On the Nature of Justice
[Reprinted from a Land-Theory online
discussion, with comments by Al Date, 1999]
Nic Tideman (from his paper): But there is different use of
the scales that is particularly relevant to questions of social
justice, as opposed to personal disputes. The scales can be used to
achieve an equal division. Justice is done when the contents of one
pan of the scales are exactly balanced by the contents of the other.
Al Date: I always thought that the scales meant that the
punishment should be "equal" to the crime. But what do I
Nic Tideman (from his paper): And then the sword. The sword
represents the fact that justice is prepared to use the threat of
force, and force itself, to see that her decrees are carried out. In a
world where men have so often used weapons to achieve selfish
dominance, the feminine gender helps make credible the claim that the
sword is used only to achieve justice, and not to advance the selfish
interests of the person who wields it.
Al Date: And I suppose that since women are now in the
military and in politics, that it is time that oppressed men should
start lobbying for a male justice symbol. Batman? :)
Nic Tideman (from his paper): Even the utilitarian proposal
that conflicting claims should be settled in the way that yields the
greatest possible utility must be rejected as an elitist imposition of
a particular goal on people who may have other plans. If I choose to
pursue a life that can be guaranteed to lead to depression and
despair, I have as much claim to the protection of justice in that
pursuit as if I choose the path that leads to bliss.
Al Date: I think that this is a very weak example, because
the person who chooses self-misery or even suicide is not necessarily
involved in any "conflicting claims" which affect others and
which therefor may invite a utilitarian calculus.
Nic Tideman, replying to Al Date: No, a person may want to
use a very expensive way of achieving depression and despair. He may
wish to use expensive marble to impress the world with his talent as a
sculptor, when in fact he has none. He may wish to use a vast array of
computers to prove that pi is a rational number. A utilitarian would
put those resources to work for some purpose that had a chance of
achieving happiness for someone, while a just person would say that if
the resources were bought with his earnings, they are his.
Al Date: Meanwhile, court decisions regarding rights-of-way
and other "stepping on other's toes" will invariably be
decided so as to maximize utility. That's how the entire bankruptcy
system came into effect, replacing debtor's prisons--much to the
chagrin of the money-lenders.
Nic Tideman responding to Al Date: I agree that there is a
place for contractarian utilitarianism in decision-making, but I
believe it should be confined to instances where people are making
decisions about the use of resources that are agreed to be theirs, or
where people have given their actual consent to having decisions made
by utilitarian criteria.
Al Date: Maximizing utility may be considered an "elitist
imposition" philosophically, but it usually has the effect of
helping the common people at the expense of the elites--such as
allowing common land uses or flyovers that were not desired by the
landlords. It is impossible for millions of people to get around
without inconveniencing or irritating someone somewhere, and the best
that justice can accomplish is mitigating the irritation.
Nic Tideman responding to Al Date: Treating land as our
common heritage, and requiring anyone who wants to have exclusive
access to part of it to pay the value that would have to others takes
care of this, I believe.
Nic Tideman (from his paper): If one wishes to make sense of
majoritarianism, one must first specify the perspective from which
voters are expected to vote. Are voters to vote as proponents of their
selfish personal interests, or are they to vote as disinterested
judges of what is best? Suppose first that voters vote on the basis of
their selfish personal interests.
Al Date: Suppose that a jury must vote unanimously to
convict someone of a crime.
This gives an inherent advantage to the accused. Our system of
justice is based on the idea that it is better that ten guilty men go
free than one innocent man be convicted. But would people stand for it
if 1000 murderers were set free so that one innocent man would not be
convicted? 10,000? 1,000,000? I doubt it.
Justice is a system, a process. It cannot be defined absolutely. What
was "just" 100 years ago, may now be considered barbaric.
So, it can only be "defined" and redefined in reference to
the changing ethics of society.
Our _system_ of justice, unique in the world, is a combination of
common law and the Constitution, most notably, the First Ten
Amendments, formulated from the personal opinions of a small group of
men, led by Thomas Jefferson, who just happened to believe ...
Nic Tideman (from his paper): We have the right to
co-operate with whom we choose for whatever mutually agreed purposes
we choose. Thus we have the right to trade with others, without any
artificial hindrances, and we have the right to keep any wages or
interest that we receive from such trading.
Al Date: And in the background of all such classical liberal
thought is the utilitarian justification that this is what works best
for the advancement of the entire society, not just an elite.
Nic Tideman responding to Al Date: No. Consider blood
donations. Our hospitals often run short of blood. It would be much
more efficient to require anyone to donate blood when his or her name
was drawn at random. But we will refrain from imposing such a system
on others, even if we recognize that we would be better of personally
and so would the average person, because it would be an unjust
intrusion on self-determination. It is not rule utilitarianism, but
rather recognition of individual rights that governs what we think the
rules ought to be.
Nic Tideman (from his paper): These components of the
classical liberal conception of justice are held by two groups that
hold conflicting views on a companion issue of great importance: how
are claims of exclusive access to natural opportunities to be
Al Date:: And again, the ultimate solution is found by
letting them bid on it; ie, maximizing production while maximizing the
collection of rent.
Nic Tideman (from his paper): One tradition in classical
liberalism concerning claims to land is that of > the "homesteading
libertarians," as exemplified by Murray Rothbard, who say that
there is really no need to be concerned with Locke's proviso. Natural
opportunities belong to whoever first appropriates them, regardless of
whether opportunities of equal value are available to others.
Al Date: I would call that a perversion of classical
liberalism, just as modern economics is a corruption of economics, to
coin a phrase. :)
Nic Tideman (from his paper): The other tradition is that of
the "geoists," as inspired if not ...
Al Date: Not the other tradition, but the actual
Nic Tideman (from his paper): ... exemplified by Henry
George, who say that, whenever natural opportunities are scarce, each
person has an obligation to ensure that the per capita value of the
natural opportunities that he leaves for others is as great as the
value of the natural opportunities that he claims for himself. Any
excess in one's claim generates an obligation to compensate those who
thereby have less. George actually proposed the nearly equivalent
idea, that all or nearly all of the rental value of land should be
collected in taxes, and all other taxes should be abolished. The
geoist position as I have expressed it emphasizes the idea that, at
least when value generated by public services is not an issue, rights
to land are fundamentally rights of individuals, not rights of
Al Date: And I believe that all these rules are all aimed at
Nic Tideman responding to Al Date: When maximizing utility
conflicts with the principle of equal liberty, which do you choose?
Al Date responding to Nic Tideman: Historically, we conflate
What is done (whether intentionally or by feeling our way) is to
figure out the best way to maximize utility--and then boldly proclaim
it is a matter of "right." As a recent example, I offer Roe
v Wade. Further back, I would offer alcohol prohibition; and then its
repeal! Further back, I would offer the abolition of slavery; and the
Declaration of Independence.
And, of course, I have already offered as a pertinent example your
own "Georgist economic reform equalling justice."
When we proclaim something as right and just it is our way of saying
that this is the best thing for our society, but with a righteous and
The test of this is to ask yourself if you would continue to argue
that Georgist economic reform was required for justice if you were
convinced that it was not utility maximizing.
Mase Gaffney responding to Al Date: Al, you would probably
enjoy an old book by James Harvey Robinson on "Rationalization."
It seemed daring in its day; old stuff now, I suppose.
Fred Foldvary responding to Al Date: I would.
Just as I would argue against slavery even if it were utility
maximizing, e.g. when a large majority gains more than a small
I have been amused with Austrian-school types advocating utility
maximization when they know utility is subjective, non-measurable,
applicable at marginal rather than total levels, and used in an
ordinal rather than cardinal way in economics.
Mike OMara responding to Fred Foldvary: Yes, that's
the distinction needed: the utility of the individual, versus the
utility of "society". Whether a particular individual
advocates freedom or slavery depends on his personal utility function,
and his information about which policies best increase his utility.
Most people today find their utility decreased by the existence of
slavery, even though a few may find it increased. If most individuals
in the U.S. found that their personal utility is increased by slavery,
forced blood donations, etc., then we would have those in this
country. A free society is only possible if the majority of people
each have personal utility functions in which their utility is
increased by freedom and decreased by slavery, and if they have the
information needed to recognize the effects of different policies on
their personal utility.
Through the process of evolutionary psychology, it is probably the
case that most people have personal utility functions compatible with
a desire for freedom and geonomic justice. The main barrier is
probably the cost of information, so that people could become more
aware of which policies best increase their personal utility.
Nic Tideman (from his paper): Justice -- the balancing of
the scales--is the geoist position, "I get exclusive access to
this natural opportunity because I have left natural opportunities of
equal value for you." (How one compares, in practice, the value
of different natural opportunities is a bit complex. If you really
want to know, you can invite me back for another lecture.)
Al Date: I can't wait!
Nic Tideman (from his paper): Justice is thus a regime in
which persons have the greatest possible individual liberty, and all
acknowledge an obligation to share equally the value of natural
opportunities. Justice is economic reform--the abolition of all taxes
on labor and capital, the acceptance of individual responsibility, the
creation of institutions that will provide equal sharing the value of
Al Date: I could not agree more!! But economic reform is
ALWAYS done for utilitarian reasons, or, alternatively, its outcome is
judged by utilitarian measures. So, it seems that you have admitted
that justice is ultimately a rule-utilitarian device.
And I believe that all these rules are all aimed at maximizing
When maximizing utility conflicts with the principle of equal
liberty, which do you choose?