The rise of right-wing authoritarian populism has triggered an intellectual tsunami of works attempting to understand why liberal democracy is failing in the 21st century. All of these accounts, however, rest on the premise that liberal democracy itself must be preserved. Yet liberal theorists have never reached anything resembling a consensus on one of the fundamental reasons behind the appeal of liberal democracy: justice. Most of us have an idea of what we mean by “justice”, usually one that is grounded in the idea of fairness or the rule of law. But as I will argue below, using justice as a synonym for other distinct ideals, or mechanisms to achieve those ideals, leaves us intellectually shorthanded.
To understand why we need to separate the ideas of fairness, rule of law, and justice let’s describe four related societies:
Society 1: Imagine a modern, constitutional state where slavery is legally permitted, such as the US before 1863. Although slaves do not count as people but as property, and lack the basic political rights that are afforded to free men, they are subject to the law rather than the whims of their masters. There are laws, for example, that prohibit a master from killing his slave, or from subjecting them to particularly cruel punishment. These laws are known to both slaves and masters and they are compelled to abide by them. The laws are enforced by the courts without discretion: a master who kills a slave finds it impossible to bribe a court to let him go unpunished. Clearly this state is not fair since a segment of the population lives under different rules than the other. It is also not just, given that slaves will not have the same outcomes in life than free men. But it is clear that there is, at least, the rule of law and that both slaves and masters are subject to it.
Society 2: Image now, a corrupt third-world nation. It is a former slave state that won its independence but fell under kleptocratic authoritarian rule in the decades following and only recently established (a very weak) democracy. It has modelled its constitution and laws by those of other, liberal states and has prohibited slavery as well as established punishments for those who violate the law. However, given the highly corrupt nature of the country’s institutions, laws are enforced selectively by rogue judges. As such, slavery is notoriously prevalent despite being technically illegal. The democratic government is legitimately concerned about the issue and has done all it can to bring its legal frameworks up to international standards but the state’s resource constraints means it cannot adequately enforce them. This society is clearly fair in the sense that its laws allow all people the same democratic rights. But there is no rule of law to uphold those rights. Consequently, the outcome is unjust.
Society 3. Finally, imagine, that an enlightened government has finally outlawed slavery and has afforded all former slaves the same rights as free men. Given that the country already had the rule of law well established, it has been relatively easy for institutions to enforce this new state of equality. Former slaves have access to education, health, can run for office, and can pretty much participate fully in political life. However, they remain marginalized given that it has been impossible to catch up to the rest of society in the century or so since emancipation. Former slaves live in more deprived neighbourhoods, go to worse schools, have poorer health, and punch below their weight in business and in politics. Studies show that this is the case even when controlling for other factors which suggest that these inequalities are structural, even if the institutional factors that created them are now gone. Overall this society is fair given that former slaves are not denied any rights or opportunities and the rule of law is well in place, but it is not a just state given that outcomes fall below what is expected.
Society 4: What if the state in society 3 decided that providing just outcomes was its priority rather than simply institutional fairness and rule of law? It would certainly have to compromise a bit on fairness. For example, it would establish policies of affirmative action to help former slaves get into university, or have legislative quotas so that the number of former slaves in Congress was proportional to their share of the population. This would negatively affect those who weren’t former slaves and otherwise equally or even more qualified for those same positions. In short, the playing field would have to be a bit unequal to give former slaves the necessary push so that they could achieve something approximating equality with the rest. Although there are complaints from people who weren’t former slaves, they are reminded that their position in society is due in no small way to the fact that their ancestors profited at the slaves’ expense. This state might not be entirely fair, but thanks to the rule of law upholding these policies, a more just society gradually emerges in the longer run.
Justice as an outcome
There is no such thing as a just institution, there are only just outcomes. And fairness does not guarantee just outcomes; in fact, sometimes we need a bit of unfairness to produce them. This is the fundamental problem with the Rawlsian view of justice that has dominated Western liberal thought in the last half-century, mainly in that it has been far too preoccupied in the design of the system rather than in imagining what kind of society we want. For example, Rawls’ most famous thought experiment, the ‘Veil of Ignorance’ sees us imagining a just society based on a hypothetical original position outside of it and asking if we would want to be in that society if we did not know who we would be beforehand. This is fine for understanding why we’d rather live in Norway than in Britain: we’d rather be the poorest person in social democratic, egalitarian Norway than the poorest person in laissez-faire, unequal Britain even if we would rather be the richest person in Britain than the richest person in Norway (Rawls possibly understood loss aversion before psychologists did).
However, this says nothing of how to achieve the actual society we would want, only that we would all share a similar principle of justice while in the original position. For example, a slave-owner in the original position would not know if he would end up being a slave-owner or a slave in a society with slavery and would have to rationally accept that slavery is unjust. This could help us reason our way into accepting that Society 1 is unjust, but would it lead to Society 4 if the slave-owner believed in free will and that everyone could improve their lot in life through effort and hard work? Not likely. It would probably lead to Society 3. For someone in the original position to accept that Society 4 is the only just society, one must make the assumption that the person holds deterministic views of individual human outcomes. But many don’t. Our view of what a just society is, therefore, cannot be determined merely on the basis of principles and thought experiments. Little surprise that a country that has individualism and free will as part of its national psyche, like the US (particularly among conservatives), is happy to assume that Society 3 is good enough.
Non-Western thinkers like Amartya Sen have been more adept at criticizing the Rawlsian view of justice and framing it as an outcome rather than as a design. In The Idea of Justice, Sen brings up the Hindu concepts of niti and nyata, the former which refers to the institutional and legal aspects of justice, whereas the latter refers to their realization in society. Sen is also a pragmatist, in the sense that he sees no need at all for an idealized state of justice the way Rawls does but rather, that we are perfectly capable of recognizing most injustices and that we have no excuse for resolving them if we have the means to do so. I can draw parallels to my own country, Mexico, in its endless quest to design for the right institutions to implement the rule of law, only for the rule of law never to emerge (the problem that Society 2 faces above) because the outcomes have always been justified on the basis of getting the niti right, not the nyata.
The good society
The point of this piece is to make it clear that fairness, rule of law, and justice are not interchangeable concepts. Each one has its place in the good society that all human beings desire to live in. And even if we can agree on the principles that govern this good society, we don’t always agree what this good society will look like. But if you agree that justice is an outcome, or better yet as a multitude of outcomes, then it’s impossible to ignore the very real desire for social justice to have an indelible place in this good society. And if this means the liberal aspects of democracy need to be superseded by a more social vision of democracy, so be it.