Imagine someone who stole a composition from its creator and claimed it as his own. Surely, the fame and fortune which may result from this theft could not be considered justly acquired. Imagine, again, someone who has been bound and gagged in a chair in his home and misses an important appointment as a result, the consequences of which are disastrous. The blame, punishment, or related adverse result our victim suffers if people do not believe his story cannot justly be considered his due. A mere case of intentionally tripping another where the result can be a broken watch or a broken head suffered by the victim further shows that where agency cannot be established—where harm or advantage befalls someone other than the person who caused the injury or benefit—we cannot justly assign responsibility for consequences. Nor do we praise a student who passes an examination by copying the answers from another's paper.
Take any political system in which it is impossible to determine who is responsible for the various events, situations, etc. that result from human action, one in which responsibility is misassigned or indeterminate because the laws and regulations which comprise the legal system of the political system render correct determination impossible—such a political system is in its most important respects unjust. While some elements of justice may be a de facto part of that society as an organized institution the society is unjust. In this paper I will show that ours is this kind of a society; i.e., I will show that the legal system we have, comprised of various laws (and regulations, backed by laws) make it impossible correctly to determine the responsibility for the consequences of the actions of citizens.
By examining any one of the examples listed earlier, it can be seen that the reason for the distortions in determining the responsibility for the events which ensued was that those who partook of the situation were either coerced or coercing others in some way—freedom of action was hampered. It is only if the coercion becomes evident, and the agent of the coercion is identified, that determination of responsibility can be made and the various situations can be treated justly. The thief gained fame and fortune by depriving the composer of his freedom to act (such as to sell or keep his composition). The bound and gagged victim was suffering consequences unduly when his failure to attend the meeting in question had adverse consequences for him (and others). The man who was tripped was deprived of his freedom to act as well, while the chap who copied the answers from his schoolmate reaped unearned grades, both cases being paradigms of injustice. In all these examples the central feature is—with varying degrees of complexity—that one man deprived another of his freedom to act as he could have chosen.
On a socio-political scale the situation is markedly similar. Slavery, to take a rather drastic example, makes it impossible to determine who is responsible for consequences of the slave and slaveowner's actions as a matter of law. In other words, while retrospectively we can assign the proper responsibility in many cases, within the context of a political system where slavery is legally sanctioned, the determination of justice will be impossible, in fact. If a slave is made to do the various chores his master wants him to do, the resulting consequences, whether beneficial or harmful, are clearly not the slave's responsibility; the slave might have acted very differently had he been free to choose his own goals, though, of course, he might have done just what the slaveowner made him do. The slave-owner himself cannot be held solely responsible for the results, for it is indeterminable whether he would have pursued his goal had slavery not been permitted by law. Whatever we might say about degrees of responsibility, what is clear is that, within a slavery sanctioning political system, the linking up of causes and effects regarding human action is rendered virtually impossible—impossible, that is, correctly. To be sure, a slave will most often be blamed when what he was told to do involved harmful consequences. If a slave is told to drive to town and in doing this he runs over a person, the slave will surely be held responsible; yet no one can say whether he would have undertaken the drive had he had the freedom to choose his course of action.
Furthermore, within the slave's private life the linking of causes with effects cannot be achieved. For we cannot tell just what personal tragedies were brought about by the slaveowner's whim, as distinguished from consequences which followed decisions of the slave that he would have made whether living as freeman or slave. Illnesses, eccentric traits, over- or undernourishment and the variety of possible states men find themselves in may all be the results of this person's status as a slave; yet they may have nothing to do with it.
With serfdom the situation is not fundamentally different. Here again the society's legal system sanctions the conditions which serfs suffer and the responsibility for events and situations in which serfs are involved cannot be assigned justly within the system.
What is common to these is that the persons involved are not free to choose their own goals, the means of attaining them, etc., but are consistently interfered with by others. Furthermore, this condition is sanctioned by law and is officially considered the most appropriate. When persons are allowed by law—or caused by law—to suffer the consequences of actions actually performed by others, when citizens must forever live as cripples because the state used them in scientific experiments against their will, or when persons are legally punished for performing badly on a job which they were forced to take—then what we have is clearly a condition of injustice within the respective political systems. And what is characteristic about injustice in law is that it obtains from the legal sanction of the coercion of some people by others, that is, the legal unavailability of freedom. If anything is properly designated unjust, it is a situation where someone is either enjoying or suffering consequences not caused by him. (This, incidentally, may be applied to the enjoyment of gifts and inheritance; however, to prevent the resulting injustice would involve a more serious form of injustice, in most cases—the usurpation of the rights of individuals to distribute what is theirs to willing takers.)
To suffer unjustly is to suffer for something caused by another. To benefit unjustly is to benefit from something achieved by another at the other's expense. (Clearly, I may benefit from another's achievements, say his tasteful dressing habits or his use of the right kind of deodorant—nowhere do I delimit his own opportunity to enjoy the consequences of his acts, however.) With some risk we may put it thusly: injustice denies, justice links cause and effect.
If a political or legal system fosters the denial of cause and effect, then it is to that extent, unjust. In order to see whether our political system can be so characterized, and why, I will consider some of the results of the laws our political system incorporates. Clearly, the impact of these laws, if there is any, may not be so severe as to cause the degree of injustice—or the scope of it within the society—that we are familiar with in connection with the kind of societies depicted above where slavery and serfdom were legally sanctioned and supported practices of the society as a whole. Surely, in contemporary oppressive societies the discussion of justice, in a manner as directly critical as this essay may turn out to be, would not be permitted. Yet, the simple fact that injustice has not (in America) teached a degree of pervasiveness we know it can reach and has reached elsewhere needn't soften our aversion to it, nor need it prompt us to dismiss the issue as insignificant in comparison to other harmful or evil situations which are also present.
Some of the laws which I will proceed to show to contribute to injustice are not all pervasive. There are ways in which one can avoid being submitted to the legal measures of a society, yet, in the end, it is very hard to tell whether any member of society can escape the results of unjust laws, especially if some of these results may be welcome.
The broadest of the laws which are in this category—productive of injustice that is—is the federal taxation law; it is broad because it covers all citizens who are engaged in any kind of productive enterprise. Yet, tax laws, while the broadest, are not the most consequential in impact. The law of our political system which fits the characteristic of "most unjust" is the military conscription law, better known to all as the draft. Related but less widely known noted laws which can be seen as unjust are; laws and bills permitting the subsidization of businesses; laws imposing tariff restrictions and quotas against foreign businesses (indirect subsidization); the law prohibiting the ownership of gold; laws and bills which permit the dispensation of taxpayer's funds for selected scientific endeavors, cultural ventures, educational projects, etc.; zoning laws (which operate in many of the smallest communities of the country); eminent domain laws; property and sales tax laws; price fixing laws; anti-trust laws; "right-to-work" laws (which forbid business firms and labor groups to enter into free contractual agreements); censorship laws; conservation laws; laws against gambling, prostitution, or the use of drugs or narcotics; "public accommodation," "fair employment," "fair housing," and related laws aimed at integration; and thousands of others…one could go on forever.
What is evident in the above list is that all of the laws included deviate from the purpose of government most widely accepted, namely the protection of the rights of individuals against the usurpation or abridgment of these rights by other men; in other words, the list includes laws which are "progressive" and render government an agent toward bringing about certain preferred human aims as against others, even when some members of the citizenry would prefer to neglect these aims. Laws, on the other hand, which protect the right of persons to act in line with their judgement, provided other's right to this is unimpinged, are not in the above list. The distinction, though a controversial one among philosophers interested in the concept of "human rights," is evident between progressive and protective laws. In this discussion, however, I cannot defend the distinction in detail. What I want to say about it is simply that the laws which I call protective are equally related to all citizens since they deal with the rights of all human beings to possess, with something which is common among the members of a society; the laws, however, which are in the list deal with the particular aims, goals, interests, difficulties, preferences and tastes of segments of the citizenry. For this reason I call them "progressive" laws: they contribute to the progress of these aims and goals; they do so, however, at the expense of other people's ability to make progress in the aims they have chosen or might have chosen for themselves.
The laws I have included in my list can be seen to comprise a substantial portion of what is called welfare legislation in our country (or elsewhere). It is the thesis of my paper that elements of the welfare state render the realization and attainment of justice in our society impossible. It is of no importance how the laws come into being—in principle they are no different from laws established by dictators, monarchs, the communist or fascist ruling groups, or a tribal lord, as regards their content; they serve to deprive individuals of their freedom to run their lives in line with their own judgments and capabilities. It is unimportant here whether the people who are thus effected like or dislike their condition—the story of the happy southern slave is widely known and repeated by those who argue for the security and other "advantages" of slavery as against the benefits of justice. It is another issue entirely whether justice is to be preferred to other factors which could be secured in a political society.
Some have said that a just law has to satisfy no other requirement than that it is applicable to all citizens equally. This may indeed be an important rule (measure) for justice in the application of laws but it is not central to the productivity of justice by laws. A law, universally applied, which would hold guilty of murder not the person who did the killing but one who was in closest spatial proximity to him would be open to "just" application but be productive of injustice, nevertheless.
At this point let me return to the central purpose of my paper and give some illustration of the way in which some of the laws I listed are productive of injustice. Let us take taxation and see in what manner it produces injustice, i.e. in what way taxation renders the assignment of responsibility for various events, situations, circumstances, be they harmful or helpful to taxpayers, impossible. In what way, that is, do tax laws break the link between cause and effect in human action as this relates to the operation of the assignment of responsibilities?
When a person is taxed, he must, under threat of legal punishment (fines, jail, etc.), give up a certain amount of his earned income for purposes planned by present or past lawmakers. Here it is not important and relevant that some of these purposes may be shared by the taxpayer himself; he must support them—he does not enjoy the option of supporting them or not supporting them. What is central is that the taxpayer is not free to withhold his support from the purposes in point. In being deprived of his freedom to use his earned income for purposes designated wholly by him, the taxpayer's resources for advancing his own goals and purposes have been limited considerably.
The above is often rejected as a correct characterization of the nature of taxation on the following grounds: the citizen has gained immensely from many of the goals which have been achieved without his consent, in the past; for this reason it is only right and just that he should share the cost of these accomplishments. This is highly spurious. It is clearly unjust that a person, having been "given" something, for which he never had even the opportunity to ask, is made to share the cost of the "gift" at a later date, when he does not enjoy the option of rejecting the gift. The injustice arises out of the imposition of a responsibility upon the person when he does not share in the assumption of that responsibility. The reply that "He can leave the country any time he does not prefer the conditions" is equally spurious: after all it is merely an admission of injustice to tell a person that if he does not like the injustice he has still the option to escape the premises where it is the existing political or legal condition. Furthermore, if injustice is accepted within the legal system in principle, there is no ground for limiting it to those who wish to remain within the territory covered by that legal system; the next step may include the injustice of disallowing people to depart. (Such a measure is being contemplated in Great Britain as a result of the "brain drain" on the very grounds that the people who are leaving received their "free" education in England; it is, of course, the status quo within the communist block.)
Considering that the issue at hand is the determination of whether justice is possible within a political system correctly characterizable as a welfare state, we can proceed to investigate the manner in which taxation relates to this question. It should, however, be kept in mind that when one speaks of a society and its political system, it is a mistake to compare the situation to that of a social club or a fraternal organization. These latter are voluntarily formed groups which coexist within a society and do, in fact qualify very frequently as a "legal person" in their treatment by the law. The groups do not resemble society in many ways; most importantly, however, one is free to join or not to join them, free to take one's leave from them once his self-assumed debts to the organization have been paid, and the organization has no police force of itself but operates within the legal system of the society of which it is a part. Society, in general, does not have this character: its members are born such, in the main; one does not have the choice to assume one's "obligations" to the general society; society's government body is not legally responsible to yet some greater or higher organization with its own legal system). The fact that there are in existence different nation-states and that there is some toying with the idea of a super-world-legal-system (world law, United Nations, etc.) does not invalidate my point; the governmental system preferred by someone is usually the same that he would like for the whole world to adopt. This is true of those who find the welfare state as the best kind of organization for human beings. This clearly is not the case with social and fraternal organizations such as the Lions or Kiwanis Clubs, the Red Cross, Optimists, and the thousands of other groups, each of which has its own special (group of) goals, aims, purposes, methods, interests, emphases, and so forth, representing the goals, etc., of its members, all of whom joined the groups presumably knowing of these and free to stay out. The contract theory of society promulgated by political philosophers such as Jean-Jacques Rousseau, is a totally invalid conception of the state, both historically and theoretically.
Now, to return to the investigation, let me note that the taxpayer's own choices are not the determinants of what he will do. He will be forced to support programs—with his presumably honestly earned taxed income—he might never support were he free to refrain, and again, he might never undertake goals that he would have chosen to pursue had he been free to do so. What he will do, in areas where he is free to act, will be the complicated outcome of choices with possibly crucial alternatives removed. With these alternatives lacking, it is now—when we attempt to attain justice in appraising him, both legally and otherwise—simply impossible to determine whether this lack did in fact contribute to the various events, circumstances, and states of affairs of his life.
Let us just imagine that the individual in question would have been free to invest his earnings in some business venture; he might have spent it on further education for himself or his children; he might have gambled it away—the possibilities are innumerable. However he might have spent his income had he been free to do so is indeterminable. What is more important is that equally indeterminable is who precisely is responsible for this condition in which we find the taxpayer.
If the abstract account given above has no impact, perhaps a more concrete one will. We can easily imagine a citizen who needs a new car because the motor of the old one is defective. He cannot, however, both pay his taxes and purchase a new vehicle. One morning he gets into an "accident' and suffers serious injuries, all as a consequence of the failure of his automobile. It is obvious that we cannot determine who is to be held responsible for the "accident" and the resulting injuries, etc. The individual could not buy a better car after he paid his taxes; furthermore, we cannot tell whether he would have bought one, had he been free to do so. So, the case is closed—with his earnings taken as taxes he certainly could not buy a car, and of his own free choice, with all his earnings, he could have, but might not have, bought one. The responsibility for the ensuing situation: indeterminable; a just appraisal of the situation: impossible.
It may be replied that "After all, the sheer fact that our social, economic and other interactions are complicated—not to mention the issue of psychological and sociological theories which make the matter even more complex—can contribute to numerous situations wherein the assignment of responsibility and, therefore, just appraisal, are rendered impossible." Granted the objection, there is a fundamental distinction between injustice which is the result of default, complications, and the like, and injustice which is brought about through the consciously planned actions of members of society, human beings, who might have refrained from making the laws which now contribute to the widespread injustice. From complications injustices arise, which, however, are not planned to occur and are not desired, at any rate. From laws, which are not the result of the complexities of life itself but the ideas men have about dealing with some of these complexities, injustice can only be seen as avoidable.
The impact of taxation on a man's life is immense—yet, very few respected and prominent philosophers would argue that taxation is a contributing factor to injustice, taxation as an institution; they may argue that certain features of it produce injustice, of course. And this is not surprising. The interventions into the life of individuals in our society are so widespread and common, so well embedded, that they are virtually impossible to sort out. We may benefit from modeling the situation on what happens to the balls in a pinball machine: by the time they reach the end of their run they will have gone through various interferences, obstacles, shoves and pushes, all of which contribute to the end result. With a person the situation is a thousand times more complex due, in part, to the fact of human agency itself. The interferences are both caused and suffered by people, yet the intermediary, the laws, serves to break the link between the interferer and the interfered unlike the pinball case and unlike, even, the case where a person suffers the interference not from the law but from a private individual or group, as in the case of theft, murder, extortion, and fraud. In these latter, interference has occurred but the law instead of perpetrating it, works to prevent injustice by linking the parties with their responsibility as best as that can be done by human beings. I have, thus far, been talking about just one of the hundreds of thousands of laws which can be characterized as depriving people of their freedom to pursue their own chosen ends, that is, laws which are productive of injustice. I will mention only one other law of this kind. This is conscription. The draft deprives a man of at least two years of his life if he is subject to it. Yet, there is absolutely no cogent justification for this law within a society the legal system of which has long rejected slavery as one of its features.
Conscription is defended most frequently on two grounds: (1) A person owes his country certain services in return for the benefits he has accrued by being born in the given country; (2) a country has a right to defend itself against possible aggression and such defense is unattainable without conscription. Both of these arguments uphold the welfare of the society (the state) as prior to the welfare of the individual citizens involved in providing that welfare. This is why I consider them classic arguments in behalf of the welfare state.
I have already dealt with argument (1) in connection with the alleged duty of a citizen to pay for services from which he gained benefits but which he never asked for. We saw that we were dealing with a variant of the social contract theory of society the model for which was provided by fraternal clubs and other private organizations which are indeed formed by contract.
Argument (2) is somewhat complicated because it presumes a theory of nationhood still in question. Does any kind of country have the right to defend itself? What kind of right would it be that would grant legitimacy to a dictator's attempts, for instance, to defend the country which he rules? Presumably it would not be a moral right but a right of fiat, i.e., a right claimed by reason of rulership. If we are to talk of the right of a country or society to defend itself against aggressors, we must be open to the possibility that some countries cannot claim that right. This leads to problems of legitimate authority.
When does a government have legitimate authority to govern? Presumably when it is representative, when the governed have freely chosen to delegate to the government certain responsibilities to be carried out by that government. The crucial feature then is the freedom of the governed, the citizens. If conscription involves the usurpation of the rights of individuals to act in accordance with their own wishes, judgments, goals, etc.—the usurpation of freedom—then a government could not possibly conscript its citizens without losing its legitimacy in the process.
If, then, a country has the right to defend itself, it cannot do so by conscription without losing that right (by losing its legitimacy and, thereby, its right of exercising authority).
It is clear that conscription limits freedom of action; thus, the consequences of military conscription—or any other kind—are such that it is impossible to speak of the draftee as one who is responsible for his action—his life is largely not in his own hands, the actions which he undertakes are not strictly his own, and the responsibility which ordinarily goes with the performance of actions by persons cannot, therefore, be his own either. Of course, some decisions and acts, once the limits of decisionmaking have been set by law, are the draftee's own. It would, therefore, be false to hold that he was responsible for nothing. Even this fact becomes obscured by the constant factor of interference, however.
It is obvious from the above that conscription is productive of grave injustices in society and renders the determination of responsibility—the linking of cause and effect in human action—impossible. In various more or less complicated ways, laws such as price-fixing, minimum-wage regulations, racial quotas, censorship, anti-gambling ordinances, and others are productive of similar injustices. Minimum-wage laws, for instance, force an employer to pay more for work than the market can bear; this can result in cutting down the workload; as a result people will be dismissed; others gain higher wages not as a result of better work but because of direction from the government; the higher wages can lead to higher prices, thereby eliminating the general effect of higher wages altogether. When companies collapse, employees are dismissed, children go hungry, illnesses cannot be cured for lack of funds, etc., etc.—thousands of consequences follow as a result of the initial government action which deprived men of their right to act in line with their own judgment; once again the link between the cause of the results and the results are broken and responsibility cannot be assigned.
Governmental subsidies to businesses are productive of similar results. And so are tariffs and quota systems, both of which deprive buyers in this country of alternative courses of action by force. When a manufacturer simply withholds his products from the market the situation is different, since it is he who makes the product and he, therefore, is not depriving anyone of something to which there exists a right. If Frank Sinatra refuses to sing to me when I offer to pay him for it, he is not depriving me of something to which I have a right. If another person stops him from singing by cutting his throat, both Sinatra and I have been interfered with. The government's tariff and quota policies can be modeled on the above example without any change in the essentials.
I believe that I have listed enough examples. Clearly, every law mentioned earlier and thousands of others can be put to similar scrutiny. What would be discovered is that at some point laws of this type interfere with the freedom of individuals in such a way that their activities will be impervious to being appraised concerning matters of responsibility, blame, desert, or accomplishment. And such a state of affairs renders justice within society an impossibility.
I have not ventured in this paper to suggest a governmental system in which the attainment of justice would be possible. That would certainly require not only another paper but several books. The fact that the society which I think would come closest to one within which justice is possible has been approximated within this country, with drastic contradictions evident within that approximation, would render the task of arguing for that sort of a system even more difficult than would ordinarily be the case. I am speaking, of course, about the system of government known as constitutional democracy, with government being limited to the duties of administering laws, protecting the innocent, and prosecuting the guilty. Within the society itself the police and the courts would represent the government, and for purposes of contact with other nations the military—pertaining to aggressors—and the diplomatic corps—relating to international legal matters—would represent the body and functions of such a government. The economy, morality, culture, sports, entertainment, education, etc., of the people would be their own individual business (or collective, whenever the collective body can be organized voluntarily). The financing of the government would be through the charging of fees for contracts which might be in need of legal backing and protection. Unlike a utopia, that kind of a system would secure justice for people, while it would be the people who would have to secure all else for themselves.
To argue for such system would take us into ethics, metaphysics and, finally, epistemology. So I must refrain from doing this now. My present aim has been to discern whether justice is possible within the framework of a governmental system commonly known as the welfare state. The conclusion of my inquiry was that it is impossible to have both justice within a society and the governmental system of the welfare state.
As I mentioned, this conclusion does not establish the undesirability or impropriety of the welfare state. There might be other considerations which must be brought to bear upon those questions, considerations which might lead us to abandon justice as a desirable state of affairs within a legal system in favor of some other commodity, say security or happiness or racial purity.
Needless to say, I cannot think of any commodity which is more important than justice. Thus I will confess my preference for a social system within which it is attainable. But a preference is not enough in philosophy; arguments are needed. To argue in favor of justice, as against other possible and competing benefits a governmental or legal system may provide, is necessary. Hopefully, despite the anti-political philosophy trend of contemporary philosophy, discussions related to such matters will attend to that question also.
Born in Hungary, Tibor Machan escaped in 1953 and came via Germany to the U.S. in 1956. He earned his B.A. from Claremont Men's College and his M.A. at New York University. Currently he is pursuing graduate studies towards a Ph.D. in philosophy at the University of California, Santa Barbara. His presentation is to be on the history of natural rights. Mr. Machan's articles have appeared in Barron's, Rampart Journal, the Freeman, the Personalist, and others, and he has lectured widely on aspects of philosophy.