We in the United States are experiencing a surge in demands for justice, mostly prompted by the videotaped murder of George Floyd by a Minneapolis police officer last May. The outpouring of rage and grief by both African Americans and white sympathizers was immediate and nation-wide; even world-wide. While there is much to be said about such a response (and indeed about the varying responses from our elected officials such as the President), I am interested here rather in the basic concept behind the outrage. In a word, I am interested in what we understand as justice, and where the concept derives from. It turns out that major thinkers, including some of the greatest minds in the western tradition, have been pondering this question for millennia.
We can begin, as usual, with the ancient Greeks. Plato in The Republic and Aristotle in his Nicomachean Ethicsboth discussed the problem at some length. Without getting too deeply into the weeds, we can say briefly that Plato has Socrates argue that the essence of justice is harmony—harmony between the parts of a human, and a corresponding harmony between the parts of a city-state. Socrates makes the argument, self-interested to be sure, that a city-state will be well-run if a philosopher (or philosopher-king) makes the important decisions. Why? Because a philosopher is the only one disinterested enough to understand, and to aim, like an expert navigator guiding a ship, toward the good. Of course, the question immediately arises, what is the good? But Plato seems to imply that it is both an unknowable and self-evident and formless ideal.
Other thinkers, like John Stuart Mill, have not been so content with this kind of vague ideal. Mill argued for something we all might ascribe to: that what is just is what has the best consequences for the most people. Simple and solid. For John Locke, however, justice in society is what accords with “natural law”—that is, giving to groups or individuals what they deserve. Then there are theories that align justice with the idea of fairness, basically an impartial distribution of goods, with no concern for deserts. But on what basis is this to be decided? John Rawls proposes two basic measures for just distribution: distribution based on, say, hard work; and distribution based on simple humanity, which everyone has. Karl Marx was an adherent of this latter idea: that is, goods should be distributed in a just society according to the principle, “from each according to his ability, to each according to his need,” regardless of what is earned, or what one’s social status might be. But property rights theorists strongly object to this redistributive justice idea. Robert Nozick, for example, considers that all attempts to redistribute goods according to some ideal, without the consent of their owners, are theft, and that even taxation (to achieve some kind of fair redistribution) is a form of theft.
There are more theories, to be sure, but the basic question remains: where do these ideas of justice, of fairness, of equality before the law, come from? Many people would argue that justice comes from, and is only achievable by the Divine: Justice is mine, saith the Lord; except that the actual words are “Vengeance is mine” (Romans 12: 17-19, from Deuteronomy 32:35). It is notable that here, justice seems to be equated with the primal concept of vengeance, or punishment. This is all well and good, if one is content with the idea that justice comes from God (the word "just" occurs eighty-four times in the Bible, and "justice" occurs twenty times), and that’s that. But even Plato in Euthyphro elucidated the dilemma with this question: does God command the morally good because it is inherently good, or do we consider it good because it’s commanded by God? The implication is that if it’s commanded by God, we can’t really understand the good, or justice; whereas, if it’s because justice is inherently good, then it exists independently of God and therefore can and should be subject to human judgment.
But there is one other aspect of vengeance or justice belonging only to God that bears some scrutiny. Giving the right to exact vengeance only to God is a kind of sign of the advance into complex society, a way of curbing the impulses of each human trying to take vengeance into his or her own hands. It is easy to see that this kind of primal, individual vengeance, in larger societies, can lead to escalating and uncontrollable cycles of violence—one killing, say, leading to another in retaliation, which leads to another vengeance killing, ad infinitum. So it is that the prerogative of vengeance or justice becomes limited—to the powerful god, leader, king, lord of the manor, and finally to the state. Justice becomes, to a degree at least, limited to certain entities, and thereby becomes more or less impersonal, or objective. An injured party is no longer permitted to seize someone who has committed a crime against him and punish or kill that person outright. In complex societies, the state reserves for itself the exclusive right to punish, to exact vengeance, to kill; and its offices for doing so are given the name and attributes of Justice—usually, in name if not in practice, blind or equal justice under the law—depending always on whatever set of laws pertain in a given society.
Before getting to legal justice and its implementation, however, perhaps we should look further into the idea that justice is “natural,” that is, stemming from nature. And here, there have been some recent studies that are of great interest—though not so flattering, perhaps, to the human need to feel unique. Several studies have been done in recent years to investigate whether nonhuman primates, in particular, exhibit a sense of “fairness” similar to that of humans. Franz DeWaal has experimented and written extensively about this, and his studies, documented in, among other places, his 2013 book, The Bonobo and the Atheist: In Search of Humanism Among the Primates, (Norton: 2013), reveal what he maintains is the evolution of fairness (the rudimentary germ of justice) among primates. DeWaal and his associates engaged capuchin monkeys in a variation of what, for humans, is called the Ultimatum Game—where one player, the proposer, has a sum of money to split, either fairly or unfairly, between himself and the other player, the responder. When humans play the game, they almost universally favor splitting the money evenly; brain scans of those facing the unfair distribution of rewards “reveal negative emotions, such as scorn or anger,” and often a refusal to accept an unfair split at all. With monkeys the reaction to unfair distribution is strikingly similar. If two monkeys, unrelated but cooperating partners, are given unequal rewards for a task—one receives highly-prized grapes; the other receives not-so-highly-prized cucumber slices—the deprived monkey (the one given the cucumber) simply refuses to play, and often destroys the game. DeWaal comments:
Refusing perfectly fine food because someone else is better off resembles human performance in the Ultimatum Game. Economists call this response “irrational,” given that something is always better than nothing…If these responses are irrational, however, it is an irrationality that transcends species… Fairness and justice are therefore best looked at as ancient capacities. They derive from the need to preserve harmony in the face of resource competition. We share both stages of fairness with the apes, and the first stage with monkeys and dogs (DeWaal, The Bonobo and the Atheist, 231-34).
In short, Franz DeWaal and many others now have found that, especially in ‘higher-order’ species that cooperate in hunting, fairness in reward distribution outweighs what economists would judge to be rational (is it not better to accept some money or food as opposed to none at all?). This is not only common but appears necessary, probably because it ensures sustained cooperation between rivals in a life-giving pursuit. Since humans, too, are pre-eminently a cooperating species (having evolved in hunter-gatherer groups), the sense of fairness and justice that has evolved goes very deep, and runs along a similar line of emotional rather than what we call rational judgment.
What we can conclude, then, is that an evolved sense of fairness predates humans in evolution, and informs human notions of what is just. Justice means that people with whom we have some relation (e.g., all members of our family, tribe, community, nation, continent, and ultimately, of the species homo sapiens), are felt by most of us viscerally (if not intellectually) to deserve fair treatment, or justice. Without fair treatment, whether it is from the economic system or the justice system, we can expect either refusal to play or refusal to cooperate. And we can see that this refusal comes about when the perceived unfairness or injustice passes a certain threshold. Most humans, that is, can tolerate some injustice as “just the way it is:” the system is stacked, and always has been, against the poor, the marginalized, the foreigner, the differently colored or gendered or endowed. But when the injustice gets beyond a certain point, then those at the receiving end of such injustice either refuse to play the game (rejecting the rules) or seek to overturn or destroy the game altogether. You then have peasants’ revolts, or the French Revolution, or urban riots in the streets, or whatever form the refusal takes.
And this is where the notion of the reigning power having the exclusive right to mete out vengeance or justice comes in. For when many people begin to see that the system is rigged—usually in favor of those with some inside access to information, or to the reigning monarch, or to the officials in charge of overseeing the fair distribution of goods, or the fair enforcing of justice—then that system begins to be seen as corrupt or irrelevant or of no value except to those insiders whose goods or property are being protected. Indeed, the late Howard Zinn maintained that the highest court in the U.S. justice system was essentially useless to the average American. In a 2005 essay, he maintained that the only way justice has ever been implemented for the mass of people without power, was when they took to the streets and demanded change. Then, and only then, would the Supreme arbiters of Justice, regardless of affiliation, move to align themselves with the significant shift in opinion. Otherwise, they would simply maintain the status quo best suited to the powerful with whom they identify (Howard Zinn, “Don’t Despair About the Supreme Court” The Progressive, Oct. 21, 2005, www.progressive.org).
Where does that leave us, then, regarding the concept of justice and its utility? We can, I think, certainly agree that in modern complex societies, it won’t do to have individuals taking vengeance for each wrong committed against them (as we see often in gangster movies, or dramas about rogue cops who implement rough justice on their own): there would be slaughter in the streets on a regular basis. Still, we must admit that we usually cheer when the “bad guys” can no longer hide behind the law, and get their comeuppance directly, though we also know this won’t work in actual practice. We know this because of what has actually happened in the streets of America, both historically and recently—where vigilante groups have either threatened or killed those they deem “outlaws” or violators of what they deem “good” social behavior. We have also seen it too frequently on the part of the police when they gun down or choke or otherwise inflict mortal injury on people they deem either dangerous, or just insufficiently responsive to their commands. Too often, these law officers are excused from liability for their murders (as has just now happened in the Breonna Taylor case). Too often, also, public servants in high office judge it a good thing that this punishment is meted out—as for example, when the President of the United States, the chief law enforcement official in the nation, actually said on Fox News that the killing of Michael Reinoehl by U.S. Marshals sent to arrest him (Reinoehl was accused of killing Jay Danielson in Portland), was “the way it has to be. There has to be retribution when you have a crime like this (The Oregonian, Sept. 13, 2020).” This is an astonishing statement. For what it appears to justify is extra-judicial murder—with the officers acting as judge, jury, and executioners. No trial. No legal rights. No presumption of innocence. No right to witnesses or examination of proof or the right to face accusers in a court of law, all basic rights of Americans enshrined in the Constitution and the Bill of Rights. Such rights and protections have long been established in most states as fair exchange by citizens for giving up personal vengeance and conferring it on the state. They mean that neither the state nor any of its rulers any longer has the right to seize people and execute them without at least a show of these legal procedures—all of which together symbolize and represent Justice. For a chief law enforcement officer to express approval of officers killing a suspect without any procedures at all—that takes us backwards several degrees to kings and dictators taking the law into their own hands, and simply killing their enemies. Which is little better than mass vengeance killings. Too much of this kind of practice and a state is likely to lose all its legitimacy—which is to say all pretense of justice.
Thus, we see that defining justice is difficult enough when we are talking about legal or court-of-law justice. But when we are talking about implementing social justice, the difficulty is compounded. That is because, as was hinted at above, the just distribution of a society’s goods gets into very knotty problems. Who should get what from a just society’s production? Many people in our culture would argue that only people who work should get a fair portion of a society’s goods, and that the amount each gets for his toil must be determined by the marketplace. But that leads to the situation the United States is in currently. That is, people who do little that can be called work—at least traditional work—are receiving an overwhelming portion of the society’s goods, i.e. wealth, preeminently from their investments in the stock market. And a few at the top—Jeff Bezos, CEO of Amazon, or Mark Zuckerberg, CEO of Facebook, or other dot.com billionaires—earn more in an hour than average workers earn in a year—with the workers doing actual physical labor, while the dot-com-ers gather dividends from the automatic workings of the market. The statistics are forbidding: some 2,000 men of this kind have gathered to themselves more net worth than over 60% of the world’s population combined. This is inequality—which many would call ‘injustice’—of the most visible and insulting kind. And it raises the question about a society’s priorities; questions about what a society values, and on what basis does it reward its members.
These are all question of social justice—which many would deny even has legitimacy as a concept. But many others would maintain that these are the real questions that matter in any society. They lead to the root question about which is more important: property or people. And whether preserving and protecting property—regardless of how it has come to be owned (Balzac once observed that behind every great fortune lies a great crime)—is so much more important than preserving and protecting individual life, protecting the entire planet’s ability to support life. For that is the other aspect of justice that is looming over our world these days. Do those who earn billions have any obligation to not just contribute to the well-being of those who work for them and actually create their wealth, but to the rest of life, to the planet and its health? For the most part, especially in recent years, the answer to this question has been, a resounding NO. Such considerations are “externalities,” is the economists’ argument, and businesses have no obligation to take them into account, nor take responsibility for the damage they cause. And of course, the type case is multi-national oil companies and their responsibility (or not) for the alarming rise of carbon dioxide in the atmosphere, and hence global warming. Is it fair and just, that is, for companies and their leaders to make billions in profits from a product that is leading to the displacement and probable death of millions of human beings? The same question could be asked of countless corporations that produce plastics that are polluting the oceans and our cells; of farming giants whose production of meats leads to the pollution of vital water supplies; of giant farms whose use of pesticides leads to the demise of critical insects and pollinators; of manufacturers whose production and use of paper destroys virgin forests; and on and on. What is the responsibility of these critical parts of any society, and what is the responsibility of a society in general for the well-being of all of its members? Can it be that the most important job of any society is to simply protect the property if its wealthiest contributors, and let the health of overwhelming numbers of poorer people care for itself? Growing numbers of people think not. Many now think that a just society would and should make health care a universal right. Many others think that societies can be designed to put the well-being of all their members—not just the wealthy, and not just physical but mental and social well-being as well—at the forefront of their duties. Such a society would include, for example, care for family well-being by providing flexible work-time to allow mothers to spend more time with their growing children; worker cooperatives to give employees more control over their workplaces (including profit-sharing and company governance), giving greater meaning to their working lives; the obligation of all producers to take responsibility for what happens to their products when they are worn out and disposed of; all of which could help with the gross inequality and resulting mental and physical health problems increasingly plaguing modern capitalist societies like the United States (see Tabita Green, “What a Society Designed for Well-Being Looks Like,” 9/18/18, resilience.org). These and other changes are not that radical either; many Scandinavian nations already have many of these practices in place, and their so-called happiness and health and longevity indices far surpass that of the United States and other nations which leave all such allegedly ‘socialist’ considerations to the marketplace.
All this doesn’t even begin to broach the subject that is so noisy these days—the question of how to change the system that has left African Americans and Native Americans and people of color in general at the bottom of the social ladder for so long. It has been traditional to say that each of these groups has the same rights and advantages as the rest of American society, and only need to use their bootstraps to raise themselves to equality. But that rationale has all but collapsed with the rise of the Black Lives Matter movement, which makes it quite plain that the justice system in America, if it exists at all, is far from blind when it comes to skin color (the numbers of black and brown people in our prisons should be a national scandal—see Michelle Alexander’s The New Jim Crow for a searing account of this). For it is clear that this has never in all American history been the case, and, with so many murders of black men that the incontrovertible evidence of video has demonstrated in recent years, that it is perhaps less so now. Police are several times more likely to see people of color as a threat, and resort to their weapons to subdue them, than they are with white suspects—even those carrying automatic weapons, with evidence of their having used them. And when such cases get to the courts, the difference between what happens to those with ample money to hire expert lawyers, and those who must depend on public defenders, is a graphic and a visible blot on the entire system. Nor does the overt prejudice of many white judges help. All of this to say that, though our system claims that American justice is blind and we’re all equal before the law, the evidence proves the opposite: that justice American-style depends on who you are, what connections you have (when I was in college and working a summer job, I got vivid evidence of this: a bunch of us got drunk one night, and swam in the club swimming pool, throwing chairs in and generally creating mayhem, after which the police seized a few of us and were about to throw the book at us, until one of the guy’s parents, a local judge, intervened; we got off with nothing more than a mild warning, and a “boys will be boys” eye roll), and how much money you can afford for bail and/or lawyers.
What then are we to conclude? Does justice even exist here on earth? And even further, does the arc of the moral universe bend toward Justice, as Martin Luther King famously claimed? Or must we wait for the Last Judgment for everyone, including the evil-doers, to get their just deserts? Or for karma, as in Buddhism, which may take more than one lifetime to take effect, to work? Often enough, in our world, that seems to be the case. The real world, the samsaric world, is hopelessly corrupt. The good too often die young; evil-doers and those with no discernible morals or ethics, seem to thrive. We still maintain hope that they will get their comeuppance in this life; we identify with films and dramas in which poetic justice prevails and the good are rewarded, while the evil ones suffer as we believe they should. But does this truly ever happen?
It’s hard to provide a firm conclusion here, but we can say, I think, that true justice is rare, just as the truly just man is rare. And so we are left with the consolations of philosophy; or religion (in which justice will come in the afterlife); or karma, in which the effects of evil deeds are to be fulfilled several lifetimes from now, when rebirth as worms or rodents or other disagreeable characters fulfills the iron law of karmic retribution from which no one escapes. Until then, though, most of us will have to find some way to adapt: either by accepting the fact that justice is not for this world; or by working—generally regardless of any great expectation of success—to make the justice systems we have better, fairer, and more just. Or by working to slowly or rapidly overturn the entire system in an effort to begin anew. Something like that may be happening now, and for my part, I do not hope, but do wish fervently for its success. Whether that can happen in time to stave off several impending catastrophes is something else again; but do any of us, if we truly believe in justice for all, really have a choice?
Lawrence DiStasi
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