Lady Justice vs Social Justice
Dear Ms. Jarvis,
I just wanted to follow up on a couple of your statements. One is that you do not “think that it is politicizing our profession in the direction of redistributing access to resources arbitrarily” by promoting social justice on a Rawlsian base. I would first note that your statement in this regard has been stereotypical of the mainstream scholars in this field. You all tend to claim something to the effect that social justice is something we can all agree on, that those who don’t agree with it do so because they are confused or have misconceptions about it, and that it is something that should be foisted on the entire profession through the Code of Ethics. This is a very discriminatory view, hardly revealing of any respect for moral or political diversity.
And it is radically incoherent to use the philosophy of a political philosopher like John Rawls to claim you are not politicizing the profession or promoting the arbitrary redistribution of wealth. Rawls is a political philosopher and his social justice philosophy involves a totalizing scheme that uses the government as a tool for controlling everybody’s wealth and income, including a branch of government called the Distributive Branch that is supposed to determine who has too much money and then take away from them whatever is considered to be the excess money. But he does not say how much money is too much money. He leaves it to the arbitrary whim of the political authorities to determine who has too much money. The claim that you are not politicizing the profession by promoting Rawlsian social justice is equivalent to promoting Catholicism as a requirement in the Code of Ethics and then claiming that you are not trying to “religionize” the profession.
The second claim I wanted to address is your statement about the American Legal System. Specifically, that you think a Rawlsian-based understanding of social justice is intrinsic to the American Legal System. I think such a view is a superficial generalization that hides the radically transformative nature of social justice on America’s legal system. The details of the matter easily contradict the statement.
As seen from the point of view of people living through the 20th century, the account is much different. They did not see it as intrinsic to the American Legal System, but as a means of changing its very nature.
By the beginning of the 20th century, social justice was typically associated with socialism. This explains the titled of the 1914 book, Social Justice Without Socialism. In American society with a strong tradition of individualism and the protection of property rights, social justice represented a contrast. In Intellectuals and Society, Thomas Sowell addresses the issue as it played itself out in the Supreme Court with Justice Brandeis. He wrote:
“Brandeis also invoked ‘social justice,’ without definition, as Pound had done before him and as innumerable others would do after him. He also justified the kind of law he wanted as one which, as he illustrated with an example from Montenegro, ‘expressed the will of the people’—though, in the American system of government, the will of the people is expressed through elected officials, rather than through unelected judges. This is so obvious that it is hard to see why the will of the people is invoked at all, except as rhetorical window dressing for judicial coups” (2012, Intellectuals and Society (Kindle Locations 4225-4230)(emphasis added).
It was during this era, the Progressive Era, that attacks on the U.S. Constitution became the bedrock foundation of a large social movement. As the scholars Pestritto and Atto have written:
“The Progressive Era was the first major period in American political development to feature, as a primary characteristic, the open and direct criticism of the Constitution. . . . the Progressive Era was unique in that such criticism formed the backbone of the entire movement.” Ronald J. Pestritto. American Progressivism: A Reader (Kindle Locations 105-106).
As these authors, note, the Progressives sought a radical transformation in the relationship between the government and its people on the basis of social justice, and the U.S. Constitution stood in its way:
“Progressives had in mind a variety of legislative programs aimed at regulating significant portions of the American economy and society and at redistributing private property in the name of social justice. The Constitution, if interpreted and applied faithfully, stood in the way of this agenda.” (Ronald J. Pestritto. American Progressivism: A Reader (Kindle Locations 99-100). Kindle Edition.).
The transformation of our legal system during the Progressive Era is addressed by the renowned legal scholar from the University of Chicago, Richard Epstein in his book, How Progressives Rewrote the Constitution (2006). There he wrote that the Progressives were trying to justify their views by finding legal theories for the interpretation of the Constitution. He wrote:
“The Progressive program was deeply dismissive of the ‘individualist’ ethic that Progressives believed shaped traditional social attitudes toward the transformation of social life. In consequence, they thought that it was necessary to undermine in two distinct areas traditional legal conceptions rooted in that bygone ethic” (pp. 7-8).
He continues, noting that Progressives:
“thought that ever greater inequalities of wealth justified overriding constitutionally protected rights of liberty, property, and contract” (p. 8) .
I think no better symbolism conveys the sharp contrast between justice as traditionally conceived in the American legal system and the modern Progressives’ social justice than the statue of Lady Justice. Lady Justice is typically shown with a scale for measuring the two sides of an issue fairly, a sword representing the power of reason, and a blindfold indicating that neither party could expect special consideration. The Progressives explicitly sought a contrasting view of justice. These are the words of Hebert Croly, a leading intellectual of the Progressive Era:
“In the past, common-law justice has been appropriately symbolized as a statuesque lady with a bandage over her eyes and a scale in her fair hands. The figurative representation of social justice would be a different kind of woman equipped with a different collection of instruments. Instead of having her eyes blindfolded, she would wear perched upon her nose a most searching and forbidding pair of spectacles, one which combined the vision of a microscope, a telescope, and a photographic camera. Instead of holding scales in her hand, she might perhaps be figured as possessing a much more homely and serviceable set of tools. She would have a hoe with which to cultivate the social garden, a watering-pot with which to refresh it, a barometer with which to measure the pressure of the social air, and the indispensable typewriter and filing cabinet with which to record the behavior of society.… [H] aving within her the heart of a mother and the passion for taking sides, she has disliked the inhuman and mechanical task of holding a balance between verbal weights and measures” (quoted in Goldberg, J. 2012. The Tyranny of Cliches: How Liberals Cheat in the War of Ideas (pp. 160-61).
That is how sharply the idea of social justice contrasts with our traditional notions of justice. Rather than being blind, social justice is about picking favorites and burdening the disfavored with satisfying their needs.
Sincerely,
Alex
Comments:
add comment
