Chapter 8 Visions of Justice
Justice is viewed differently in two contrasting philosophical visions. In the unconstrained vision, justice is seen as the supreme virtue of society, uncompromising and non-negotiable. It is considered paramount, with individual rights derived from justice taking precedence over other social considerations. This view holds that justice should not be traded off for any reason, even for the overall welfare of society.
In contrast, the constrained vision sees justice as instrumental to maintaining social order. This perspective argues that justice need only be "tolerably observed" to serve its function of preserving society. The constrained vision believes that the breakdown of order, even if unjust, would cause more suffering than some injustices. This view accepts trade-offs between justice and other social imperatives due to the inherent limitations of human nature.
These differing perspectives on justice reflect fundamental differences in how these visions conceive of human nature and society's priorities.
Legal Justice
The constrained vision recognizes that humans have limits when it comes to justice. It favors a simpler form of justice that puts society's needs before individual fairness. This view sees laws as coming from shared experiences over time, not from smart people creating them on purpose. It values having clear, known laws that everyone can follow, even if they're not always fair to each person.
People who support this view think human reasoning isn't perfect and can't be trusted to make laws directly. They believe in following old rules and decisions unless they're clearly wrong. They see laws as growing naturally from how people feel and what they experience, not from what smart leaders think up.
The constrained vision, supported by thinkers like Oliver Wendell Holmes and William Blackstone, sees law as a trade-off between individual justice and society's interests. It relies on wisdom that has built up over time rather than on individual smart thinking. This approach values the experiences of many people over the ideas of a few brilliant ones, and it prefers how things have naturally developed over time to new ideas thought up by individuals.
The unconstrained vision wants to treat each case differently. It says every situation is unique and justice should look at all the details. This view tries to change how people think and feel, rather than using rewards and punishments to make them behave.
This vision sees laws as being made by brilliant individuals and thinkers. It doesn't like focusing only on legal processes, thinking this might keep unfair systems in place. Instead, it cares about the results in society and wants judges to make important choices based on what's morally right.
Supporters of this view, like William Godwin and John Dewey, want to make individual interests and society's interests work together. They aim to rely less on rewards and punishments over time, especially punishment. This view focuses on changing how people think to align with what's good for society, rather than creating outside motivations.
Modern supporters of the unconstrained vision, such as Laurence Tribe and Ronald Dworkin, say that constitutional law and moral theory should be combined. They argue against approaches to law that only focus on procedures, seeing these as potentially keeping social inequalities in place. Instead, they want judges to make important decisions based on moral considerations and how they will affect society.
These supporters say that when judges interpret the Constitution, they can't help but use their own judgment. They think judges should think about how their decisions will affect society and see the Constitution as a guide for moral ideas, not just a set of strict rules.
These two visions have different ideas about punishment, how to encourage good behavior, and how laws should be made and understood. The constrained vision is careful, values history, and thinks about what's best for the whole system. The unconstrained vision focuses on creating new ideas, looking at each case closely, and using moral thinking to shape justice.
These different views come from different ideas about human nature, how we think, and how well we can achieve justice. While they might agree on some basic values, they have very different beliefs about what people can do and the best ways to make society fair.
Overall, the constrained vision sees justice as limited by human capabilities and favors tried-and-true methods, while the unconstrained vision believes in the power of human reason to create a more perfect justice system. These contrasting views continue to shape debates about law and justice in society today.
Individual Rights
The constrained vision sees rights as legal boundaries within which individuals make decisions without government interference. These rights are process-oriented and aim to benefit society as a whole. Property rights and free speech are viewed as zones of immunity from public authority, justified by their social benefits like economic efficiency and diffused power.
In contrast, the unconstrained vision views rights as inherent to individuals for their personal benefit. This perspective prioritizes free speech rights over property rights, considering speech universal while property is unevenly distributed. Property rights are seen as maintaining existing wealth distributions, while free speech rights are viewed in terms of results and access to communication channels.
These differing visions influence interpretations of the U.S. Constitution and court rulings. The constrained vision emphasizes social expediency and human knowledge limitations as reasons for protecting free speech. The unconstrained vision focuses on substantive outcomes of rights and argues for a broader interpretation of free speech that may sometimes override property rights.
These opposing perspectives lead to different approaches in balancing individual rights with social interests. They also result in varying interpretations of the scope and limitations of rights in legal and political contexts. The debate between these visions shapes how society understands and implements individual rights within its legal and social frameworks.
Social Justice
The concept of social justice has been a point of contention between the unconstrained vision and the constrained vision.
In the unconstrained vision, social justice is seen as a moral imperative and a matter of entitlement. This perspective argues that all members of society have a right to a share of the wealth produced, regardless of their individual contributions. Thinkers like William Godwin and George Bernard Shaw viewed social justice as a duty to help fellow citizens, rejecting the idea of charity in favor of what they considered a rightful distribution of resources.
Conversely, the constrained vision, represented by thinkers like F.A. Hayek, views social justice as a problematic and potentially dangerous concept. Hayek argued that social justice is meaningless and absurd, considering it a process rather than a result. He believed that attempts to achieve social justice could lead to the destruction of civilization and pave the way for totalitarianism.
The unconstrained vision focuses on achieving specific results in income distribution and social mobility. It sees these outcomes as matters of justice rather than charity. This perspective argues that wealth is not truly owned by individuals but should be distributed based on societal needs.
In contrast, the constrained vision emphasizes the importance of processes and rules rather than predetermined outcomes. Hayek and others in this tradition worry that pursuing social justice could undermine the rule of law and individual freedoms. They argue that society cannot act with specific purposes in mind and that attempting to do so is both futile and dangerous.
The constrained vision sees the concept of social justice as a potential threat to freedom and general well-being. It warns against the expansion of government power to achieve specific social results, arguing that this could lead to totalitarianism. Hayek specifically linked the pursuit of social justice to the rise of oppressive regimes like Nazi Germany and communist states.
While both visions may support humane efforts to help the less fortunate, they differ fundamentally in their approach. The unconstrained vision sees this as a matter of justice and entitlement, while the constrained vision views it as a matter of voluntary charity within a system of rules and individual rights.
The debate between these two visions highlights a fundamental difference in how society and justice are understood. The unconstrained vision seeks to actively shape societal outcomes, while the constrained vision prioritizes maintaining processes and individual freedoms, warning against attempts to control complex social systems.
This philosophical divide continues to influence modern debates about wealth distribution, social policies, and the role of government in addressing societal inequalities.
Summary and Implications
The unconstrained vision posits that humans can foresee and control the consequences of their decisions. It emphasizes social justice, equality of results, and the importance of moral standards in decision-making. Judges, according to this view, should base their rulings on constitutional values rather than strict procedural rules. Individual rights are paramount and should take precedence over social expediency.
This vision promotes the concept of "social responsibility" in decision-making, arguing that individuals should consider the greater good even in personal choices. It supports equality of outcomes, which may include compensatory treatment for disadvantaged groups. The unconstrained vision distinguishes between rights and interests, with rights being given higher priority. It favors policies like affirmative action to address historical injustices.
In contrast, the constrained vision sees humans as incapable of effectively monitoring the social consequences of their choices. It considers the pursuit of social justice beyond human capability and instead focuses on social processes and long-term assessments. This perspective prioritizes the rule of law over attempts to achieve specific social results.
The constrained vision views individual rights as originating from and limited by social needs, but doesn't allow authorities to arbitrarily change these rights. It prefers experiential assessments and values the choices of many over the opinions of a few experts. This vision rejects complex social engineering in favor of applying rules that allow individuals to make their own trade-offs.
These contrasting visions lead to fundamentally different approaches to law, social policy, and decision-making. While the unconstrained vision seeks to actively shape society towards desired outcomes, the constrained vision emphasizes the limitations of human knowledge and control in achieving specific social results.
Justice is viewed differently in two contrasting philosophical visions. In the unconstrained vision, justice is seen as the supreme virtue of society, uncompromising and non-negotiable. It is considered paramount, with individual rights derived from justice taking precedence over other social considerations. This view holds that justice should not be traded off for any reason, even for the overall welfare of society.
In contrast, the constrained vision sees justice as instrumental to maintaining social order. This perspective argues that justice need only be "tolerably observed" to serve its function of preserving society. The constrained vision believes that the breakdown of order, even if unjust, would cause more suffering than some injustices. This view accepts trade-offs between justice and other social imperatives due to the inherent limitations of human nature.
These differing perspectives on justice reflect fundamental differences in how these visions conceive of human nature and society's priorities.
Legal Justice
The constrained vision recognizes that humans have limits when it comes to justice. It favors a simpler form of justice that puts society's needs before individual fairness. This view sees laws as coming from shared experiences over time, not from smart people creating them on purpose. It values having clear, known laws that everyone can follow, even if they're not always fair to each person.
People who support this view think human reasoning isn't perfect and can't be trusted to make laws directly. They believe in following old rules and decisions unless they're clearly wrong. They see laws as growing naturally from how people feel and what they experience, not from what smart leaders think up.
The constrained vision, supported by thinkers like Oliver Wendell Holmes and William Blackstone, sees law as a trade-off between individual justice and society's interests. It relies on wisdom that has built up over time rather than on individual smart thinking. This approach values the experiences of many people over the ideas of a few brilliant ones, and it prefers how things have naturally developed over time to new ideas thought up by individuals.
The unconstrained vision wants to treat each case differently. It says every situation is unique and justice should look at all the details. This view tries to change how people think and feel, rather than using rewards and punishments to make them behave.
This vision sees laws as being made by brilliant individuals and thinkers. It doesn't like focusing only on legal processes, thinking this might keep unfair systems in place. Instead, it cares about the results in society and wants judges to make important choices based on what's morally right.
Supporters of this view, like William Godwin and John Dewey, want to make individual interests and society's interests work together. They aim to rely less on rewards and punishments over time, especially punishment. This view focuses on changing how people think to align with what's good for society, rather than creating outside motivations.
Modern supporters of the unconstrained vision, such as Laurence Tribe and Ronald Dworkin, say that constitutional law and moral theory should be combined. They argue against approaches to law that only focus on procedures, seeing these as potentially keeping social inequalities in place. Instead, they want judges to make important decisions based on moral considerations and how they will affect society.
These supporters say that when judges interpret the Constitution, they can't help but use their own judgment. They think judges should think about how their decisions will affect society and see the Constitution as a guide for moral ideas, not just a set of strict rules.
These two visions have different ideas about punishment, how to encourage good behavior, and how laws should be made and understood. The constrained vision is careful, values history, and thinks about what's best for the whole system. The unconstrained vision focuses on creating new ideas, looking at each case closely, and using moral thinking to shape justice.
These different views come from different ideas about human nature, how we think, and how well we can achieve justice. While they might agree on some basic values, they have very different beliefs about what people can do and the best ways to make society fair.
Overall, the constrained vision sees justice as limited by human capabilities and favors tried-and-true methods, while the unconstrained vision believes in the power of human reason to create a more perfect justice system. These contrasting views continue to shape debates about law and justice in society today.
Individual Rights
The constrained vision sees rights as legal boundaries within which individuals make decisions without government interference. These rights are process-oriented and aim to benefit society as a whole. Property rights and free speech are viewed as zones of immunity from public authority, justified by their social benefits like economic efficiency and diffused power.
In contrast, the unconstrained vision views rights as inherent to individuals for their personal benefit. This perspective prioritizes free speech rights over property rights, considering speech universal while property is unevenly distributed. Property rights are seen as maintaining existing wealth distributions, while free speech rights are viewed in terms of results and access to communication channels.
These differing visions influence interpretations of the U.S. Constitution and court rulings. The constrained vision emphasizes social expediency and human knowledge limitations as reasons for protecting free speech. The unconstrained vision focuses on substantive outcomes of rights and argues for a broader interpretation of free speech that may sometimes override property rights.
These opposing perspectives lead to different approaches in balancing individual rights with social interests. They also result in varying interpretations of the scope and limitations of rights in legal and political contexts. The debate between these visions shapes how society understands and implements individual rights within its legal and social frameworks.
Social Justice
The concept of social justice has been a point of contention between the unconstrained vision and the constrained vision.
In the unconstrained vision, social justice is seen as a moral imperative and a matter of entitlement. This perspective argues that all members of society have a right to a share of the wealth produced, regardless of their individual contributions. Thinkers like William Godwin and George Bernard Shaw viewed social justice as a duty to help fellow citizens, rejecting the idea of charity in favor of what they considered a rightful distribution of resources.
Conversely, the constrained vision, represented by thinkers like F.A. Hayek, views social justice as a problematic and potentially dangerous concept. Hayek argued that social justice is meaningless and absurd, considering it a process rather than a result. He believed that attempts to achieve social justice could lead to the destruction of civilization and pave the way for totalitarianism.
The unconstrained vision focuses on achieving specific results in income distribution and social mobility. It sees these outcomes as matters of justice rather than charity. This perspective argues that wealth is not truly owned by individuals but should be distributed based on societal needs.
In contrast, the constrained vision emphasizes the importance of processes and rules rather than predetermined outcomes. Hayek and others in this tradition worry that pursuing social justice could undermine the rule of law and individual freedoms. They argue that society cannot act with specific purposes in mind and that attempting to do so is both futile and dangerous.
The constrained vision sees the concept of social justice as a potential threat to freedom and general well-being. It warns against the expansion of government power to achieve specific social results, arguing that this could lead to totalitarianism. Hayek specifically linked the pursuit of social justice to the rise of oppressive regimes like Nazi Germany and communist states.
While both visions may support humane efforts to help the less fortunate, they differ fundamentally in their approach. The unconstrained vision sees this as a matter of justice and entitlement, while the constrained vision views it as a matter of voluntary charity within a system of rules and individual rights.
The debate between these two visions highlights a fundamental difference in how society and justice are understood. The unconstrained vision seeks to actively shape societal outcomes, while the constrained vision prioritizes maintaining processes and individual freedoms, warning against attempts to control complex social systems.
This philosophical divide continues to influence modern debates about wealth distribution, social policies, and the role of government in addressing societal inequalities.
Summary and Implications
The unconstrained vision posits that humans can foresee and control the consequences of their decisions. It emphasizes social justice, equality of results, and the importance of moral standards in decision-making. Judges, according to this view, should base their rulings on constitutional values rather than strict procedural rules. Individual rights are paramount and should take precedence over social expediency.
This vision promotes the concept of "social responsibility" in decision-making, arguing that individuals should consider the greater good even in personal choices. It supports equality of outcomes, which may include compensatory treatment for disadvantaged groups. The unconstrained vision distinguishes between rights and interests, with rights being given higher priority. It favors policies like affirmative action to address historical injustices.
In contrast, the constrained vision sees humans as incapable of effectively monitoring the social consequences of their choices. It considers the pursuit of social justice beyond human capability and instead focuses on social processes and long-term assessments. This perspective prioritizes the rule of law over attempts to achieve specific social results.
The constrained vision views individual rights as originating from and limited by social needs, but doesn't allow authorities to arbitrarily change these rights. It prefers experiential assessments and values the choices of many over the opinions of a few experts. This vision rejects complex social engineering in favor of applying rules that allow individuals to make their own trade-offs.
These contrasting visions lead to fundamentally different approaches to law, social policy, and decision-making. While the unconstrained vision seeks to actively shape society towards desired outcomes, the constrained vision emphasizes the limitations of human knowledge and control in achieving specific social results.