Justice as outcomes

For the good society to be realized, we need to forget about justice as an institutional design

 

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. Continue reading