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Frank van Dun
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Journal des économistes et des études humaines, V4, 1995, 555 - 573
Liberty and Justice
Abstract
Hayek's provocative thesis, that social justice is a mirage, stands as a formidable challenge to the social democrats' claim that the sort of redistributive policies commonly practised in today's welfare states are sanctioned by the appeal to a coherent, philosophically defensible concept of justice. In an effort to meet the challenge, the English philosopher Raymond Plant has recently tried to reduce to 'insubstantiality' Hayek's arguments against the notion of social justice. This paper answers Plant's objections point by point, thereby clarifying the traditional liberal notions of justice and liberty underlying Hayek's critique.
In a recent paper Raymond Plant, presenting himself as a spokesman for the social democratic Left, subjects Hayek's account of the illusionary nature of 'social justice' to critical analysis. His conclusion is that Hayek's "grounds for rejecting the idea of social or distributive justice as an illusion or a mirage are insubstanstial." (p.164) To press home the significance of this conclusion, Plant asserts that Hayek's arguments "constitute the most searching criticism of the much invoked idea of social justice" (ibid.). Consequently, we are asked to accept that the most searching criticism of social justice is insubstantial, and, by implication, that there is no reason for the Left not to continue to insist on the cogency of that idea, the " central value in their political philosophy" (ibid.). Social justice, Plant insists, is or should be the philosophical basis for any defence or advocacy of redistribution by political (i.e. coercive) means in the context of the welfare state.
What follows is a critical commentary on Plant's analysis. Although Plant explicitly directs his arguments against Hayek and the Hayekians, I shall not attempt to defend either Hayek or any Hayekian; nor shall I stop to check whether Plant's account of Hayek's position is accurate in each and every respect. Instead I shall concentrate on Plant's attempts to reduce to insubstantiality the liberal conceptions of liberty and justice which, as he admits, are the pillars that support Hayek's critique of social justice.
A preliminary remark is appropriate here. The liberal critique of the concept of "social or distributive justice" only concerns its use in a political context - i.e. it concerns the concept of social justice in a strict sense, not the concept of distributive justice in general. The liberal argument is not that there is no cogent conception of distributive justice, but that there are too many. There is no objectively or intersubjectively conclusive argument for deciding which of these to a greater or a smaller extent incompatible conceptions is "better". Consequently, as a practical proposition social justice is one of those questions which will be settled in the political arena, where they are likely to be "solved" (if at all) by a struggle for power. That is why, from the liberal point of view, such questions are to be subordinated to the non-distributive laws or abstract rules of justice, in particular those relating to property. Each person occasionally finds himself in the position of a distributor: benefits and burdens have to be distributed by parents among their children, by teachers among their pupils, by managers of a firm or organization among their employees, customers or members, by philanthropists among the many charities knocking at the door; married couples planning their 25th wedding anniversary may agonize over such distributive questions as which of their relatives and acquaintances they should invite and who to seat at which table. There is no political problem here because these people are all considering the distribution of their own property, or the property they have been commissioned by the owners to distribute. The liberal critique only concerns the idea of social justice in the sense of a scheme or rule for distributing the property of others without their consent.
In the following section I shall consider Plant's discussion of justice. Then his treatment of liberty will come under scrutiny. Finally I shall turn to Plant's discussion of the consistency of Hayek's critique of social justice with his positive views on the state.
As Plant summarizes Hayek's view of justice, "injustice only occurs when one person intentionally interferes with the life of another without that person's consent" (p.165). Although Plant does not mention it, this definition of injustice is clearly ambiguous. It can mean either 1) that there is injustice only when by an intentional act one person interferes with the life of a non-consenting other, or 2) that there is an injustice only when a person acts with the intention to interfere with another's life and in fact interferes with it in the intended way. The difference between (1) and (2) is too obvious to ignore, especially if we consider that the interference is usually thought of as harmful to the person concerned. It is one thing to intend to cause harm to another and to inflict the intended harm on him; it is another thing to commit an intentional act which causes harm to another (although it was no part of the intention of the agent to cause any harm, or that particular sort of harm).
Plant apparently assumes that Hayek means the second interpretation, i.e. that the harm suffered by the other person is the harm which the agent intended to inflict, and in fact did inflict on him. It is doubtful that this is what Hayek meant. However, be this as it may, it is arguable, that neither the first nor the second interpretation characterizes a distinctly liberal conception of justice. I submit that the liberal conception of justice is rooted proximately in a particular conception of the legal institutions of private property, contract and personal liability, and ultimately in their foundation in the nature of man and the conditions of social existence in a world of scarce material, intellectual and emotional resources. Thus in order to find a liberal conception of justice and injustice, one should look at the way in which a recognizably liberal social order would actually decide questions of justice in its law courts. It would then appear, I suggest, that for most liberals injustice occurs when a person by an intentional act interferes with the life of a non-consenting other, if and when the interference infringes an originary natural or a consequent conventional or contractual right of the other (e.g. by inflicting bodily harm, destroying or taking away his property either by direct action or fraud).
On this view, there is not necessarily any injustice even when one person harms another by an intentional act, e.g. when the act does not infringe a right held by the person suffering the harm. On the other hand, there may be injustice even though the harm suffered by the other was not part of the intention of the agent, as e.g. when the act that unintentionally caused the harm does infringe a right of the other. Most of what people do is at once intentional under some description, and at the same time harmful in some way to one or more others. This is particularly so with regard to competitive behaviour, on the marketplace or elsewhere, when the context of action is characterized by some relevant scarcity (of resources, goodwill, attention, or what not).
Plant is anxious to undermine Hayek's conception of justice because it seems to justify the conclusion that market outcomes, being the unintended results of countless actions by countless individuals, are logically outside the scope of judgments of justice or injustice. It is easy to see that if we substitute the traditional rights-based conception of justice for the narrower 'Hayekian' conception discussed by Plant the same conclusion follows. Therefore we have to see if Plant's comments on Hayek also apply to the traditional liberal view of justice.
Plant deploys two distinct arguments against Hayek's view that the concept of justice does not apply to market outcomes. The first is that Hayek's conception of justice is logically defective; the second that Hayek's view is counter-intuitive. Let us consider these criticisms in turn.
Plant's first argument relies on the extremely narrow conception of justice he ascribes to Hayek. His central claim, contra this conception, is that "[i]n everyday life when we are assessing the degree of responsibility for our actions we are usually held to be responsible not just for their intended but also for the reasonably foreseeable results of actions. If this were not the case there would be no such crime as manslaughter for example" (p.170) Fair enough, but it is remarkable that Plant should ascribe to a liberal such as Hayek a conception of justice that would rule out any sort of (if necessary, forced) restitution or compensation for an infringement of one's rights, merely because the resulting harm was not part of the intention of the act that caused the harm. Why does Plant make this preposterous claim (which, if true, would certainly undermine his assertions about how seriously one should take Hayek's challenge to the notion of social justice)? The reason is that he wants us to swallow the following chain of arguments:
[A) Plant's version of Hayek's argument:]
1) According to Hayek only the intentional infliction of harm is contrary to justice;
2) but market outcomes are the unintented results of human action;
3) therefore the concept of injustice does not apply to market outcomes, no matter how harmful these may be.[B) Plant's critique of the foregoing]
1) Often enough we hold people responsible (even legally liable) for the harm they unintentionally cause, e.g. when the harm is reasonably foreseeable; i.e. in many cases foreseeability of harm, and not intentionality of harm is sufficient to bring the concept of injustice into play.
2) Therefore Hayek's conception of injustice (cf. A1) is too narrow and it cannot carry the weight Hayek thinks it does in his critique of social justice.[C) Plant's attempt to rescue the social democrat's case for social justice]
1) Market outcomes are 'broadly foreseeable'.
2) Foreseeability of harm is at least sometimes sufficient to make the concepts of justice and injustice applicable (cf. B1)
3) Therefore, 'it can be argued' that the concept of injustice applies to market outcomes, even if it is admitted that they are unintended.One sees that the weight of this series of arguments is carried by the move to substitute 'foreseeability' for 'intentionality' as a touchstone for the application of the concept of justice. This is supposed to knock down the Hayekian conception of justice, and to clear the way for the proposition that it is not conceptually improper to condemn market outcomes as unjust. However, the outline given above obscures a weak link in Plant's argument. After having made his remark about manslaughter, quoted above, he writes: "...it can be argued that in the case of markets, while their results may be unintended, this does not absolve us from the moral responsibility for the outcome if those outcomes were in fact reasonably foreseeable." (p.170, emphasis added) Note the shift to the concept of moral responsibility. This is not as innocuous as it may seem. Specifically, talk about moral responsibility does not always raise questions of justice. A person may be morally responsible for the harm he himself suffers, but in a legally or politically relevant sense of the word he is not the victim of an injustice. More generally, it is one thing to argue, say, that manslaughter involves an injustice and therefore the question of moral responsibility arises; it is another thing to argue that where there is moral responsibility questions of justice arise. As we shall see below, Plant tends to drift into the latter line of argument, thereby reducing questions of political philosophy (e.g. whether there is an injustice and so a valid reason for resorting to force or coercion as an ultimate remedy) to questions of moral philosophy (e.g. whether someone is to be blamed for doing something, or whether some condition is to be sought as a good, or to be avoided as a bad). In a discussion of a liberal political theory, one should not do that without extensive argumentation, because by the traditional liberal 'neutrality thesis' a moral judgment is never in and by itself sufficient to found a political (legal or constitutional) judgment.
It should be obvious that on the traditional rights-based liberal conception of justice presented above, it is not the foreseeability of harm per se that is relevant for deciding whether there is an injustice or not. What is relevant is whether the harm arises in consequence of an infringement of someone's rights. Suppose a man has invested all or most of his resources in a campaign for political office. Then his opponents succeed in getting a very popular figure to enter the race, thereby wiping out the first man's chances to win, as well as his chances of getting back what he invested. We may suppose that defeat entails serious financial and perhaps even psychic harm for the first man and his supporters, and moreover that the harm is as certain (and therefore as foreseeable) as human affairs can be. Even so there is no injustice in entering the race against him - not unless he should have the right to decide either who shall run for office or how the voters shall vote. If he chose not to insure himself against the risk of losing his investment, the liberal will refuse to make either the public at large or his direct opponent(s) liable for his losses. This point about the assumption of risk is particularly ŕ propos in connection with foreseeability. For foreseeability cuts both ways. If either the public at large or a particular opponent is held to be morally responsible (and therefore, according to Plantian logic, legally liable) for the candidate's loss because the harm he suffers in defeat was foreseeable, then the candidate himself or his staff could have foreseen the harm as well as the conditions under which it might materialize. What consideration blocks the inference that by choosing to run the risk of the foreseeable harm, the candidate actually absolves all others of all liability?
Plant gives no attention at all to these considerations. So impressed is he with his discovery of foreseeability as a link between questions of justice and market outcomes, that he confidently asserts that a Hayekian can only escape from the conclusion of his argument by a definitional sleight of hand: "Hayek might well claim that we can only be morally responsible for the foreseeable outcomes of our actions if the consequences are foreseeable in respect of identifiable individuals rather than groups such as the worst-off 10 per cent in society". (p.170) But this will not do. As we have just seen, foreseeability is not the clincher Plant suggests it is. Moreover, the quote illustrates the disingenious shift from considerations of justice to considerations of 'moral responsibility'. Yes, the popular opponent is in a sense and to a degree morally responsible for the harm suffered by the first candidate. But where is the injustice in defeating another in an election? Yes, the inventors, manufacturers, buyers and users of automobiles are in a sense and to a degree morally responsible for depressing the economic and social standing of buggy-makers. But the relevant question, in a discussion of social justice, is whether they are liable for the market losses suffered by the latter, and whether they can in justice be forced by a politically imposed redistributive policy to pay compensation to them.
In any case, if moral responsibility is the issue (rather than legal responsibility or justice), Hayek - and most other liberals - would certainly point out that the first question to be raised in connection with the assignment of responsibility is not whether those who are affected by some action are identifiable, but whether those who actually performed the action are identifiable. As far as I know no liberal claims that one who mixes poison in a water-supply system is not morally or legally responsible because the consequences of his actions are not 'foreseeable in respect of identifiable individuals'. Or, to take an example that is closer to Plant's social-democratic concerns, consider the fate of the buggy-makers in the era of the automobile. Liberals may grant - or so we shall suppose for the sake of the argument - that the automobile-enthusiasts could reasonably have foreseen the harmful consequences of their actions for the buggy-makers. Still a liberal would oppose a redistributive policy in favour of the buggy-makers. Why? The classical liberal answer is that the buggy-makers have no right to control the transportation-expenditures of their clientele, and so do not suffer a legally relevant harm if that clientele does its shopping elsewhere. However, if we were to follow Plant, the answer would have to be that the automobile-enthusiasts could not have foreseen how the market would affect identifiable individual buggy-makers. But often enough, there is no doubt about who caused the economic standing of another to worsen - as in a small village, where the enterprising youngster who sets up a garage drives the buggy-maker out of business. Plant appears to be saying that in that case the liberal has no option but to concede that the younster and/or his customers ought to compensate the buggy-maker (supposing the latter's plight to be a foreseeable consequence of the others' actions). But this conclusion is absurd; ergo Plant's argument is faulty, either in its logic or in its premises.
What is perhaps most amazing - and annoying - is the way in which Plant avoids a confrontation with the moral philosophy of liberalism. For a liberal a person can only be held responsible for [the results of] his own actions, not for those of others. This, in my view, is really the heart of the controversy between liberals and social democrats - the morality of holding persons responsible for their own actions versus the morality (if one may call it that) of holding persons responsible for what others do.
Plant merely evades this issue in a most awkward way. For not only does he misrepresent the liberal position, he also inadvertently concedes an important point concerning his (or the social democrats') political agenda: that it has less to do with justice as a relationship among persons than with the political uses of statistics. To be frank, I do not know what to make of the statement that I am to be held morally responsible for the foreseeable outcomes of my actions 'if they are foreseeable in respect of groups such as the worst-off 10 percent in society'. As far as I know, 'the worst-off 10 per cent' is a statistical contruct, and unless the statistician who constructed it reveals to me its inner secrets, I do no not know what he is talking about. Is he a cosmopolitan for whom society is the global human economy, or is his 'society' merely a database in the National Bureau of Statistics? Is 'the worst-off x percent' a group in any real sense? If so, is it a group of identifiable individuals? Does 'worst-off x percent' refer to a particular moment in time, an extended period, or to an evaluation of the life-time of each and every individual? Does the statistic take account of why people satisfy a particular statistical criterion? And so on, and so on. If to be morally responsible one has to satisfy Plant's statistical requirement, moral responsibility becomes an impossibility - even for the government, unless one assumes (as a social democrat is wont to do) that it is within the powers of government to manufacture the facts that would yield the desired statistics.
So far, I have said nothing about Plant's claim that market outcomes are 'at least broadly foreseeable'. In fact, this claim is so vague as to be virtually meaningless. Any attempt to make it specific renders it false - one only has to look at the comedy of errors that goes under the name of econometric prediction, or at the endless stream of conflicting reports concerning the economic prospects of professions, occupations, industries, regions, countries and so on, produced by legions of investment consultants, planning bureaus, national and international agencies of various stripes and colors. I do not deny that 'it can be broadly foreseen' that markets will not eliminate inequalities (which is what really bothers Plant) - but then 'it can be broadly foreseen' that no economic system, including a social democratic 'mixed economy' or a socialist 'planned economy', will do so.
Plant does not even try to justify his claims concerning the foreseeability of market outcomes. Instead, he merely argues that unless market outcomes are broadly foreseeable, "market defenders would in fact deny themselves the opportunity of explaining why markets should be extended." (p.169) It cannot be denied that many liberals hold markets and their gradual extensions to be beneficial (i.e. more likely to raise than to depress the standard of living for those who participate in it), and have accordingly predicted that future extensions of markets will be similarly beneficial. However, statements of this sort have little or nothing to do with the foreseeability of market outcomes, as they belong in a 'comparative systems'-discussion. One instance is Hayek's critique of socialism as a system that denies people access to, as well as the opportunity to act on, relevant information or 'knowledge'. The contrast is with a system or political regime that does not interfere with the 'abstract rules of justice' that make a free market economy possible. Other examples are to be found in discussions of the wide range of opportunities for rent-seeking in mixed economies compared to a system where all subsidies are voluntary gifts, and all participants in economic transactions are fully responsible and liable for the justice of their actions.
Thus, Plant is mistaken to assume that he can foist his thesis of 'the broad foreseeability of market outcomes' on the liberal political philosophy. There is no argument anywhere in the liberal political philosophy that turns on the ability to predict the socio-economic fortunes of any particular group or statistical cross-section of the population.
Plant has a second objection against Hayek's denial of the applicability of the concept of justice to the unintended outcomes of market processes. In fact, he argues that in some sense the concept applies even to the outcomes of natural impersonal forces. The argument is, that "the question of justice or injustice seems not to be settled only by determining how a situation arose, but also by our response to that situation." (p.170) His example is of a very frail elderly lady who is blown over by the wind, and falls down unconscious, her head in a gutter full of water. "From a Hayekian point of view, if I fail to rescue that person at no cost to myself, I have not committed an injustice since that person was put into this potentially fatal position by an impersonal force." From the Hayekian point of view, it will only be conceded that there is a "failure of benevolence" (p.171). Plant finds this Hayekian view "counter-intuitive", but gives no other argument than "I think that most people would agree..." Well, I for one do not agree. Nor do I think that if the case came before a court of law the relatives of the old lady could successfully sue for damages (unless, of course, there was a 'special relationship' between the lady and the other party, or the political authorities in control of the courts had instructed them by a specific criminal law to punish 'morally outrageous' behaviour of the sort described in Plant's example).
Perhaps Plant's intuition merely reflects his conviction that such a heartless fellow should be made to feel sorry for his actions. One can share that conviction without committing oneself to the position that the only way to make a person feel sorry for his actions or to teach him some manners is to subject him to legal punishment.
Apart from this, it is not obvious how Plant's intuitions help to bolster his case for social justice. It is not that he does not try: "If the analogy (of the frail person blown over by the wind) is cashed in on a social level it would mean that questions of justice arise when some are made poor and destitute by the impersonal operation of the market and in which [sic] there are courses of action open to the government which it refuses to take to rectify their position." (p.171) Surely, this is to stretch the analogy, at least if the issue is social justice and large-scale redistributive policies. 1) Would Plant say that the passer-by would have acted justly if instead of helping the victim himself he had in the grand governmental manner pulled a gun on a third party to force him to help the old lady? 2) In order to forestall an obvious objection, Plant had to assume that the passer-by in the original story was able to help the elderly victim of the wind at no cost to himself. Now, even if the government could help the destitute "at no costs to itself", it is hard to see how it could do so at no costs to others. It is difficult to avoid the impression that Plant is again blurring the distinction between morality and law in an effort to move from the premise that it is morally wrong to behave in this or that way to the conclusion that one particular party (the government) has a right - nay, a duty - to use coercion to prevent people from behaving in such a way. But if morality is thus supposed to dominate politics, what reason could there be for a moral philosopher to oppose the conclusion that everybody has a duty to enforce morality?
Predictably Plant challenges Hayek's argument that liberty has to be understood as essentially negative. Such a conception inter alia implies that intentional coercion by another, but not e.g. a lack of resources, limits a person's freedom. Plant ascribes to Hayek the position that being free to do something is categorically different from being able to do it. He then attempts to refute this position, in order to make the case that "the state, which on the liberal view should seek to protect a fair value for negative freedom, should also be involved in securing a fair distribution of those resources and opportunities which relate to those abilities which are necessary conditions of free action." (p.173) The implication is, that if this attempt succeeds then the social democrat, and not the liberal, emerges as the true champion of liberty.
While 'negative' freedom is a fairly unambiguous concept, there are many conceptions of 'positive' freedom. Plant of course wants to clear the way for a conception of freedom that allows the social democrat to say that a person without sufficient resources is not free. However, he chooses to talk about abilities rather than resources.
Before considering Plant's arguments against 'negative' freedom, we should note that in ordinary speech, the words 'freedom' and 'free' appear in a number of different uses. Let us consider three of them. The first and most common one occurs in expressions such as "Are you free tomorrow?", "I am not free to accompany you because I am expecting a visitor", and "He is not free to see you now because he is preparing for his exams". To be free here refers to the absence of some kind of obligation either to oneself or to another. This use obviously has meaning only when the reference is to moral subjects, persons.
The second use is typical of, but not restricted to, in a broad sense political discussions: "The slaves/prisoners were set free", "They were fighting for their freedom against the occupying forces", "The proponents of free enterprise were outnumbered three to one". This use is clearly related to the former, but whereas in the former case one is not free when one is under an obligation, in this case one is not free when one is obliged or forced or coerced to do something. Often used with reference to human beings, it can also be found when the reference is to animals, natural forces, even inanimate objects, in fact to anything that can be contained by force or threats. Thus, to say that a person is not free (in this political sense) is to say that he is not treated in a way that is proper to a moral subject: one treats him more or less as one would treat a mere thing.
The third use simply has the meaning 'without', and is found in expressions such as "oxygen-free", "free of charge", "free of sin", "free of imperfections", "freedom from want, hunger, disease".
Dictionaries will give as synonyms for free: self-reliant, independent, sovereign, autarchic, autarkic, autonomous, separate, unattached, loose, clear, open, openhanded, liberal, guiltless, innocent. Etymologically, freedom is related to peace, love and friendship, belonging to a group of friends or relatives, and to gentleness or mildness.
Except in a way to be mentioned in a moment, there is no indication anywhere in this set of linguistic data that 'to be free' means or implies 'to have ability' or 'to possess resources'. It is unlikely that a competent speaker of the English language (who is not a political philosopher with an axe to grind) would say such things as "I am not free to go to the movies because I have no money" or "He is not free to go mountainclimbing because he broke his ankle". It is true that the first use of the word 'free', and the second use in its distinctly political applications, make sense only when applied to human beings who do have characteristic abilities and resources (the human body and its natural faculties). However, in admitting this one does not concede any point to Plant. He does not say that the question whether x is free or unfree logically presupposes that x is a human being with characteristically human abilities. Instead he argues that the question whether one is free to do x makes sense only if there is a general (or generalized) ability to do x. What he means by 'a general ability' he does not say. We have to infer it from his statement that "because in the eleventh century there was no generalized ability to fly aeroplanes, the question whether people were at that time free [to fly aeroplanes] did not arise". This clearly indicates that for him a 'general ability' is nothing like a natural ability or faculty that we expect to find in any human being who is sound of body and mind, whether living in the eleventh century or in the present. What he means is, that we can only make sense of the question, whether A is free to do x, if either A or someone else in A's society has the ability to do x.
In order to evaluate this proposition, let us see how far Plant's medieval aeroplanes will take us. We should note immediately that the question, say, whether one is free to use artificial means to soar through the air like a bird, would have made sense even long before the eleventh century. And if it was raised, the evasive reply that there are no such artificial means of bird-like flight would no doubt have been met with a remark like this: "But suppose an artificial flying machine were available, would it be wrong to use it, would it be against the laws of God or the King? - that is to say, would we have a duty or obligation not to use it, or would we be obliged to abstain from its use?" Not only would the question have made sense, it might well have been possible to answer it with a clear 'yes' or 'no'. This counterexample - which takes the word 'free' in its ordinary sense - clearly shows that Plant's objection goes nowhere.
So what remains of Plant's attempt to 'cash in' on his "generalized ability"-thesis? He writes that "if there is a general set of abilities and opportunities in society which poverty prevents an individual from realizing, then this can be regarded at least as a potential restriction on [his] liberty." (p.172) Presumably he means that there are things a poor person cannot do (because they are too expensive) which a rich man can do. Now this is merely to say that not everything is available free of charge, or that scarcity is a fact of life. If poverty were a restriction of liberty, we should consider almost any ability or opportunity which some but not all persons have to be restrictive of liberty: for it is a fact that smart, industrious, experienced, informed, prudent, risk-taking, sociable, well-connected, or imaginative people, or people who merely happen to be in the right spot at the right time, can do things which one who lacks all or some of these qualities cannot do. Is, then, the fact that the constitution of the world is what it is a limitation on our liberty and an injustice?
Plant has not refuted the position he ascribes to Hayek, that to be free to do something is categorically distinct from being able to do it. That position is after all logically independent of the thesis - which Hayek does not deny - that the concept of liberty applies only to beings naturally endowed with the sort of abilities or faculties that we associate with persons or moral agents as such. We can be free to do something which all of us are as a matter of fact unable to do; but it is nonsensical to bring up the issue of either moral or political liberty with respect to something that is not a moral agent.
The failure to recognize the distinction between these two theses forces Plant into a remarkable interpretation of the issue of "basic needs or primary goods which have to be satisfied [sic] before a person can in fact exercise freedom." (p.173) Because he explicitly draws a distinction between a Hayekian "safety-net against destitution defined in terms of some sort of basic needs" and "the social democratic project of using the fiscal dividends of economic growth to create greater social and economic justice or equality" (cf. p.168), one might be tempted to think that the appeal to basic needs and primary goods can only support the Hayekian argument. But this is not what Plant wants us to think, because the safety-net has nothing to do with social justice, but only with preserving a person's capacity to function as a free moral agent in a free society. Instead he wants us to link the concepts of basic needs and primary goods to his conception of freedom according to which 1) a person is free to do something only if he is able to do it, and 2) a person is unfree if he cannot do what others in his society have the ability to do (as in that case he cannot do x although there is some sort of 'general ability' to do x). In plain language, keeping up with the Joneses is a basic need, and liberty is having the means to do so!
Plant raises two further objections against Hayek's critique of social justice, one addressing Hayek's conception of the Rechtsstaat, the other his conception of the social safety net. The first is that Hayek cannot consistently maintain 1) that in the attempt to enforce social justice rights and entitlements to scarce resources (such as health care and education) would have to be conferred on individuals by the government in what inevitably is a discretionary way, incompatible with the rule of law, and 2) that this sort of arbitrary or discretionary government is avoidable in a Rechtsstaat. The argument is that "the enforcement of the rule of law is something which consumes resources - the police, courts, prisons, and so on". Therefore, says Plant, "exactly the same questions of resource allocation arise and along with that the role of discretion." (p.175)
This seems to be a fair and appropriate criticism of Hayek's position. But do we have to admit that Hayek inconsistently denies the cogency of the idea of social justice and applies the concept in formulating his idea of the Rechtsstaat? It would seem that we do not have to do this. It could still be true 1) that there is a restricted domain (e.g. law enforcement, or the provision for really basic needs) where the concept makes sense - even if Hayek did not explain why that should be so - but 2) that it fails to make sense when applied across the board to all sorts of scarce resources. I shall return to this possibility in a moment.
On the other hand, if we do admit that there is an inconsistency here, we should note that within the liberal tradition itself a radical libertarian stream of thought exists that has resolved it, long before Hayek appeared on the scene, without invoking the idea of social justice in any way. This approach took the form of a critique of the state as a monopolistic provider of "defence" who maintains his monopoly by force or fraud. What these critics emphasize is not the Plantian inference that even a liberal needs the concept of social justice, but rather its opposite, that even the mainstream idea of the Rechtsstaat is incompatible with the rule of law. This criticism has to be understood against the background of the traditional distinction between 'the state of peace' (i.e. society in 'normal times') and 'the state of war' (times of crisis when there is clear and imminent danger of a complete breakdown of social order). In a state of war, there is no recourse to be had to the institutions of the rule of law, but only to the laws of the jungle or the instinct of sef-preservation unencumbered by considerations of mutual respect or civility. Kingship, military organization and the discipline of the barracks are familiar responses to times of crises. Modern political theory in the West, shaped by the experience of such times (Macchiavelli's Italy, Bodin's France, Hobbes's England), more or less reversed the order of peace and war, by taking war to be the normal, indeed, the natural condition of mankind. It subordinated the requirements of peaceful society to those of the state, i.e. of institutionalized preparedness for war. It is within this intellectual and historical context that modern liberalism developed, mainly as an endeavour to accomodate the state to the requirements of peace, but in its more radical manifestations also as an endeavour to deny the legitimacy of all appeals to 'the principle of war'. Peace being the right order of society, rights can only be founded in the requirements of peace, whereas war or crisis indicates the crossing into a realm of brute necessity that knows no law. Mainstream liberals have often rationalized the state as a necessary evil, an injection into the social body of a controlled amount of the principle of war to forestall the danger of an uncontrollable fatal infection. Radical liberals and libertarians, on the contrary, tend to see the state as an institutionalized commitment to the principle of war that actually prevents the development of the institutions of peace, or what the ancient Sophists called "the social skills of justice". In their view, the mainstream idea of what came to be known as 'the minimal state' and 'the Rechtsstaat' is pernicious because it legitimizes the principle of war and entrusts the care for the institutions of peace to an institution that in its origin, organization and mode of operation stands for the denial of peace.
Let us now return to the problem raised by Plant: that a theory of the Rechtsstaat requires a conception of social justice if it is to be capable of addressing the problem of allocating resources to enforcement of the rule of law. As we shall see, it does not bring any solace to those who claim that the idea of social justice is cogent as an independent principle of justice. The reason is that a great many liberals who defend the Rechtsstaat (and possibly Hayek as well) merely do so on the ground that it is an evil, reluctantly conceded to be necessary, to be kept within strict bounds lest it grows into an unnecessary evil. As an evil, the state, even the Rechtsstaat, is no source of positive normative principles. Rather, it must be made subservient to society (i.e. the spontaneous ordering of human interactions under conditions of peace) by wielding its force according to the rule of law, in particular the principle of equal rights: each person has the same basic or natural right to live by his own means, no person has any right to interfere with another's rights without the latter's consent. In respect of the state as the monopolistic institution called upon to enforce the rule of law, this principle of equal rights implies a rule of distributive or social justice: "the state owes equal protection under the law to all", a rule Hayek accepts. This falsifies Plant's conclusion, that "Hayek, in rejecting social justice, has nothing to say about the allocation of resources which are necessary to protect the rule of law." (p.175) Note that this rule of social justice is here presented as an implication of the requirements of (commutative) justice, assuming it to be "necessary" that the enforcement of the rule of law is entrusted to a coercive monopoly. Thus, one can reject the idea of social justice as not having any cogency of its own, and yet formulate a rule of social justice with respect to peculiar circumstances where it is derived from a non-distributive concept of justice.
Of course, the foregoing argument merely deals with the distributive aspect of law enforcement in a Rechtsstaat. It does not deal with the level of enforcement, that is with the total quantity of resources to be allocated to law-enforcement (after having been confiscated by taxation). The interpretation of the state as a necessary evil merely indicates that taxation should be restricted to a minimum level, but it hardly says anything about where that minimum lies. In this respect, Plant uncovers what to all appearances is a serious flaw in Hayekian liberalism. The same flaw vitiates the Hayekian doctrine of the social safety net: how high above the level of total destitution or immediate danger of starvation should it be raised?
Of course, Plant cannot (and does not) draw any argument regarding the cogency of the idea of social justice from this flaw in the Hayekian doctrine. At most one could conclude that if the state is to be seen as an institution of justice, that justice cannot be a non-distributive sort of justice, even if the state is a Rechtsstaat, or a minimal state, or a minimal welfare state. But this argument cuts both ways: it burdens those who maintain that the state is an institution of justice with the task of providing a cogent idea of social justice; and it forces those, like Hayek, who reject the idea of social justice, to admit that their topical political recommendations (e.g. on the level of law enforcement, or the extension of a social safety-net) are basically arbitrary, in the sense of being at best founded on particular value-judgments and appraisals of particular causal connections, rather than on solid philosophical principles of justice. As far as the latter are concerned, the rejection of the idea of social justice appears to lead either to philosophical anarchism (if one starts from the premise that peace is the 'normal' condition of mankind), or to an unprincipled positivism that equates justice, whether distributive or not, with whatever discipline is enforced by the powers that be.
We have followed Raymond Plant's cautious efforts to provide some hope for the Left's social project (in sofar as it seeks a foundation in justice) based on his critique of Hayek's rejection of the idea of social justice. We found that, even if his presentation of Hayek's views is correct, his arguments fail to make a dent in the case against social justice. Either they are defective (e.g. his attempt to make room for a positive conception of freedom) or they focus on positions he ascribes to Hayek but which are hardly representative of liberal political philosophy (e.g. the narrow conception of justice as turning essentially on intentionality) or they address weaknesses in the Hayekian system that have no bearing on the cogency of the idea of social justice (e.g. the arbitrariness of Hayek's social safety-net). The conclusion of our investigation must be this: if Plant is right in saying that Hayek's critique of social justice is ultimately insubstantial, his statement that Hayek's is the most searching criticism of the notion of social justice must be false; and if the latter statement is true, grave doubts must be voiced about the accuracy and force of Plant's critique of Hayek's views.
The significance of this conclusion is not trivial. After all Plant states that "Hayek's critique ... has to be answered by the Left if [social justice] is to have any meaning" (p.164, emphasis added). The direct answer to Hayek would be to present a cogent conception of social justice. Plant does not even try to do that. There is not one reference to any socialist or social democrat who in his opinion has given such a direct answer. Confronting Hayek's very strong claim - in fact a sort of "impossibility theorem" - there stands only the pathetic hope that eventually some cogent conception of social justice might be worked out. Meanwhile, "social justice" continues to be invoked in justification of redistributive policies on a scale the world has never seen before.
Frank van Dun
Maastricht, juni 1994__________________________________
