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SCI LIBRARY

On the Nature of Justice

Nicolaus Tideman



[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 know... :)

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 established?

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.[13]

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 tradition...:)

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.[14] 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 governments.

Al Date:

And I believe that all these rules are all aimed at maximizing utility.

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 them.

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 moral intonation.

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 minority loses.

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 O’Mara 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 natural opportunities.

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 utility.

When maximizing utility conflicts with the principle of equal liberty, which do you choose?