Justice - Scarce and Abundant
I can think of a number of reasons why justice is (made deliberately) scarce in a free society. Justice is expensive; to have it one must incur transaction costs. There are diminishing returns to justice; the costs of having more justice may exceed the benefits - one may overlegislate a society, both by stifling a community through regulation in the modern bureaucratic-dirigiste sense of a state that is too meddlesome, as well as by cultural regimentation such that a person is becoming inordinately other-directed by custom and status, almost like a puppet on a string.
The greater the freedom of an individual to develop his own conceptions of life and his own ways of living, the larger the number of issues on which people may diverge and at some point come to disagree perhaps in direct conflict with one another. When by justice we mean the determination by generally accepted precepts of what is right and may be done and what is wrong and may not be done in a particular situation, then by increasing the number of such determinations one will tend to reduce the options for free individual choice.
In that sense, it is accurate to say that in feudal and other highly regimented societies there used to be an abundance of justice.
A person's life was regulated in minute detail by distinctions of what she was to do and what she was not to do. What clothes to wear, when and how to speak, who to obey and who to command. When to do what with whom, where, why, how and when.
It was not just for A to wear a hat at all, and B, who was supposed to wear one, in order to heed justice, had to take his headgear off when X appeared, but not when Y turned up. Life was regulated by a tight net of justice, that is: by generally accepted and generally heeded distinctions between the absolutely requisite and the absolutely inadmissible.
Scarce Justice and Politics in a Free Society
By comparison, a free society tends toward the utmost scarcity of justice. In a free society we seek to reduce the number of determinations that prescribe what a person must do and what she must not do in order to avoid penalisation.
I suspect that in a free society, politics is so important not only because it is
- formative in establishing justice - a justice shaped by a citizenry invited to influence government and the legislation by which the executive is guided - but also because politics is
- a helpful complement and effective substitute for justice, a welcome means for economising on justice.
In Scarce Justice (1/2), I have tried to argue that politics has a role to play in making compromises possible that have not yet attained the status of being just (i.e. being generally accepted as just) but are good enough to pass as being legitimate (i.e. being arrived at by procedures thought to be just).
I reckon, it is exceedingly important to be able to avail oneself of such a transrational mechanism in a society promoting and protecting the right of every citizen to contradict and challenge every other citizen, including those in positions of special authority and power.
There is a shift of justice from the level of concrete situations and specific determinations minutely specified by custom to the level of procedure and more general criteria of admissibility with more space to be filled in by individual preferences rather than cultural conventions.
There is more room for individual demands and bilateral stipulations, for contractual obligations by private parities and associations originating obligations that are
- mainly rooted in a specific relationship (even just a transaction or a limited set of transactions) between a small number of private, personally autonomous agents, and
- only loosely or very selectively tied to the minimal morality (scarce justice) shared in a society.
There is a decline in the number of activities that are regulated by a tight, coherent, and common texture of concrete dos and don'ts.
Advantages of Parsimonious Morality
The new environment of more parsimonious morality enables immediate, individualised ("modular") compromises regarding specific issues that are impossible to achieve when ultimate justice is at stake. Moral parsimony enables a watered down, a supple "justice" that plays out over repetitive games. Any one decision may not be just, but it will be regarded as legitimate in helping to abet a long-term atmosphere of justice, an enduring balance of moral expectations.
We are more flexible, comfortable, and effective when we can act sensibly and peacefully, even though we do not know what is just or do not share a common perception of justice.
The problem of pre-contractural, pre-individualistic status society is that "everything" is a question of justice. There is a lot less to figure out and compromise about bilaterally in order to get on with things in effective ways.
Justice is a precious thing, which is why we do not mess with it easily. We do not suffer those who are facile and disrespectful about it, and this earnest attitude means we are prepared to resort to violence and severe penalisation so that justice be protected from desecration.
A greater scarcity of justice unburdens the citizen from the need to be careful of unjust misconduct at every turn. Life becomes less violent, more relaxed, richer in options. People become more tolerant, more capable of separating the plane of social interaction from the sphere of privacy.
In the past, the norms of justice may have been like traffic rules, perhaps even like military orders, plentiful, specific, and omnipresent. They were invasive, detailed, patronising, a guide to one's identity and station in life. Hemming in personal freedom. In a free society justice is more wide-meshed. Rather than an instrument of tutelage, it is being designed to minimise conflict while leaving vast spaces for personal and bilateral discretion. Working tacitly, it more rarely becomes conspicuous, chiefly when people lose orientation and non-important expectations conflict between two or more parties.
Justice is scarce, and it is supposed to be so. For in a free society, justice has been privatised to far larger an extent than we tend to be aware of. There is a supra-jurisdiction - the law. But within that supra-jurisdiction, there are sub-jurisdictions, the "vast spaces for personal and bilateral discretion," which are used by people to transact their own living law.
Politics and Law in a Free Society
Politics emancipates free citizens from the necessity to "make moves" (enact policies) only when covered by a concurrent majoritarian or culturally uniform sense of justice, providing instead a pre-stage of justice, legitimate resolutions and policies that add up to an atmosphere of long-term justice built on a credible succession of multidimensional acts of give-and-take, mutual accommodation, monitoring, and restraint.
Law in a free society democratises the emergence of justice by extending the range of tributaries, inviting millions of people to work out for themselves what is (going to be) or comes close to being just. A free society emancipates people to regulate matters between them without the intervention of an anti-individualist higher authority enforcing a coerced and stifling common cultural bond. Law in a free society is designed to make justice an instrument of parsimonious use and last resort, and to outsource to the sub-jurisdiction of the citizenry (empowered by private property and freedom of contract) much of what used to be regulated under a close-mesh net of rigid common standards of justice, and so much more of what would have been ruled out or entirely inconceivable under "the abundance of justice" characteristic of a status-based social order.
See also Why Law ? (2/2).