Why Justice Asks the Impossible, or, Why Generalities are Always Imperfect in the Concrete World
One of the most important yet longest and least resolved quests for human beings is to define what is just as devise a way to achieve justice. It is a most important quest because in many things that we do socially, justice is what we strive for. But for such an important discussion – what is justice and how can we achieve it? – there seems to be so little resolution. One group defines justice this way while the other points out how that concept leads to some unjust results, and vice versa. (For a concrete example, some see justice as substantive – justice is when everyone has the same amount of x. Others point out that this can lead to unfair results when people receive equal desserts for unequal contribution. A different group conceives of justice procedurally – justice is equal application of rules and procedures. Their detractors point out, of course, that this leads to unfair results when some rules put disproportionate burden on some than others.)
For any conception we can come up with (with the exception of divine justice which is not subject to human constraint and fallibility), all we have to do is to think hard enough and we can come up with examples where such a conception of justice leads to unjust results.
While thinking about this today, I began wondering why all of our human conceptions of justice fall short. Is it that humans are fallible and as fallible beings we are bound toward fallible results? I’m sure that’s part of it. But there is another bigger reason why all concepts of human justice (in my view) are bound to fall short of the ideal: there is an inevitable disjunct between using abstractions to deal with a world of particulars. As humans, we have to abstract – what else are rules but abstract principles to be applied irrespective of context? – but abstractions, as abstractions, ignore particularity.
In the previous century, jurist Oliver Wendell Holmes Jr., and more recently, legal scholar Allen Dershowitz, have written that the law is not based on logic, but experience. In other words, a legal abstraction is created to rectify some felt societal wrong. But quite inevitably, some situation comes up that the law did not anticipate. The law is asked to play catch-up, and an addendum is introduced in order to cover that problem area, only to have some new unanticipated situation come up that once again tests the law, which in turn is again clarified.
In other words, Holmes and Dershowitz are pointing out that the law is, by necessity, reactionary and as a reactionary body, its justice will continually be tested by new situations it did not anticipate with a common effect that some situations arise where a seemingly just law does not provide desirable results in x number of situations.
This, it seems to me, is not so much an argument against law or that law should be proactive rather than reactive (how can one anticipate all future situations? There is as much danger in being proactive as reactive, of course!). Rather, this seems to be an inevitable result of the idea that law, by its nature, has to be an abstraction governing particulars. As an abstraction, the law must ignore particularities, which leads to certain situations – those where particularities may be a huge factor in the fairness of the outcome – lead to unfair results. (To put this in a concrete situation, laws against murder seem quite fair until a situation comes up where a killing was justified but under which the law does not recognize this particular exception. Try as we might to write exceptions into the law, there are always more exceptions we haven’t thought of yet.)
Of course, it seems that the easy way to solve this would be to conceive of justice as a situational thing where context is always relevant and dictates the proper conclusion. But this is objectionable for several reasons. First, there comes a point where exceptions render the rule pointless; if everything is to be judged on a case-by-casse basis, then there can be no rules of the matter. Second, this is every bit as imperfect a conception of justice as the overly procedural approach: some argue that judging every moral dilemma on a case-by-case basis is precisely the antithesis of justice (where all are treated differently) or, at very least, opens the door for unjust abuses (leaving everything to discretion puts a lot of power in the hands of the judge).
Really, the problem may be that our expectations are often too high for justice. Commonly arguments for a particular view of justice are halted as soon as an objector comes up with situations where the concept leads to undesired conclusions. But this method of procedure seems to suppose that a great argument against an idea of justice is that it is not 100% just, which supposes that there is such a concept to be found!
I believe very strongly that the best we can do socially is to find those visions of justice that are justified on utilitarian grounds, for exactly the reasons I state above. If our goal is to come up with the abstract idea that manages to cover every possible problem situation that can come up among such a diverse people as the human population, then my guess is that we will be waiting a long time. (Though this hope may make some people feel better, it does not solve any current problems, which may be solved best by imperfect but available solutions.)
In other words, we must accept the fact that if we increase the minimum wage, we price people out of jobs, but if we keep it where it is, more people get paid less. We must accept the fact that increasing healthcare coverage means a diminution in quality for the sake of quantity, but to not take this step means sacrificing in the opposite direction. We need to accept the fact that procedural justice may unfairly leave larger burdens on some than others, but substantive justice may unfairly equalize unequal merit. Tragically, the necessity of framing abstract concepts of justice (is there any other kind?!) will always meet our world of particulars in a way that is less than ideal.