Economising on Justice
Justice is scarce, and it is a sign of a reasonably organised society to have found ways of economising on the scarce resource of justice. In a free society, justice is scarce - amongst other reasons - because personal autonomy (the options available to Gellner's "modular man") creates unprecedented discretion on the part of individuals to question and redefine morality directly or indirectly through the propagation of uncensored ideas and the pursuit of idiosyncratic actions that have appreciable moral implications for their fellow-citizens.
Normative Guidance without Justice
As in economics, where a "just" price can not be scientifically established, in politics, situations abound where it can not be known whether the outcome is "just" in the sense of a compelling, generally accepted justification. There are moral agreements pervading society that come close to such general acceptance. Agreements of that kind may be classified as constitutional precepts, even though they may not be expressed in a written constitution. Say, the agreement to outlaw and abstain from imposing harm on a person solely by virtue of her being member of a certain ethnic or racial group. There are many of such constitutional precepts, and they play an important role in creating social cohesion.
However, there is a large class of situations, with respect to which we can not establish a degree of general agreement that effectively institutes constitutional rapport in a community.
Legitimacy and Justice
In the same manner as there may not be a "just" price, but a "legitimate" one, we may not be able to ascertain a "just" policy, but one that is "legitimate." In fact, there may be many such "legitimate" policies, and they are affected by justice only so far as procedure (the way they are generated in a community) is concerned and so far as they do not violate constitutional precepts and other vital generally observed norms. But the policy itself is neither "just" nor "unjust," because it is lacking a sufficiently broad basis of support to achieve unequivocal concord or an atmosphere of untroubled acquiescence akin to express unity.
Legitimate outcomes, however, may mature to count as just outcomes some time in the future, gaining constitutional weight.
Similarly, "contested" outcomes, may become admitted to the class of "legitimate," but not "just" outcomes. Say, in Ireland, abortion may have been a "contested" and "illegitimate" outcome (95% of the population opposing the proposition) for a long time. In the course of time, however, gradually abortion enters the range of policies that may qualify as being "legitimate," while still not being "just" (substantial, yet minority sections of society supporting abortion on certain terms). Over time, perhaps not in Ireland, certain practices of abortion may finally assume the status of being "just" (being generally accepted by the vast majority). Thus, a contested, even suppressed policy proposal generally held to be illegitimate may mature into a feasible yet still highly contested product of implementable politics and finally come to fruition as the socially dominant practice, the legitimate and just way of going about matters.
The politician and other political activists may be thought of as helpers guiding policy proposals through these stages. Hence, to a large extent, they are dealing with policies whose justice has not been generally established. That makes them appear fishy and unprincipled, but they are brokers of pieces of change. And brokering pieces of change is a vital ingredient of the political order of a free society.
Genesis of Justice
- "self-justice", where a person establishes what she considers to be justified by justice, while violating the procedures by which legitimate or just outcomes are arrived at in a community.
Then there is
- "legitimacy," which is a status of authentication for a policy that permits its practice on grounds of correct procedural origination.
And finally, there is
- "justice," which is a status of authentication that authorises a policy on the grounds that it is in accord with "a community's common notion of justice" or "constitutional precepts."
These observations entail momentous implications - for a theory of justification, for our picture of the nature and genesis of justice, and for the role of politicians and activism in the political order of a free society.
Dynamic and Parsimonious Consent versus Absolute and Complete Consent
Firstly, contrary to what even sophisticated libertarians like James Buchanan hold, we do not need some Archimedean point of leverage supporting a herculean one-stop feat of justification by which to establish the legitimacy of the social order that we prefer, indubitably and once and for all. The justifications that prop up a viable social order accumulate over time; we never start from scratch, but build on what we have. Even in times, when there are severe disruptions, we soon return to traditional stock, and then extend the structure in more or less piecemeal fashion. Not to mention that social viability is not the result of intellectual justification alone; at least as important as a plausible intellectual narration is the pragmatic experience that things are working out tolerably well, and that we are comfortable enough not to feel so disoriented, scared, and materially deprived as to condone or even participate in revolutionary turmoil.
Incidentally, for most human situations it is the case that we do not need to know whether they are legitimate or even just, and we do not bother to probe them in these terms; it is enough for them not to make us wonder or even actively challenge their legitimacy or justice.
It is not justice alone that holds society together and makes people operate peacefully and productively within a common societal network. Notwithstanding its unrelenting parts, justice is supple. For it is a living growth that unfolds in ripening stages propelled and boosted, hindered and retarded, killed or resuscitated by competitive deliberate human attempts at defining it.
Justice is not a static device, a definite and finite set of premisses from which to arrive at conclusion whose determinateness is putatively implied in the premisses. Justice is not well represented as being analogous to a logical formalism. If this is what he meant, I am happy to adduce Oliver Wendell Holmes famous dictum: "The life of the law has not been logic, it has been experience."
Political Activism, Emergent Justice, and Freedom
The political active represent agents of this experience, they keep driving moral change by transforming more or less judiciously the altering historical circumstances into new channels for proper, peacefully coordinated human conduct.
It is odd that libertarians who are so concerned with consent and justification, especially justification of the liberal order or constitution by consent, show little interest in the practical course of democratic politics. At the end of the day, it is practical democratic politics that ensures the dynamic equilibrium that we experience as a society that is largely just or legitimate, at least enough so as to keep us from revolting.
The alternative to democratic freedom is not a depoliticised society, where private transactions miraculously replace the disagreements and collective ambitions of our kind, the alternative to democratic freedom is a non-participatory despotism, the self-justice of an elite.
It is the politically active in a democracy that keep the blood flowing through the veins of a free society. By challenging one another, by bringing up new proposals and eroding parts of the status quo, by defending well established traditions, by producing the messy and contradictory landscape of a society based on free dissenting, they preserve justice as a living and supple feature of our civilisation.
It is the doubtful assumption of the man in the ivory tower that this process can be good only if it delivers clear cut, exhaustive, and consensual solutions, rather than a turbulent, blended, muddy flow of proven and durable, yet conflicting wisdoms as well as inconclusive fragments and ephemeral flotsam, still-born justice, justice destined for an early death, and hardy parts that one day will be widely embraced as genuine justice.
To the extent that libertarians discount politics as a net deprivation to the human community and relegate it from their vision of the Good Society, they live in denial of the flow of justice as it takes place under conditions of feasible liberty. They substitute for freedom a notion of society that has no place for the disagreements, conflicts, and compromises that are necessarily generated when personal autonomy is at levels that we are accustomed to refer to as freedom.