Debating the Tenets of Social Justice
Individual Rights, Social Cohesion, and the Quest for Equality
DEBATING THE TENETS OF SOCIAL JUSTICE
Individual Rights, Social Cohesion, and the Quest for Equality
My aim in this article is to address one of the key issues in the social justice debates, namely, how we define justice and what is to be done when we disagree on how justice should be defined. We all hold varying philosophical ideas and beliefs about justice and racial justice, in particular. That philosophical diversity is central to the purpose of my inquiry.
It is clear that individual rights and liberties, including free speech and the right to private property, are the foundation of free societies. Yet these fundamental human rights have come under increasing attack in the racial equality debates. Free speech is challenged by those who feel offended by ideas they consider to be “racist.” Property rights are challenged by those concerned about economic inequality, who view wealth disparities between different racial groups as evidence of systemic racism and legacies of slavery or colonialism that should be reversed through redistributive “equity” schemes. The presumption is that political activism based on fashionable theories of antiracism is the only way to create true racial equality. This is said to be more important than protecting individual liberties such as free speech and private property, the idea being that individual rights should be subordinated to more important goals of wealth redistribution and racial equity.
Defending individual rights and liberties in debates about comparative group fortunes is a challenging task for many reasons. One reason is that these debates are often dominated by moral ideology rather than objective facts or empirical reality. We should heed Thomas Sowell’s admonition in The Quest for Cosmic Justice: in the search for the truth, we must subject social justice claims to “closer scrutiny and sharper definition” (p. 11; all quotations of Sowell in this article come from this book).
This article has five sections. In part 1, I explain my disagreement with the progressive egalitarians who unilaterally delineate the boundaries of “public reason” and then simply ostracize anybody who falls outside the scope of their view of public reason. The effects of this strategy are seen in cancel culture. Part 2 explains why social cohesion demands that we should all be free to agree to disagree on questions of moral ideology. Part 3 follows by examining the meaning of justice theorised by Sowell, as well as his conception of the rule of law. Readers familiar with Sowell’s work will know that he argues in favour of upholding the rule of law rather than trying to enforce contested ideas of social justice. The question “what is law” is much debated, and here Sowell distinguishes law from social justice. Part 4 identifies the erosion of free speech as one of the most pressing costs of contemporary equality and diversity policies. Part 5 concludes by asking what can be done about inequality for those who do not embrace socialist wealth redistribution. My analysis follows Walter Williams (Race & Economics: How Much Can Be Blamed on Discrimination?) in defending economic freedom and free markets as a sustainable path to prosperity.
1. The contested boundaries of “public reason”
Progressive liberalism promotes the idea of distributive justice inspired by John Rawls, in which the concept of equality takes higher priority than individual liberty. It is implicit in this perspective that the collective interest—equality for all—overrides individual rights where this is deemed to be necessary for the good of society as a whole. Progressive egalitarians depict modern liberalism as having evolved from its rudimentary philosophical roots into a more inclusive theory within which we can all agree on the priority of equality even if we may disagree about the logistics of implementing it.
Progressive liberalism identifies an impartial “overlapping consensus” on the essential components of justice with which all reasonable people would be expected to agree. While progressives differ on the specific features of this consensus, the dominant perspective is based on a theory of “public reason” which delineates the boundaries of what progressives consider to be reasonable, measured, and balanced interpretations of the demands of justice. Within those boundaries people are free to disagree on the meaning of justice, but perspectives falling outside the scope of public reason are by definition unreasonable and therefore not worthy of respect in a free society. David Gordon summarises the influence of public reason in progressive thinking as follows:
People in deliberating publicly should not appeal to their conceptions of the good, or at least not do so exclusively. Instead, they should rely on “public reason.” That is, they should appeal to neutral principles that everyone who shares the desire to reach agreement with others could reasonably accept. If they do, they will wind up endorsing Rawls’s own theory of justice. In what he calls an “overlapping consensus,” each person will find reasons within his own conception of the good to endorse Rawls’s theory.
This view of public reason implies that those who do not endorse progressive values are not just disagreeing with progressivism, but they are plainly being unreasonable. To the extent that libertarian or classical liberal perspectives fail to encompass a distributive role for the egalitarian state, they would not count as reasonable views from the standpoint of public reason thus defined.
Classical liberalism offers a different perspective. Classical liberalism prioritises free speech and open inquiry above the pursuit of equal socioeconomic outcomes. This allows us to agree to disagree on the meaning and demands of social justice—our moral vision of how society should be ordered—without automatically being deemed to be unreasonable, much less beyond the pale, simply for espousing a different moral ideology from egalitarian progressivism.
Classical liberalism does not of course hold equality to be unimportant, as equality before the law is central to the rule of law. Within the rule of law, fundamental rights and freedoms (life, liberty, and property) are prioritised as a prerequisite to true equality and justice. The philosophy of freedom in the classical liberal tradition therefore safeguards freedom of speech, thought, belief, and conscience.
As theorized by Sowell, the classical tradition also prioritises an objective search for truth, grounded in reality, rather than promoting any particular ideology or specific normative vision from which dissent is not permitted. The question then is not whether a particular view is worthy of respect by other liberals—who are after all also prone to error—but rather whether their assertions are true and whether they are supported by objective facts or objective tenets of reason and logic.
2. Social cohesion and agreeing to disagree
Social cohesion does not require that everyone must espouse the same moral ideology. The divergence between fashionable theories of racial justice and traditional classical perspectives is therefore not problematic in itself. After all, philosophers have always debated the meaning of justice and the tension between tradition and modernism is nothing new. However, such ideological disputes begin to pose a danger to social cohesion when egalitarian perspectives are taken to be the only reasonable way to understand justice, are given coercive force through legislation, and all other perspectives are dismissed as incompatible with liberal values. The attempt to corral everyone into supporting equity schemes designed to redistribute entitlements by enshrining them in legislation produces not more unity or consensus, but more disquiet and further polarisation.
While there is much common ground between progressive liberalism and classical liberalism, in one important sense the more extreme political positions popularly represented as “woke” and “anti-woke” are essentially irreconcilable. Those progressive liberals who would prioritise moral ideology and a vision of the world as it ideally should be, described by Sowell as a cosmic view of justice, will clearly not be swayed by arguments based on empirical testing or descriptions of human action as it actually is. In distinguishing between cosmic justice and the classical ideal of justice, Sowell writes: “What is crucial is not whether we agree or disagree with one or the other of these conceptions but that we clearly understand that they are mutually incompatible” (p. 153, original emphasis). Social justice activism is not merely a more evolved or nuanced version of justice, as some progressive liberals depict it. As Sowell states, “cosmic justice is not simply a higher degree of traditional justice, it is a fundamentally different concept” (p. 8).
Given this incompatibility, the prospects of persuading people to abandon their values and instead adopt entirely oppositional values that others consider to be more “reasonable” are limited. Legislating one side of an ideological debate, giving one perspective binding force and thereby declaring dissent to be illegal, does not resolve this difficulty but simply raises new and more pressing dangers of social discord. Unless those who disagree amongst themselves on the liberal values underpinning justice are to resort to secession and other forms of political fragmentation, they must find a way to agree to disagree and coexist in peace with those who espouse a moral ideology different to their own.
3. The Meaning of Justice and the Rule of Law
Debates about the meaning of justice lie at the heart of liberal philosophy, distinguishing progressives from classical liberals, libertarians, and many other permutations on liberalism. Hence, Sowell observes that liberal thinkers do not agree on how to define a just society: “Adam Smith and John Rawls each said that justice was the prime virtue of a society, and yet they said it in such different senses that they meant nearly opposite things” (p. 29).
Those egalitarians who take the view that justice ought not to be unduly constrained by human nature would not regard the human incentives which concerned Adam Smith, such as the idea of self-interest, as in any sense relevant to understanding the demands of justice. Further, they would regard Smith’s notion of justice as rather anaemic insofar as it fails adequately to prioritise the role of the state in wealth redistribution. Finally, they would dismiss Rothbardian interpretations which conceptualise justice as based on inalienable natural rights of self-ownership—life, liberty, and private property.
Sowell’s view of justice is that nature or reality “can neither be just nor unjust,” and that justice therefore ought to be conceptualised in the classical sense as due process: justice demands fair rules and impartial decision-makers rather than equal outcomes (pp. 8, 9). As I argue in my 2021 book Economic Freedom and Social Justice, justice as due process is now deemed to be insufficient for achieving racial justice:
The classical ideal of justice which underpins the rule of law in liberal democracies is blind, meaning that it treats everyone the same without fear or favour. Rights and liabilities are determined without regard to race or creed. But blind justice is insufficient for egalitarian progressives as it fails explicitly to recognise racial identity or other personal traits and characteristics protected by equality legislation. Blind justice is also criticised for failing to embrace expectations surrounding the group entitlements which confer special legal protection on the colour, culture, religion, opinions, or even physical attributes of racial minorities. Blind justice is denigrated for showing favour to those said to be undeserving of favour due to their “white privilege” (p. 10)
For these reasons, to assume that the meaning of justice is agreed and all we need to debate is how to achieve it would be a weak foundation for public policy. Instead, we must explicitly recognise that there is no agreement on the meaning of justice. Everybody wants justice, but we cannot agree on what justice means, what it requires, or which policies will best implement it.
Rather than promoting disputed notions of social justice the policy goal should be to strengthen the rule of law and the protection of fundamental rights, primarily the rights of life, liberty, and property. Quoting John Adams, Sowell defines the rule of law as “a government of laws and not of men,” with the following characteristics: “rules known in advance, applied generally, and constraining the rulers as well as the ruled’” (p. 151, original emphasis). If a society is governed by “general rules, known in advance,” the rules do not vary arbitrarily depending on what seems to be a “fair” outcome based on group identity: “rules equally applicable to all are not the same as rules with equal impact on all” (p. 152).
This implies that the scope of coercive law should be as limited and constrained as possible—the idea of the minimal state. Beyond the scope of coercive law (such as criminal law and civil obligations) people should be free to follow the dictates of their own conscience as concerns the demands of justice. For example, those who regard human nature, and reality itself, as a mere suggestion or starting point which can be surmounted by a political determination to “do better” are free to attempt this adventure in their own lives but not to force others to join in their experiment. As Sowell cautions, ‘”There is only so much divergence between prevailing theories and intractable reality that a society can survive” (p. 94). This divergence is manageable when people are free to follow their own moral precepts. But such divergence becomes destructive when ideological “do better” principles become binding law.
4. The costs of racial equity: diversity in employment
In analysing the interplay between liberty and equality many of the difficult cases arise in the context of employment. Much has been written concerning the demands of equality in employment, for example whether the workforce should reflect the racial demographics of the local population and whether pay and promotions should be equalised between different races. A point often overlooked in these debates is that demands for equal outcomes in hiring, pay and promotions also have implications for individual liberty—not just for the employer whose decisions are constrained but also for the workforce whose interpersonal relationships are increasingly regulated by “diversity and inclusiveness” policies.
It is in the workplace that people are most likely to encounter the excesses commonly referred to as “political correctness gone mad” and while these are often no more than inconvenient or even faintly ridiculous admonitions, they can also pose a serious threat to jobs and livelihoods. Anyone who reads the news will be familiar with examples of cancel culture and the risk of being fired for saying things which are not intended to be harmful but nevertheless cause some people to take offence. Equality legislation, particularly the notion of harassment which may include slights known as microaggressions, cannot achieve its goals without at the same time eroding individual liberties such as free speech. One example will suffice here, i.e., the case of a Nobel prize winning scientist, Sir Tim Hunt, who was denounced and saw his career severely impacted over a joke he made about women in a conference keynote speech:
“Let me tell you about my trouble with girls. Three things happen when they are in the lab. You fall in love with them, they fall in love with you, and when you criticise them, they cry,” he told delegates.
One response to a situation like this might be that even if it is true that equality policies erode free speech, it remains the case that diversity and inclusiveness are so important for society that it is worth sacrificing some individual liberty to achieve that goal. That view would see equality as a higher value, meaning that any price to achieve it is worth paying. In the example cited above, the argument would be that losing the contribution of a leading scientist is a price worth paying to encourage more women to feel included in science—we will ultimately gain more than we lose. No single individual is irreplaceable, after all, and one person from a privileged group being fired may be worthwhile to safeguard the feelings of a minority group. This argument merits closer attention. As Sowell asks:
What of those who do not reject the cost as too high? Do they simply have a different assessment of those costs and risks? Or do they proceed with little or no attention to that question? (p. 7)
It is one thing to weigh the costs explicitly and decide, perhaps based on a democratic vote, that the cost is worth paying to achieve the designated social justice goals. Nevertheless, this is not what we witness as more and more equality legislation is rolled out with new categories of protected groups. What tends more often to happen is that anybody questioning the costs risks the accusation of being motivated by hatred for their fellow human beings. Law reform thus proceeds purely by reference to the worthy social justice goals to be pursued, rather than a cost-benefit analysis.
The key point to make, therefore, is not that equity policies are wrong—on that there is room for debate and opinions will vary. The key point is that the costs of such policies should be taken explicitly into account in deciding whether the policy ought to be implemented. Sowell’s argument is that choosing to pursue any favoured social goal without regard to the cost is guaranteed to provoke dissent, division, and discord. Ultimately it is the threat to social cohesion that offers the most pressing and urgent imperative for taking a rational approach to the social justice debates. As Sowell puts it, “the costs of achieving justice matter”:
“Justice at all costs” is not justice. What, after all, is an injustice but the arbitrary imposition of a cost—whether economic, psychic, or other—on an innocent person? And if correcting this injustice imposes another arbitrary cost on another innocent person, is that not also an injustice? (p. 28)
Costs are not merely financial. Cost-benefit analysis is not just a question of money. As Sowell highlights, costs also include the fact that “preferential treatment for one segment of society” causes society to “become more polarized and contentious” (p. 10). Costs also include “what we are prepared to do, to risk, or to sacrifice, in pursuit of what can turn out to be a mirage” (p. 51). Costs also entail “both social strife and the loss of individual freedom” (p. 157). Ultimately, costs also may include undermining the rule of law: “Perhaps most insidious of all, loss of confidence in the law and the courts undermines civic morale and the cohesiveness of society in general” (p. 160).
5. Inequality: What Can Be Done?
Finally, the question must be considered as to what ordinary people can do to pursue their economic goals without demanding special group-based rights, legislative and policy favours, or embarking on political protests with the aim of radically reforming institutions. This is where Sowell’s grasp of economics yields the most value. In his book Inequality: What Can Be Done?, Anthony Atkinson proposes government redistribution as the best way to address inequality. Sowell would disagree. Modern societies are complex and differentiated, and no government has sufficient knowledge of market transactions to direct resources in ways that will achieve “just” outcomes without at the same time undermining productivity. History shows that free markets based on voluntary exchange, while not perfect, outperform government redistribution as a path to prosperity for racial minorities.
This is yet another reason to defend individual rights and economic freedoms. Individual liberty played a formative role in the historical development of the legal systems governing market societies such as the US and the UK. It is often supposed that we can keep our freedom and prosperity while also eroding individual liberty. History shows that this is not possible. Eroding individual liberty inevitably has a destructive impact on free and prosperous societies.
This is not to say that individual freedom should never be sacrificed. Sometimes individual freedom must give way to more pressing social goals, the containment of a pandemic being the most recent example. The point is, rather, that individual liberty ought not to be sacrificed without a careful assessment of the costs to be incurred and the benefit to be gained, and such an assessment is not properly being done in relation to the goals of equality.
Coercive wealth redistribution erodes property rights. Sowell argues that property rights matter for society as a whole, not just for those who have great material wealth. The idea that a disadvantaged group can ground economic progress in the erosion of property rights, in an attempt to dismantle “privilege,” is short-sighted. Sowell writes:
Just as freedom of the press does not exist for that tiny minority of the population who are journalists, so property rights do not exist for the sake of those people with substantial property holdings. […] A free-market economy is as much dependent on property rights as the political system is on free speech rights. (p. 164)
In free societies market participation plays the dominant role in shaping socio-economic outcomes. Society as a whole benefits from encouraging cooperation through voluntary exchange. As Walter Williams argues, “free-market resource allocation, as opposed to allocation on political grounds, is in the interests of minorities and/or less-preferred individuals” (Race & Economics: How Much Can Be Blamed on Discrimination?, p. 1). Williams shows that long-term sustainable progress for racial minorities has historically been determined by market participation and a good old-fashioned hard slog, not through lobbying for political power, favours, and special welfare programmes. This does not of course mean that free markets are perfect and never exhibit failures—it means that there is no justification for attempting to correct economic inequality by institutionalising preferential treatment for marginalised groups, thereby creating new injustices and eroding the foundations of liberal institutions.
Wanjiru Njoya is a Senior Lecturer at University of Exeter Law School and a Fellow of the UK Higher Education Academy. Her most recent book is Economic Freedom and Social Justice: The Classical Ideal of Justice in Contexts of Racial Diversity, published by Palgrave Macmillan, 2021. Her academic publications, which focus on individual liberty and the classical ideal of equality in the common law tradition, may be found listed here. She maintains an active Twitter account.