[Note for bibliographic reference: Melberg, Hans O. (1997), Anti-Justice: Cold, No
exclusive priority, Self-defeating http://www.oocities.org/hmelberg/papers/970616.htm]
Anti-Justice
Cold, No exclusive priority, Self-defeating
by Hans O. Melberg
Introduction
Who can be against justice? People disagree on the precise definition of justice and its
implications, but it seems that few are willing to argue that justice should be sacrificed
in order to achieve something else. This is unfortunate. I shall give three reasons.
First, to insist on justice in every situation leads to a cold and merciless society.
Second, justice is only one of many worthy criteria for a good society. Third, the attempt
to partially implement the ideals of justice in a world of inherent limitations (in terms
of resources and human weaknesses) may in fact lead to more overall injustice.
A cold society
The first argument - that the ideals of justice produce a cold and merciless society - is
rather obvious, but nevertheless ignored. For example, none of the authors referred to in
my article Three Causes of Injustice (published in Norwegian in Lov og Rett,
no. 8, 1996) discussed this issue. One author, however, who explicitly recognises this
problem, is the German theologian Dieter Bonhoeffer (who was executed by the Nazis in
1945). Among his collected works there is a short essay on justice, and in this essay he
argues that a society based solely on justice has no room for mercy, or even love.
The argument is as simple as it is obvious. For example, if you define justice as equal
treatment - such as the same punishment for the same crime - then it would be unjust to
allowed the victim to have mercy upon the perpetrator of a crime. It would be unjust
because it would lead to unequal treatment of people who have committed the same crime. In
short, mercy and justice conflict, and to insist on justice only implies a society with
little room for mercy. The argument about love is a bit less obvious: Define love as
giving somebody more than they deserve. (Although not a definite definition, this at least
captures one aspect of the concept of love.) That some people get more than they deserve,
while others get less that they deserve, seems unjust. Ergo, there is no room for this
aspect of love (and many other emotions) in a totally just society. In short, an excessive
emphasis on justice creates a cold society - a society with no mercy and less love.
Alternatives to justice
John Rawls has argued that justice is the primary criterion by which we should judge the
basic structure of societies. The institutional structure of a society should - he argues
- be constructed so as to maximize justice (which he defines as making the word off as
best off as possible). I disagree. There are many alternative and equally valuable ideals
in addition to justice. Some obvious candidates are freedom, peace, material and physical
well being (current and future). I think a good society should balance between
maximization of many ideals, not only justice.
Here are some examples: In the Balkans we might have to face the unpleasant choice
between peace and justice (punishing all the war criminals, even the top leaders). In
Norway people of foreign origins are not allowed to donate blood (i.e. discrimination)
since this has a higher probability of leading to unknown diseases - in other words,
justice is sacrificed on the altar of maximizing good health. The conflicts between
justice and efficiency (material well being) are well known. To take a simple example -
the laws of justice may dictate large compensations to those with low abilities, but this
makes it profitable to work less hard (given informational asymmetry i.e. that we cannot
distinguish between those who really have low abilities and those that only fake for that
sake of a quiet life). In short, justice is only one ideal and it is wrong to focus
exclusively on this ideal when we judge societies or individual actions. (Incidentally,
this implies that I disagree with Will Kymlicka who argues that most (or all?) ideals can
be reduced to one deep ideal. This deep ideal is justice, and it is defined as treating
everybody as equals. See the book Contemporary Political Philosophy, for example p.
4.)
The self-defeating nature of justice
My last argument against justice, is build on its self-defeating effects. Maybe it is
misleading to say that this is an argument against justice as an ideal. It is more correct
to say that I am against using the ideals of justice as a guide for isolated actions in
every field of society since this may lead to great injustice from a larger point of view.
In the terminology of Jon Elster, local justice may lead to global injustice. This sounds
paradoxical and requires some explanation.
The general argument is build on the theory of the second best, first developed
formally by Lipsey and Lancaster in 1956 (See their article in the Review of Economic
Studies). To understand the theory, consider this example: In many countries there is
a tendency to for many laws to be very detailed since the law-makers want the rules to be
just (tax laws and laws about state benefits are two good examples). However, this ignores
the fact that the very complexities of the law also creates injustice since only those
with the resources to be well informed about the laws are able to make good use of it.
Hence, the intention to create just laws lead to detailed laws which in turn made the
system of laws so complex that the total effect is more injustice since some people lack
the ability to exploit their rights within a complex system. This illustrates how isolated
or narrow emphasis on justice may in fact lead to more injustice.
The example is not isolated. Indeed, the whole legal system is a demonstration of how
local justice may create global injustice. The problem is this: We have a limited amount
of resources. Given this inherent limitation, there is a trade-off between quality and
quantity in the legal system. However, this trade-off is not faced explicitly in many
countries. For example, in order to ensure maximum justice, the legal-system works slow
and is expensive - there are many rights to appeal, the defendant is given a well educated
lawyer, and there are strict procedural rules. This ensures justice for the people who are
actually brought into contact with the legal system. However, would it not be possible to
increase total justice if we reduced the quality in order to free resources which could be
used to increase the quantity? By quantity I here mean the number of people who are given
the chance to use the legal system. Here are some controversial suggestions as to how this
could be done: Lower courts in which the participants were forbidden to be represented by
lawyers; Lowering the demands to become a lawyer; Giving other people than lawyers the
right to represent parties in court; Speed up the process by not considering every piece
of evidence so closely, or - maybe more appealing - to change the somewhat arcane
procedural rules.
Before I am engaged in a controversial discussion about these suggestions, I would
remind the reader that I am only exploring some ideas here. The general point I want to
emphasise is that the application of justice to one sphere may in fact decrease the
total-amount of justice if we account for all the global effects: To examine every piece
of evidence closely appears perfectly just - but it ignores that in a world of limited
time and resources such a rule also implies that fewer people are given the chance to
bring forth their case i.e. the rule creates an injustice.
Conclusion
It would be exaggerated to say that I am against justice. I am - however - against the
idea that justice is the only ideal worth pursuing. In this sense, my first and second
critique of justice is really one and the same: Mercy and love are alternatives to justice
which I think also should be given some emphasis in a good society. The third critique is
conceptually different: that an enthusiastic emphasis on justice in one sphere may
actually decrease the overall sum of justice.
In short, the overall lesson is this: The next time you hear that we should do
something or support some initiative because it is just, consider first whether the
measure really is worth the sacrifice in terms of reduced fulfilment of the other ideals
you hold (freedom, efficiency). Consider next whether it really improves the overall sum
of justice. In this way you may be able to distinguish between good and bad arguments
based on justice.
[Note for bibliographic reference: Melberg, Hans O. (1997), Anti-Justice: Cold, No
exclusive priority, Self-defeating http://www.oocities.org/hmelberg/papers/970616.htm]