrum, agree that human beings conflict and disagree with one another. An imperfect being can anticipate no other result. Some men cannot conquer their sinister side and exhibit a proneness to violence and deceit. Choice, the most individualistic attribute of human nature, presupposes that choosing beings will pick alternative courses of conduct, and that with billions of persons exercising free choice, some conflict of choice will be inevitable.5

Most human conflicts resolve by voluntary means. I meet you on the sidewalk and one of us steps aside to allow the other to pass. My stereo disturbs your slumber; I reduce the volume willingly when you ask. Doe and Roe both reach the bargain counter at the same time and each wishes to purchase the last remaining item; the sales clerk makes an immediate choice to sell to Doe, thinking that he appeared first and Roe, while disappointed, turns away. Clearly, the more voluntary accommodation possible in society, the better.

Nevertheless, some conflicts do not afford a simple resolution, because of the rational difficulty of choosing between the two or more conflicting claims, or because of the imperfect personalities of the participants. The statist tends to view more conflicts as incapable of solution by voluntary means than either the anarchist or the voluntarist, and he exhibits no hesitancy in calling in the troops to coercively decide each and every issue the way some group in power believes that it should be solved. Such fetters manifest little or no respect for free choice and can be characterized as unjust.

The anarchist and the voluntarist, on the other hand, believe in the voluntary settlement of disputes in the widest possible degree consonant with good order. They differ in the mechanism to be utilized in solution of disagreements irreconcilable by voluntary means. The voluntarist opts for a limited government function — the forceful administration of justice—which will settle controversies which the parties cannot settle themselves and which will compel acceptance of the decision. The anarchist favors voluntary arbitration and private courts, apparently believing that the presumably rational parties will accede to the jurisdiction of these tribunals and accept an unfavorable decision. Practicing lawyers and experienced litigants display familiarity with recalcitrant parties who refuse to pay judgments voluntarily or to answer questions on cross-examination or who disrupt courtrooms with obnoxious conduct. Absent sanctions and an agreement to disagree as rational beings, voluntary arbitration and private courts offer no compelling answer to the problem.

In any event, individuals illustrating all phases of the spectrum recognize the need for rules to settle disputes, in either a private or a public milieu, and that such norms must accord with justice. The statist sees more disputes subject to arbitrary and coercive determination than his brethren, but this in no way gainsays that need for rules of decision. The anarchist wishes contests adjudicated by private agencies, but such tribunals must decide on the basis of rules harmonizing with justice. Let us examine certain fundamental principles which accord with justice as respect for free choice, rules which can produce a voluntary society upon faithful adherence, recognizing that one cannot exhaustively state all premises and qualifications appropriate to these norms in so short a space.6

Justice: The Subsidiary Norms

          Each man should keep his promises. Freedom to contract with regard to all manner of activity carries with it an interrelated aspect, similar to the fact that individual responsibility serves as the reverse side to personal liberty. Every man should be required to adhere to his solemn promises to the extent permitted by external forces and to the extent that another human being has justifiably relied upon those promises, if the promise was not initially extorted by force or fraud.

Application of this rule does not denigrate free choice: it respects it. If one voluntarily chooses a course of conduct affecting another person, the actor has predetermined a result and should not be heard to mulct the other party of his due. One can refuse to contract altogether, but once he enters into a contractual relationship he must be held bound by the terms of the agreement he actually entered, and no other.

          Every individual should pay for harms voluntarily caused. If man receives the right to act freely and to choose his own destiny, it follows that he must accept the moral responsibility for his choices. One result of free choice witnesses occasional collisions between conflicting human beings. If one voluntarily acting human being causes harm to another person by virtue of fault, be it an intentional or careless act, the actor should be required to compensate the victim to the extent of his harm, and no more.

Problems of causation, fault and amount of damages have plagued legal theorists for centuries, much as the problems of the implication of promises and the objective manifestations of assent. Mankind cannot fully know and appreciate the interweaving of cause-and-effect, nor can it recognize all avenues of fault without looking inside the human mind and soul, nor can it measure the harm directly attributable to a single act. Each problem can be solved only by finite approximation applied by fallible judges. The principle serves as a lodestar to be sought as an ultimate goal.

          Each individual should pay his own way. Every choice carries with it a real cost, sometimes clearly apparent to an observer, sometimes hidden and awaiting analysis. As nearly as possible, each choosing human being should accept the consequences of his conduct, and one consequence is the cost. Homely put, “there ain’t no such thing as a free lunch.” Someone must pay. A welfare payment or a subsidy puts money substitutes in the pocket of certain citizens, but it requires a taking from others in the community. Minimum wage laws force marginal workers from the market and deprive them of (cost them) their dignity. Examples proliferate. Application of this precept requires assessment of real cost in terms of Bastiat’s dictum: The Seen and The Unseen.

          No one is entitled to a windfall. Administration of justice should prevent unjust enrichment. Just as each man should pay his own way, he should pay no more. If mischance or external forces occasion a loss to one person and a gain to another without a voluntary trade, the office of law should be to restore the parties to their preexisting status.

          The creator of value should determine its retention and distribution. Man creates value. He applies his mind and his labor (direct or stored [capital]) to natural resources and produces goods and services which carry with them a subjective value. Thus, man also assesses value. Nothing material can be said to possess an inherent value absent relationship to a human being. Individuals place value on goods and services; they express that value by the value they have acquired which they are willing to trade for those goods and services.

The value discussed, sometimes denoted property, belongs to the creator (owner) or his designate. Thus, justice must recognize the right to private property in order to respect free choice. An essential collateral tenet of justice impels that retention or distribution or destruction of value must rest with the creator of that value or his transferee or nominee.7 Man denies justice to the extent that he sanctions nonproducers who dominate or destroy value created noncoercively by others. Just as man must pay his own way, so also must man not be compelled to pay someone else’s way.

          Each citizen of a state should bear an equal share of the expense of governance. Each individual citizen residing in a territory designated a state should bear an equal share of the common burden which includes the expense of administering that state. He should pay for any services directly rendered to him at his request. Each citizen benefits from the protection rendered by the state and from the alleviation of civil chaos and no one can properly claim that one person acquires a greater benefit than another. In addition, any citizen receiving a direct benefit at his request should pay his own way, including payment for such a service.

          No individual or group of individuals should initiate force or employ fraud against others. Only one man-concocted limitation upon free choice deserves respect: no man, acting singly or collectively, should act fraudulently or coercively toward his fellow man. To the extent that he violates this maxim, justice approves application of counterforce by the victim or by society at large, but the retaliatory force must not exceed that amount absolutely necessary to dispel the initial act else the retaliator, individual or state, becomes the aggressor and violates this norm.

          Treat similar instances in similar fashion. Anglo-American common-law tradition rests in part on the ancient concepts of stare decisis (the matter has been decided before) and res judicata (the thing has been determined previously). These Latin legal tenets represent application of the fundamental norm that similar situations or disputes should be decided in harmony or like fashion with other disputes of the same nature, involving either the same or different parties.

Similar treatment of similar situations finds justification in several reasons.

First, the norm rests upon the principle of predictability. Citizens ought to be able to plan their lives in full knowledge of the consequences which will attach legally to their conduct.

Second, the rule finds support in the concept of reliance. In substantive commercial and contractual areas of life, where planning performs a salient function, parties ought to be able to rely upon certain results as a consequence of their actions.

Third, earlier decisions contain the accumulated wisdom of the ages. The law builds on past experience and should not be lightly disregarded. Once courts of justice carefully consider a case and render a reasoned decision, transient causes ought not disturb the principle determined.

Fourth, failure to adhere to decided rules increases the costs of the administration of justice. Absent the effective role of precedent, more cases containing recurrent issues will have to be decided by trial and appellate courts.

Fifth, the sound use of precedent promotes a government of settled laws, not rule by finite man. A consistent result from case to case follows in the Anglo-American tradition as opposed to the civilian or Continental system which disregards stare decisis.

Sixth, in any jural system or decision-making context, a natural tendency exists — the human inclination to look over one’s shoulder to discern what was done before. The doctrine of treating like cases in like manner recognizes this tendency by providing an orderly method for use of past experience, a convenient tool for quickly and easily disposing of disputes.

Seventh, finally, and most importantly, adherence to precedent accords with the essential nature of justice, respect for free choice. Decisions once reached upon a rational basis should not be lightly overturned. To do so alters our government from one of laws to one of men. A flexible “rule” is no rule at all, but amounts to measuring “justice” by the length of the chancellor’s foot. Respect for free choice impels recognition of the consequences attaching to the operation of that choice-making power, and if these consequences can flow willy-nilly without predictability, man denigrates the essential humanity of his fellows and bears no responsibility for his moral choices. One cannot meaningfully choose unless his choice can affect and effect results.8

Adjudge all men equally before the law. Interrelated with the concept of deciding similar cases in similar fashion, justice also requires equality before the law. In those arenas in which law (organized coercion) plays a salient role, each man must receive identical treatment. Favoritism does not belong in a just society.

One must scrutinize this norm with caution and avoid the misapprehension so common today. Modern society witnesses a false egalitarianism stemming from misuse of the words of the Declaration of Independence (“all men are created equal”) and brought to fruition during the French Revolution (” Liberty, Equality, Fraternity”). Men are not equal; their distinction and their individuality represents the vitality of the human race and an essential attribute of mankind. Men possess different appearances and differing talents, distinct life spans and dissimilar values. Enforced equality means enforced mediocrity, where all individuals are cut and stretched to fit Procrustes’ Bed. Coerced egalitarianism demands application of destructive force to individuals and, except in the limited areas of prevention of fraud and force and administration of justice, justice disparages the use of force.

Equality before the law imposes a burden upon mankind, acting as a coercive state, to provide both substantive and procedural due process to all citizens vis-a-vis interpersonal and individual-state relations. For example, no man shall be tried for a crime in absentia; each man is entitled to his day in court in both civil and criminal causes; every citizen is entitled to fair notice and a complete hearing before a competent and unbiased tribunal; rank and station shall not determine application of sanctions; open trials prevail over secret Star Chambers; norms should not apply retroactively. A host of protective and preventive rules assure that each man brought to trial and faced with potential loss of freedom will receive equal treatment to other individuals similarly situated.

Conclusion.

Justice lies within. It represents an ideal toward which we must strive in our relationships with fellow human beings. If each of us will treat each other human being as a person, and respect the essential humanity of that person by respecting his right to free choice, we will achieve justice.

 

¹ See Read, Leonard E., “How to Advance Liberty” (The Foundation For Economic Education, Inc., Irvington-on Hudson, New York, 1964).

² I refer to a voluntarist as one who accepts a limited government, a state employed to discourage coercion and misrepresentation and to provide for common settlement of disputes. “Freedom philosopher” and “libertarian” have often gained favor as synonyms, but at least the latter has been recently co-opted by all manner of thinkers, rendering categorization most difficult.

³ The use and application of labels in the political spectrum merit separate treatment.

4 See, e.g., LeFevre, Robert, “Justice on Trial,” Reason (Vol. 3, No. 11) February 1972, page 18.

5 Such is the nature of freedom that millions upon millions of value judgments and choices cause basically little conflict. Freedom works better than coercion because it approaches Infinite Truth. See my essay “Choice or Chains” (April 1974 Freeman) for an examination of this phenomenon.

6 Many of these concepts are open-textured and require definition, which will not admit of perfect solution. See Foley, Ridgway K., sr., “The Myth of the Perfect Solution,” 23 Freeman No. 2, 104, 111-113 (February, 1973).

7 See Read, Leonard E., “Justice versus Social Justice,” Notes From FEE (The Foundation For Economic Education, Inc., Irvington-on-Hudson, New York, May 1972).

8 See essay cited in footnote 5, op. cit. 


  • 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.