'Justice on Trial'—Revisited

Last month REASON presented a controversial article by Robert LeFevre attacking the conventional restitutional concept of justice and advancing a pacifist alternative. This month, associate editor Tibor Machan replies to LeFevre's arguments.

Robert LeFevre of Rampart College has presented readers of REASON with a commentary concerning his understanding of the role of the concept of "justice." I take the liberty of capturing the theme of Mr. LeFevre's piece with some reservations—his essay covers a great deal, but it is introduced by the remark that its aim is "to explore the origins of the concept of justice." Besides this concept, however, LeFevre discusses the concepts of "government," "retaliation," "fairness," "nature" (from a supposed theological framework), "moral obligation," "enforcement," "protection," "free market," "retroactive justice," "imposition," "hell," "heaven," and "restitution." Of these only "justice" is provided with a definition; however, this definition is offered in a context of "ancient theology" and "theological literature," and thus it is unclear whether LeFevre wishes us to consider it a contextual definition pertaining to the epoch of history called "Babylonian" or perhaps even "primitive." The rest of the concepts are never defined, even though LeFevre alleges various properties, qualities, or features of them in order to make good certain of the claims he advances in his essay. Hopefully, then, the reader will have read the piece and can either recall his understanding of it and its theme or appreciate the difficulties I had and have in identifying what the piece was about.

The consequences of LeFevre's omission of direct quotations emerge very early in his essay. He tells us in the second paragraph that

we think of justice as something that can be regained, once it has been lost. That is, many hold to the notion that when an exchange occurs which is not equitable, some element of force may rightfully be invoked in order to convert the non-equitable exchange into an equitable one.

It is most important to ask here, "Is what LeFevre is saying true? Do we think of justice in this way? Have we any guidance as to where we may find those who so think or at least read or hear evidence of their so thinking?" I do not think that as readers of LeFevre's essay we have such guidance from LeFevre, the one who is responsible to give it to us.

Status Quo Justice

LeFevre says, "The fundamental concept of justice thus coming to us from its theological roots is that there is a straight line in nature which begins with the status quo." He continues, "…justice, then, can be defined as a mystical concept relating to the presumed rightness of the status quo, symbolized by a straight line found in the balance of nature." In support of these claims, which we shall focus on shortly, LeFevre mentions—but does not quote—Wigmore's "three-volume study, Panorama of the World's Legal Systems. This work is supposed to report that "the God of Justice (Maat), was often depicted in Egyptian art with scales at hand with which to weigh the good deeds and the evil deeds of the departing Ka (soul of man)." This, and some practice of the Mesa Verde Indians of the Four Corners area of Colorado, supposedly gives right to considering justice a mystical and theological concept. (Is this all that LeFevre gets out of Wigmore's three volumes? Or do we have here an instance of pleading one's case? I believe the latter is the case.)

Frankly, LeFevre's obvious attempt to discredit the concept of "justice" by identifying it with myth, theology, religion, and mysticism, simply won't do. Virtually all moral concepts—including the idea of the importance of the individual man and his freedom from coercion—can be identified with theology, etc., when the focus is upon historical association. The Bible, for example, makes a pitch for all kinds of contradictory virtues, some libertarian, some socialist, and so on. Religion was indeed the birthplace of many of man's attempts to conceptualize his own moral nature. (I believe it was Ayn Rand who remarked that religion is infant philosophy—and would add, I am sure, that we have grown up now, so let's do without.) Ludwig Feurerbach and many others have argued for a similar general interpretation of man's religious tendencies.

For all this it cannot, however, be derived that the concept of "justice" is necessarily connected with mysticism or God. Even mention of "an eye for an eye" won't help to prove that thesis; the concept has been shown to have emerged out of non-mystical contexts, also, as for instance in Western political theory. (Professor Robert Hartman of the University of Mexico notes that this notion is not so much an encouragement—to wit: "you must take an eye for an eye"—but the setting of a limit—i.e., "no more than an eye for an eye may be taken.")

So the smear work will have to wait; LeFevre did not pull it off. But let's return to the more substantive implications of LeFevre's early reference to justice and its supposed definition. Is it fundamental to the concept of "justice" that there is "a straight line in nature which begins with the status quo"? Without offering a detailed analysis of that concept, this question is not simple to answer—and I will not answer it in full. Suffice it to note that Leo Strauss, no small authority on the history of natural right and natural law theory, appears to think differently. He explains in his history of natural right(s) that the concept of "right"—alternately used for "just" within Greek and Roman law—emerges out of some Greek thinkers' attempt to differentiate between the status quo's authority and nature's dictates. Plato clearly gives a naturalist instead of conventionalist (status quo oriented) account of justice in The Republic. Cicero and Aquinas do no less. While God or gods may appear in the thinking and even arguments of all these naturalists, it is standard history of intellectual thought that these thinkers attempt very seriously to eliminate reference to a supernatural God in their account of morality and the right principles of social existence. Aquinas, for example, maintained that it is reason which leads us to virtue and right. God enters the scene only after reason does its work. Later Grotius and Locke followed suit. And the proper source of moral and political truths is always reason (which grasps nature) not convention.

Nature and Justice

LeFevre's claim that the concept of "justice" is fundamentally linked with nature "which begins with the status quo" is open to very serious challenge. For my (critical) purposes this will do. We turn now to whether "justice can be defined as a mystical concept…etc." Given the earlier objections to LeFevre's project, it appears now to be unwarranted to link justice with mysticism. Neither can it be made out that justice relates "to the presumed rightness of the status quo." This is because the idea of "balance is nature" need not, logically, symbolize the status quo. If anything, Strauss argues just the opposite: the status quo was expressed in the reliance on authority (originating in those who considered themselves representing the status quo), while justice was thought to be what nature dictated as right.

Thus, the principle that "no man ought to profit from doing wrong to another," giving rise to the feature of justice which entails retaliation against wrongdoers, is seen not as an expression of public or paternal (status quo) vengeance but natural rightness. Professor Herbert Morris argues eloquently for the same general view in his article "Persons and Punishment" (The Monist, October, 1968). He thinks that every man has a natural right to be punished as a consequence of his own actions—he is thereby experiencing the natural consequences of his own (wrong) doings. Morris believes that this is indeed a natural right.

Moral Obligation

I jump now to a point made midway through LeFevre's piece concerning the nature of moral obligation. First of all, LeFevre spends no time or effort on differentiating between moral duty and moral obligation. Playing fast and loose with these notions he feels safe in saying,

If a man can conceivably have a moral obligation before he has assumed it, then we open a Pandora's box and can suggest, with equal validity, that he also has a moral obligation to see that everyone is fed, clothed, housed, educated, and so on, ad nauseam, for the good of the social whole.

But here again we must ask, "Is this true?"

Consider, first, that "moral obligation" is undefined and confused with "moral duty" (which appears earlier in the paragraph). Can we read it as "moral responsibility"? Must all moral responsibilities be assumed? Can we ask, on occasions, whether they ought to have been assumed? For instance, in the case of a person's moral responsibility to refrain from coercion? Or his moral responsibility to be honest, productive, etc.? Are these not responsibilities that every man ought to assume simply because by nature assuming them will be to his good? Thus the moral responsibility to take measures against actual aggression and its likelihood (in the case of those who have proven to be aggressors) is one which some libertarians, especially Objectivists, have claimed that every person ought to assume and, in turn, live by. Furthermore, this responsibility ("obligation") cannot be identified by fiat as having "equal validity" to the others LeFevre lists.

It is precisely what is in question: whether self-responsibilities are on par with responsibilities we may have to others. Since the latter are "to others," libertarian theory argues that they must be assumed voluntarily by some explicit or implicit agreement, while the former are not so assumed, if at all. And, finally, LeFevre's qualification that such a moral obligation is on par with those which are designed "for the good of the social whole" is also gratuitous. Man could have moral obligations toward himself by his very nature (though he may fail to fulfill them or assume them) and not have such obligations "for the good of the social whole."

It appears that LeFevre is here trying to get mileage out of his identification of natural with status quo; he is making it appear as if natural rights, the source of the correct concept of "justice," really means "rights specified by society," whereas this is precisely what the qualification "natural" is designed to counteract.

Although I am not an anarcho-capitalist (see this issue's Special Supplement —Ed.), I know that LeFevre is wrong in believing that those who argue for free market retaliatory agencies have argued just how their "procedure is to maximize human well-being and bring about a state of freedom and peace." Dr. Murray N. Rothbard argues at length the details of just such a procedure in his Power and Market; Linda and Morris Tannahill do so, also, in The Market for Liberty. So proponents of "rival (?) free market retaliatory agencies" have "dealt with" what LeFevre asserts they have not dealt with. Naughty, naughty! Equating gangland mobs with such free market agencies must be done far more carefully than LeFevre does. Perhaps a point can be made, but surely it has not been made by LeFevre in this piece.

Retribution and Retaliation

LeFevre abounds in unsupported equivocations. To wit, he claims that those who link protection and retribution (note the switch from retaliation!) "accept government as the all-purpose problem-solving mechanism." Do they? Where is the proof? Where can we look for the evidence? LeFevre is no help to us. He simply asserts, without proof or evidence. Then when he claims that these unfortunate souls give up and simply accept an "admittedly evil and wrong" government, it is once again only a strawman quote which is offered to the reader.

LeFevre then goes on to tell us that while "protection is a free-market service…retaliation by its objective character (where? what is it?) is something only an agency of force can accomplish." I wonder how long a protection agency (bodyguard, etc.) would last which could not be an agency of force on appropriate occasions?

We could go on. LeFevre gratuitously equates retaliation with imposition; he talks of the theological conception of justice as "correction in another life" while still accepting the secular concept of "justice" as providing "a heaven and a hell on earth and in this lifetime." Well, one should think so—but what then happens to the claim that justice is a "mystical" concept? If hell ought to be experienced by anyone ever, it should be here on earth—nothing would be accomplished by waiting for an after life. (This is why justice has a function in human, living society and none, other than inducing irrational fears, within a religious framework.)

Lesson

LeFevre closes his essay with some words of advice. He says,

And if and when you are victimized, either by a bad product, a bad service, or a bad actor, you can learn a lesson from this and take the available precautions so that you will not suffer a second time.

Right on, one wants to say, and add, "and the lesson is, some of us having learned it by now, that we ought to make provisions for instantiating the moral/political principle that 'no man must profit from his wrong against another,' in the form of a just legal system of protection of human rights and the punishment of their violation." I am only sorry that Mr. LeFevre, who has done much work toward educating individuals in the value of freedom, has not learned that lesson.