This essay is adapted from Tristan Rogers’ journal article, “Justice as Lawfulness” (forthcoming in the Journal of the American Philosophical Association).
In a memorable scene from the history of philosophy, Socrates, awaiting execution, is visited by his wealthy friend, Crito, who offers to help him escape from prison and flee into exile. Despite the unjust charges against him, and the relative ease with which he could escape, Socrates refuses Crito’s offer, arguing that it is worse to commit injustice by violating the law than to suffer injustice oneself. It is better to maintain one’s own virtue, even if it means accepting an unjust outcome. Being a just person matters more than injustice generated by institutions. Indeed, for Socrates, it matters more than life itself.
Socrates’ uncompromising claim about virtue and justice has gone unheeded in our times. Instead, social justice dominates public discussion. As I understand it, social justice has at least three distinguishing features. First, social justice focuses primarily on the evaluation of institutions, not individual actions. Second, social justice is concerned with outcomes, rather than procedures. Third, the justice in social justice refers to fairness understood as equality—usually social or economic—not adherence to existing law. Taken together, then, social justice is a matter of making institutions fair, by righting the wrongs of social and economic inequalities.
Whether intentionally or not, social justice tends to destroy what in earlier ages was called natural justice. Natural justice refers to established institutional (legal) and interpersonal (social) norms for resolving conflict and maintaining order. Such is the shared inheritance of the system of English Common Law on which many beneficial legal systems rest. While social justice strives for ideally just institutions, natural justice is content with the justice that obtains approximately from one person in relation to another within a system that prevents mutual injury and induces cooperation. The rules of such a game matter more than who wins (or loses), which is why, all things considered, a just procedure is preferable to a just outcome. Lastly, what makes individual action just is adherence to law, to the rules of the game, not the fairness of an imagined alternative game, which realizes a more equal outcome.
Natural justice has roots in ancient Greek ethics, particularly in Stoicism. Despite their influence on the natural law tradition, Stoics did not regard the justice of institutions as a centrally important ethical matter. On the contrary, the virtuous person was expected to resist the temptation of allowing institutional injustices to distract from the much more urgent matter of developing one’s character. Well-ordered lives come before the well-ordered society. Sometimes this invited the charge of quietism, especially when some Stoic philosophers, like the Roman Emperor, Marcus Aurelius, had the authority (though perhaps not the ability) to dismantle very great institutional injustices, such as slavery. If you have the correct theory of justice and the power to implement it—say the critics—then you must do so, no matter the cost.
Contemporary philosophers have mostly ignored the ancient emphasis on virtue and justice. Instead, they have followed John Rawls in putting forward theories of justice for what Rawls called “the basic structure of society,” that is, those institutions that assign basic rights and duties in a society and have a profound effect on our initial life chances. Rawls’s comprehensive and definitive treatment of the justice of institutions, A Theory of Justice (1971), lit a spark, generating several decades of scholarly reflections on justice that show no signs of stopping. After the social changes brought about by the 1960s, it is no accident that most of this scholarship has been egalitarian and social justice-oriented. Indeed, for Rawls, because natural and social advantages in a society were arbitrary from a moral point of view, inequalities stemming from them must be justified. Thus, equality became the moral baseline. What remained to discuss was not whether inequalities were unjust, but which inequalities mattered and what should be done about them. “Why equality?” became, as Amartya Sen puts it, “Equality of what?”
One unfortunate side effect of the focus on equality is that the scope of justice expanded greatly to encompass ever more areas of social life, pushing the boundaries of justice to the frontiers. After all, the realm of things that might be considered unfair because unequal is potentially unlimited. For instance, political philosophers like Philippe Van Parijs have worried about such trivial matters as whether surfers ought to be subsidized for what Ronald Dworkin calls expensive tastes, which they have blamelessly developed, yet unfairly bear the burden of financing. Or there is the issue raised by G. A. Cohen of whether one can support egalitarian policies while remaining wealthy oneself (e.g. as a Fellow of All Souls College, Oxford). And, most egregiously, Adam Swift asks: Can we be partial to our own children and remain faithful to the cause of social justice? Whatever its intellectual value, all of this talk renders justice bloated and abstract, too far removed from the moral concerns of ordinary people, and conceptually stretched beyond recognition. Sometime over the last few decades, justice, which Rawls describes as “the first virtue of social institutions,” became the only virtue of institutions.
Social justice’s distance from the concerns of ordinary people also stems from its institutional focus. Famously, Rawls, for instance, invites his readers to abstract from the particulars of their own lives (e.g. talents, class, family, race, gender, etc.) to enter a hypothetical point of view—the original position—and consider justice impartially from behind this “veil of ignorance.” But, however agreeable to an impartial spectator, justice is a virtue rooted in the lives of actual people, who must act on reasons they can integrate into a life that is good for themselves and their communities, regardless of what ideal justice may require. While a great many things appear unfair from behind the veil of ignorance, as Aristotle understood, fairness is a part of justice, not the whole of it. Justice is one virtue: it need not encompass every virtue.
What is the alternative to social justice? I propose we revive natural justice, resurrecting the ancient wisdom about justice and its deep connection with the good life. Justice, in this sense, is primarily a character virtue, which one can begin to develop by following procedures and norms generally accepted by one’s community. The idea is not to blindly follow existing procedures and norms, but to do so virtuously, with knowledge, informed by emotion, and with a view to what is truly good for oneself and others. In this way, the virtuous person is embedded in a social structure and follows the norms of that social structure as a starting point for doing what is just. But what is just, all things considered, rests with the judgment of the virtuous person, as an ideal toward which we aspire.
The ancient Greeks called the norms of the social structure nomoi, and they were generally understood to be laws in the legal and social sense. Hence, for Aristotle, the person who is law-abiding (nomimos) not only follows the formal legal norms of her community, but also the informal social norms. And while the nomoi, which are partly conventional (nomos), are sometimes contrasted with natural laws (physis), they are grounded in human nature.
The critical role of the nomoi is that they establish a system of mutual expectations. A thoroughly lawless society (Durkheim’s anomie) is one in which persons act solely based on their own judgment without regard to their relationships within the broader community. But by observing socially-sanctioned roles, offices, and relationships—even if not perfectly just—we can cooperate peacefully and beneficially, without fear of defection or betrayal. Law is the institutionalization of trust.
What about unjust laws? How does natural justice account for unjust nomoi? For example, the nomoi of the antebellum South marginalized and brutalized the slave population. And there are plenty of other cases in which institutions fall short in less extraordinary, but altogether unsurprising, ways. Isn’t natural justice essentially a conservative or reactionary idea? For natural justice might seem unduly prejudiced toward the status quo and hostile to new proposals for beneficial social change. Indeed, one of the attractions of social justice is that it begins from the premise that existing institutions are very likely unjust (because unfair and unequal) and therefore must be made just through social activism or in the extreme, political revolution.
An important feature of the nomoi is that they are bounded in time and place. They are the path-dependent result of successful responses to social problems that existed in the past, to which their mere existence testifies. The existing nomoi of a community are successful because they have gone through a process of social evolution. They are justified not because they comport with ideal justice, but because they are our best solutions to our worst problems. And, since one of our problems is the imperfectability of human beings, we must continually fine-tune our institutions to make up for our own fallibility.
The necessity of new proposals for social change is grounded in the fact that over time the nomoi of a society inevitably ossify. Part of the reason for that ossification is natural decay. But it is also the result of human iniquity and our inability to keep pace with the dynamics of a complex world. It is, therefore, the responsibility of the just person not only to abide by the existing nomoi, but to reform the nomoi when necessary and possible, so that the political tradition can be revived and perpetuated. In the words of Edmund Burke, “[a] state without the means of some change is without the means of its conservation.” Correspondingly, a state without just persons is without the means of its change, and likely on its way to dissolution.
Now, according to natural justice, change—at least salutary change—comes about because of the just person, who looks to change the nomoi, not by reference to ideal justice, but by reforming the existing nomoi in a way that improves upon the existing political tradition. This change in individual judgment eventually becomes widespread enough to change the nomoi, and ultimately, though perhaps slowly and uncertainly, moves the society closer to something approximating ideal justice. For instance, refusing people opportunities and services based on an immutable characteristic was once an accepted and widely practiced social norm in the United States. But, over time, individual judgments about the evils of this practice consolidated to make this kind of discrimination one of the worst transgressions of a social norm one can commit.
The moral judgment of the just person alerts us to ways in which the nomoi are deficient, and therefore fall short of a standard of perfect justice that is imperfectly embedded in the institutions of a political tradition. But attempts to transform existing institutions to satisfy an ideal of justice can be quixotic or even dangerous if they are not grounded in the nomoi. We must balance contested ideals of justice with the very real risks of social change. This is one reason why just persons must argue for their reform proposals in public, and, if they are to be persuasive, ground their proposals in the ideals of a shared political tradition. Like Martin Luther King’s pronouncements on the evils of segregation—pronouncements which were deeply grounded in the highest ideals of the American political (and religious) tradition—such proposals have the power to reform the nomoi over time, if only they are heard and considered.
The process of balancing justice with the vagaries of political and social change requires care and above all, practical wisdom (The ancient Greek’s phronesis), which determines both what the good is and how to achieve it. The distinguishing feature of natural justice is that it places the emphasis on reform from an initial place of conformity, rather than on the transformational change of social justice. On the one hand, insisting that institutions conform to an ideal of justice without paying attention to existing nomoi undermines the very institutions that make reform possible. On the other hand, maintaining manifestly unjust institutions for the sake of short-term stability can undermine the long-term legitimacy of existing institutions and fail to respond to the dynamic nature of a complex world. While there is no perfect balance between stability and change, and there are no guarantees that the just person will be successful in achieving a recognizably just (much less liberal) society, natural justice nevertheless locates justice in the actions of persons, rather than in the design of institutions.
This is why Socrates accepts his punishment and refuses to flee in the memorable scene from Plato’s Crito. Socrates accepts, as a matter of justice, the nomoi of his political tradition because they answer to an implicit standard of justice that he recognizes as a virtuous person. To flee punishment, even unjustly deserved, would be an act of injustice, and therefore is unacceptable to a just Socrates. In the aftermath of social justice, we should follow Socrates in seeking firm ground on the stable foundation of natural justice.