Social Justice, Libertarianism

Social Justice: Concept and Conceptions

Between the Todd Seavey mini-bru-ha-ha, the Cato Unbound discussion, our awesome symposium on libertarianism and land, several recent BHL postsone from Bryan Caplan and one from Ilya Somin, we keep coming back to a single question: What is social justice? A number of us have provided definitions and refinements. I thought I’d add a few conceptual notes so that no one can say we BHLers weren’t clear about what social justice consists in, along with some replies to Bryan and Jacob.

Social Justice, The Concept 

How does the term “social” modify the term “justice” such that we are left with an important and illuminating concept that is a kind of justice that libertarians should accept? I’m going to give a Rawlsian answer to this question by holding that social justice is justice with regard to the arrangement of a society’s basic structure. Let’s take the second term first. Rawls defines a society’s basic structure as follows:

By the basic structure I mean a society’s main political, social, and economic institutions, and how they fit together into one unified system of social cooperation from one generation to the next (PL, 11).

Rawls’s theory in Political Liberalism is meant to apply to modern constitutional democracy, such that the subject of social justice is the structure of the modern constitutional democratic state and the institutions it governs. For Rawls the basic structure is “the first subject of justice” (257). He states again that,

The basic structure is understood as they way in which the major social institutions fit together into one system, and how they assign fundamental rights and duties and shape the division of advantages that arises through social cooperation. Thus the political constitution, the legally recognized forms of property, and the organization of the economic, and the nature of the family, all belong to the basic structure (258).

So the basic structure is one great big social thing and serves as a subject of evaluation. A basic structure is socially unjust when it is not arranged in accord with principles that can be justified to each reasonable comprehensive doctrine (kind of like my discussion of public reason, but not the same).

Note that Rawls’s primary criticism of libertarianism in his later work is that “Libertarianism Has No Special Role for the Basic Structure” (262-264). I don’t throw this in just for fun. Rawls’s argument is that libertarians fail to acknowledge that societies must have a system of public law which inevitably makes use of coercion and that this use of coercion raises a distinct justificatory problem. Now whether Rawls is right to charge libertarians with this is another matter. The point is just that to embrace social justice is to embrace the basic structure of a given society as a subject of evaluation as just or unjust.

Now to the second term, the idea of an “arrangement.” Arrangements are made in accord with principles, like Rawls’s two principles of justice.

In my Gausian view, we evaluate basic structures piecemeal in accord with evaluations of particular rules and practices. Different rules and practices can be publicly justified in accord with different criteria. The justification for the basic structure, social justice, that is, is a spontaneous moral order that arises from the justifications of its parts. On the Rawlsian view, however, we stay holistic and evaluate the basic structure in one complex, mostly “top-down” process.

But on both views, for a basic structure to be arranged in a particular fashion is to say that it rests on certain principles and shared ideas that are the subject of moral and political evaluation. To put it another way, we see that a basic structure is arranged when it has a rational structure.

Social Justice, Conceptions 

So there’s the concept of social justice. Now let’s turn to conceptions. Consider the conception of social justice articulated by my friend, fellow Arizonan and co-blogger Jason Brennan:

Advocates of social justice believe the moral justification of our institutions depends on how well these institutions serve the interests of the poor and least advantaged.

I don’t think this statement describes the concept of social justice but rather the general range of conceptions of social justice. It is conceptually coherent to have a conception of social justice where the rich are given special preference by a society’s basic structure. It’s a bad conception, but it is still a conception. Instead, J simply (and correctly) observes that nearly all conceptions of social justice hold that the arrangement of a society’s basic structure must be based, among other things, on principles that require institutions to serve the interests of the poor and least advantaged. As J says, conceptions of social justice vary but they usually include these elements.

Now, what could justify this focus on the poor and least advantaged? It depends on how one justifies a particular conception of social justice. On the Rawlsian view, we’re looking for a set of principles that persons have reason to endorse given their diverse comprehensive doctrines (if you want me to be more precise here, ask). As David Friedman has noted, Harsanyi used a similar justificatory device to generate the principle of average utility as a key principle of justice. In my view, Rawls got the first principle right and Harsanyi more or less got the second principle right. But on the Rawlsian view, the liberty principle plus the average utility principle comprise a conception of social justice, namely a conception of the principles that arrange the basic structure in particular configurations. Most of us accept versions of sufficientarian and prioritarian principles of social justice. If people want more specific versions of what sufficiency and priority come to, much has been written on the topic, so I suggest you begin there.

Levy against Social Justice 

On Monday, Jacob Levy made two complaints against conceptions of social justice advanced by friend of the blog John Tomasi and my fellow co-bloggers Matt Zwolinski and Jason Brennan. His first complaint is that talk of social justice suggests a kind of justice fundamentalism, a claim that justice is the overarching metric of evaluating institutions. But, and I don’t think Jacob will disagree with this, nothing about the concept of social justice or the range of conceptions of social justice discussed here succumb to that problem. And we can immunize Jason’s definition above by adding replacing “depends” with “depends, among other things.”

Jacob’s second complaint is that Rawlsian conceptions of social justice, by focusing on “members of society” are objectionably nationalistic. But notice that focusing on the “basic structure” of a society does not restrict us to nationalism. For instance, if a global economy has a basic structure, then it too is the subject of social justice as I have defined it. Again, I don’t think Jacob will disagree.

Caplan against Social Justice

Finally, to Bryan. Bryan runs familiar hard libertarian counterexamples to BHL concerns about the least well-off largely by testing our claims about social justice against micro-level examples, such as an island with ten people, many of whom wish to redistribute the fruit of “Able Abel’s” labor. Many replies suggest themselves, but let me offer one.

A conception of social justice helps to specify what counts as the fruits of one’s labor in a massive system of social cooperation which depends on a vast range of conventional rules. That’s why Bryan’s testing social justice against micro examples is problematic, because it masks indeterminacy in macro-level social norms that we want a standard of social justice to evaluate. Consider the many “incidents” of property rights, such as whether homesteading land means that you own the air miles above your plot. In Bryan’s case, disputes over the “height” of our property don’t matter. But in our complex society, such disputes matter a lot because the efficiency of airline travel depends on how they are resolved. A conception of social justice can help us determinate what system of efficient property rights can be morally justified in this case of indeterminacy.

  • Dan

    “social justice is justice with regard to the arrangement of a society’s basic structure”

    I don’t see how this would exclude, e.g., Nozick from being a theorist of social justice. After all, Nozick spends the first third of his book arguing (against the anarchist) that a minimal state could be just, and the second third arguing that no larger state could; so to that extent, he was clearly concerned with evaluating the justice of particular implementations of state institutions and so he was thereby concerned with the basic structure. Of course, he did think that the justice of a basic structure is a derivative question: what is fundamental is the justice of a particular distribution of holdings, and somehow (in some hard to specify way) the justice of institutions reduces to this.

    But the point generalizes: are there really any libertarians who think that somehow, the basic structure is immune to criticism on the basis of its compliance with principles of justice? Perhaps, but it would be a remarkably anemic libertarianism: “It’s unjust that money has been redistributed from X to Y. But are the coercive institutions of state that carried out that redistribution just? Well, my conception of justice simply doesn’t apply to them!”

    So it seems to me that no crux of the dispute is to be found here. The question: does justice apply to the basic structure/individual actions/society-wide distributional facts? is entirely orthogonal to the question: does justice require some concern for the interests of the poor?

  • Dan

    “A conception of social justice helps to specify what counts as the fruits of one’s labor in a massive system of social cooperation which depends on a vast range of conventional rules.”

    This, it seems to me, would have slightly perverse consequences. For instance, I think most people would accept the following as a platitude (perhaps not in these precise terms): what the fruits of one’s labor are supervenes on one’s actions and their effects. Consider two identical people sowing identical fields in identical conditions, and yielding an identical amount of crop. Surely, we’d want to say, the fruits of these peoples’ labor is identical. But this result is not guaranteed by many, many conceptions of social justice, e.g. Rawls’s: if the first person lived in a society in which he was the worst off, perhaps the basic structure would allow him to keep his crops; but if the second was among the best off, perhaps he would be taxed. Do you really want to say that there are different fruits of labor here?

  • “A conception of social justice helps to specify what counts as the fruits of one’s labor in a massive system of social cooperation which depends on a vast range of conventional rules.”

    This. Right here is the crux of the divide IMO. I believe if you were to ask the average liberal, Is a worker fully entitled to the fruits of her labor? the answer would be an unqualified Yes. But what counts as fruits of labor?

    Example 1: John purchases a home in the suburbs, lives there for a few years, then gets a job offer out-of-state so decides to sell and move. In the intervening period the area around his property has been further developed by others and accordingly his property value has substantially increased such that he realizes a considerable gain over the purchase price.

    Example 2: Jane purchases 100 shares of stock in XYZ company at $10/share. Jane does not work for XYZ company or in any way direct it’s activities. This is a standard market purchase; not an IPO. A year later she sells those same shares for $20/share yielding a gain of $1000.

    Example 3: Dave is the CEO of an under-performing corporation. As is typical, Dave also sits on the boards of two other corporations. The CEO’s of those corporations sit on the board of his corporation. Lots of familiar faces all around. The board — his friends — vote to provide Dave a lavish salary and he returns the favor in kind.

    Question: Are these monetary gains morally justified as absolute private property? And if so, how? Because I submit to you that such justification requires something other than a standard “fruits of your labors” analysis.

    • Rod, if you think of property rights as being on a spectrum, with Locke’s “fruits of one’s labor” (proceeding from a natural person’s mind and body) at the “strong property rights” end, and property that is so lower-ranked that it’s subject to being taxed as income at the “weak property rights” end, none of the 3 examples you gave are entitled to the “strong property rights” level of protection.

      The first two examples are capital gain scenarios. So, while John and Jane’s property holdings increase, they are only entitled to this property after income taxes have been paid on the gain. See Merchants Loan v. Smietanka, 255 U.S. 509 (1921) for the Court’s reasoning in authorizing an income tax on capital gains under the then newly ratified 16th Amendment, where capital is the underlying property source from which the gain is derived.

      Neither does the third example represent the fruits of Dave’s labor, nor does the taxation of the salary even require support from the 16th Amendment. This is because when corporate directors and officers are indemnified by government (i.e., receive special privileges), their salaries are automatically taxable as income under Flint v. Stone Tracy, 220 U.S. 107 (1911). In addition, if Dave’s salary is too “lavish,” as you say, the lavish part should be subject to another income tax because it was effectively a dividend. This is the way income taxes are ::supposed:: to work to prevent monopolies, great accumulations of wealth, provide sources of gov’t revenue, provide federal jurisdiction over individuals and businesses, etc.

      To understand what give rise to Dave losing “strong” property rights status, imagine that you have a home garden that produces about $1,000 worth of vegetables. Ordinarily this is not taxable as income, but if you were to incorporate the garden, then the value of the exact same vegetables are taxable, and the value of the vegetables are used to measure the benefit you received from being incorporated. So,while it appears that the government is taxing your vegetables, it’s really not. The target of the tax is the privilege, so the effect on property (your vegetables) is deemed to be indirect (and therefore not subject to the apportionment and proportionality mandates of the Direct Tax Clauses).

      So, to answer your question, no, none of these gains qualify for the level of legal protection that absolute or near-absolute private property rights are entitled to.

  • To be clear: my comments about justice fundamentalism or monism go the other way.  It’s not that I think “social justice” necessarily depends on or requires such fundamentalism.  It’s that I think the Tomasi-Zwolinski argument against Hayek, Friedman, Smith, Locke, and the other classical liberals who supported poverty relief depends on justice fundamentalism: the poverty relief doesn’t count as morally weighty in the right way unless we call it justice.  Therefore, so the argument goes, we need the concept of social justice.

    If we reject justice fundamentalism, then the argument doesn’t go through.  Social justice is no longer *necessary* as a way to signal that one cares enough or in the right way about the alleviation of suffering.  This isn’t an argument against social justice (though the anti-nationalism is).  It’s an argument that social justice is a superfluous add-on to what the classical liberals already thought, put there for justice-fundamentalist reasons.


    I confess to being at least slightly confused here. In your opinion, under what circumstances (if any) can a society’s “basic structure” (as you use that term) satisfy the demands of “social justice” without also satisfying the demands of “justice” simpliciter. Converesely,  under what circumstances (if any) can the basic structure of a society satisfy the demands of “justice” without also satisfying the demands of “social justice”? If the answer to both questions is “none,” I am perplexed as to what additional intellectual content is being conveyed by the use of “social justice.” Its use seems to suggest that someone, somewhere, under some circumstances is owed something more than justice, but if the two terms are extensionally identical, this is not the case. Thus its use, at least to me, is more confusing than helpful. 

    • good_in_theory

      Hi Mark,

      I can’t speak for anyone else, but how does something like this sound:

      Let’s say ‘justice’ consists in an individual engaging in only voluntary transactions.
      “Injustice” would conist in an individual engaging in a coercive transaction.

      A society could be fully ‘just’ if all individuals engaged only in voluntary transactions.

      Now let us suppose that such a society produces effects that are strongly emergent.

      That is, these effects are not reducible to any of the transactions which constituted the society.

      Next, let us suppose some of those effects are pernicious, and even further, coercive.

      So our society of strictly voluntary human interaction has produced strictly involuntary human relationships which are a result of, but not reducible to, voluntary human interactions.

      Let’s call this “social injustice”

      Social justice is the rectification of those wrongs.  It is not identical with justice, which consists in all the individual components of a society engaging only in voluntary transactions.


        Hi g.i.t.,
        Thanks for the interesting and provocative suggestion. It is certainly more of a response than I got from Kevin (or from Jason when I raised this point with him). However, I don’t think it really solves the problem I raised.

        My challenge was to the simultaneous use of both the terms “justice” and “social justice.” In other words, could a state of affairs be at the same time “just” but not “socially just” and vice versa. If not, why can’t we just describe our aim as a just society–why do we need the “social” tacked on?

        I think what you have shown is simply that we can be mistaken about whether a situation or moral principle is just. If you advocate principle(s) of justce that are at all consequence-sensitive (as most of us do, at least if the consequences are sufficiently horrendous), then you may be mistaken in your evaluation because of unexpected outcomes. In your example, a policy that was initially thought just because it was anti-coercive, turned out not to be (I’m putting aside questions about whether this could actually happen). 

        In any case, I don’t think that your scenario is what the BHLs mean by “social justice.”

        • good_in_theory

          Thanks for putting aside the possibility argument.  I can’t create a demonstration at this point, only throw together words that I hope are consistent.

          I took myself to be describing a situation which is just but not socially just.  As I constructed it, I don’t think it would be possible to have the reverse – to have social justice but not justice – as full social justice would require full justice.  That’s because I’m assigning social justice to the ’emergent’ level of analysis and justice to the level of the individual components.
          I guess what my distinction rides on is ‘justice’ being a principle that can be used to guide actions (such that all actions can be just) but also a principle that judges effects.  You can even have it such that every just act will by definition cause only a just effect, assuming this emergence story (so all acts are either just or unjust, no unjust effects are caused by just acts, but  not all unjust effects are caused by unjust acts, because not all effects are traceable to acts)

          As such the product of the aggregate of all just acts, with each just act only causing just effects, is (possibly) injustice (which emerges, but is not ’caused’).

          In this sense, it is perhaps better to think of social justice in the negative, as social injustice.  If we have social justice we have full justice, and the distinction disappears.  If we have social injustice we may or may not have full justice.  Only by having the middle term of full justice/social injustice do we have grounds for keeping the two concepts distinct

          I think that my story can be grafted on to the BHL story, because of this line:

          “Different rules and practices can be publicly justified in accord with different criteria. The justification for the basic structure, social justice, that is, is a spontaneous moral order that arises from the justifications of its parts. ”

          This to me creates a distinction between the structure/spontaneous order and the parts.  And that’s the distinction I need to support my separation of concepts.  If it holds, we then have to move to whether strongly emergent injustice can be a product of the aggregate of purely just actions (whatever our principle of just action may be). 

          • MARK_D_FRIEDMAN

            OK, interesting idea. I would just caution for what its worth that your project not slide into evaluating the same state of affairs from the standpoint of two distinct moral theories, where one theory produces a conclusion of “justice” and the other “social injustice.” Obviously, a right-based theory of justice could reach a very different evauation of a given situation or principle than a utilitarian view. My challenge to Kevin was how from his particular moral perspective an arrangement could be just without also being socially just (and vice versa).

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