A Book Review . . . Justice And The Law Revisited

By JOHN LYON

Thomas Sowell, The Quest for Cosmic Justice. New York: The Free Press; 1999.

At the heart of the argument set forth in this significant and engaging book stands the author’s account of what may appear a disconcerting exchange between Justice Oliver Wendell Holmes and Judge Learned Hand. “Do justice, sir, do justice,” Hand enjoined his departing friend. “That is not my job,” Holmes replied. “It is my job to apply the law.”
The disjunction between “justice” and “the law” as set forth in the Holmes-Hand passage may initially shock our puritanical and literal sensibilities. Nevertheless, it lies at the basis of Sowell’s contention. Law, in our tradition, is process-oriented. It is an attempt to work within given human limitations, not to spew forth decrees against nature and the cosmos. It is enacted by the legislature, interpreted by the courts, and enforced by the executive. Law aims to be prudent, positive, definite, readily enforceable, of a piece with previous legislation, and open to as few idiosyncratic juridical opinions as possible.
Justice, on the other hand, like its vague in-law abstraction equality, may be a guiding star in the juridical heavens, but it tends to shine little direct light on the actual courtroom or legislative chamber.
Sowell argues that the conception — and implementation — of justice is inevitably social. And for eons our species has arranged and rearranged intra-species relations in pursuit of various conceptions of “fairness.”
Redistributist policies such as reducing disparity of income, and facilitating broader access to resources, may be dominant ideas today.
In addition to social justice, justice within society, however, we have now taken on nature and the cosmos, attempting to plot a narrative of a just, egalitarian universe, where, for instance, none are born physically defective, and where the Malthusian tension between resources and reproduction has been annulled.
As understood by the dominant positivistic, secular, scientific mindset, however, the universe cannot be accused of justice or injustice, equality or inequality. Such words represent contentless conceptions. They hold value only in a universe that has been created good by a beneficent God. In our conceptual universe, man makes himself, and not only makes law but also makes justice. Again and again he makes it, in mutually contradictory forms.
Having no God to appeal to or blame, we search for scapegoats, vicious or ignorant classes whose actions or even whose being can be categorized as roadblocks to progress, and must be eliminated.
The conceptual muddle in which such words as “equality” swim is strikingly described in the words of Charles Sanders Peirce which stand at the beginning of Sowell’s well-titled chapter on “The Mirage of Equality”:
“Many a man has cherished for years as his hobby,” Peirce wrote, “some vague shadow of an idea, too meaningless to be positively false.” The category of general ideas such as the two we are concerned with here (justice and equality) was described similarly by Alexis de Tocqueville 200 years ago, who spoke of them as being like a magician’s box, into which anything can be put and, given adequate verbal dexterity and rhetorical legerdemain, anything desired subsequently drawn out.
“Cosmic justice,” like its fellow abstraction of unstable meaning, “equality,” seems to be a universal acid, which dissolves any political container into which it is put. Sowell sees its pursuit as irreconcilable with personal freedom based on the rule of law (pp. 45-46). It is not that we should not inquire into and right patent wrongs. But in doing so, he argues that it is extraordinarily important for a society to closely, clearly, and as completely as possible, discern the costs of proposed amendments to or abolition of such reasonable, practical, legal adjustments as prevail politically, rather than “trying ad hoc to retrospectively adjust the cosmos to our tastes.”
This ought to be done with particular care when, in the name of some phantom order of things bred in the minds of the temporarily dispossessed or disadvantaged or their ideological mentors, we propose to revise a Constitution such as ours which, through its ordinary evolution, has brought blessings to many, not all of whom live in this country.
The self-anointed visionaries of political pie-in-the-sky will not scope out adequately, and certainly will not pay the costs of putting into practice their grand deliria. These will, Sowell argues, inevitably be passed on to supposedly vicious or ignorant third parties who are, in any imaginable accusation that fashion determines, responsible for injustices or inequalities.
The tendency of legislatures to meddle endlessly in the structure of society was once put indirectly but sharply by Mark Twain, who commented that the secret of success in government was to elect a legislature, and then see that it never meets. The unspoken premise here is that there is always something wrong within the polity (or the cosmos), and some politician will always arise to adjust things to accord with a vision which, though perhaps novel and untried, can be foisted off as a cure-all on those offended under the current political system. This establishes “cheap glory” for the politician and irresponsible entertainment for his constituents. Had the occasion arisen, Twain might well have said something similar about the judicial bench.
The poet wrote, “Ah! That a man’s reach exceed his grasp, Else what’s a heaven for?” The parodist replied, “Ah! That a man’s reach exceed his grasp, Else what’s a metaphor?” The ideological agitator might well propose as the last line here, “Else what’s a politician for?” (Metrical apologies!) In our time, when legal and judicial ukases are issued against the universe, politics does take on a metaphorical caste.
The tendency of abstract ideas to destabilize societies was extensively noted over two centuries ago when the armed prophets of the French Revolution broke upon world history. John Adams, for instance, wrote that the French Revolution was generating “false Notions of equality” which would undermine the stability of American society. When the word “equality” was used in American state constitutions or in the Declaration of Independence, Adams stated, the word meant that we were equal in the sight of God and in “Rights and Obligations, nothing more.” (See Gordon S. Wood’s excellent study of Adams and Jefferson, Friends Divided, 2017, p. 277.)
Sowell argues the same case, pointing out that devotion to such abstractions by the self-appointed, self-anointed visionaries destabilizes society. This is due initially and in part to the need to find and demonize scapegoat classes which can be blamed for whatever is wrong with current political arrangements or the currently perceived structure of the cosmos. Ultimately the scapegoat becomes any who uphold the basic decency of one’s country.

Necessary Power

A final factor to be concerned with in the revision of the constitutional order we enjoy, and moving to an imagined more just, equitable order, is, as Sowell points out, the cost of providing the federal government with adequate power to right every earthly wrong and some cosmic ones. Such power will be necessary to annul established policies and procedures and dispossess those who currently benefit from them.
For the enlightened visionaries who demand such changes will certainly not themselves pay the costs of transition and implementation to the new order. Those costs will be transferred to “privileged” third parties: the rich, the middle classes, whites, males, heterosexuals, Christians, non-trannies, and other such obviously vicious or ignorant sorts.
This very dynamic, however, should make clear that the new self-sanctioned revolutionary political visionaries are not genuinely against privilege and discrimination. Nominally, they simply want some for their clients; incidentally, of course, for themselves.
Under cover of great supposed virtues, powerful and actual vices may well lurk, and we should constantly be aware of and make appropriate mental and political allowance for such facades. One of the points Sowell makes is that the desires of a segment of the population to right their perceived wrongs, when fanned into flames by ideological agitators, are at times capable of ruining the entire economy for the sake of the claims of a subsidiary class or cause. The superficial name for this is social justice; its ordinary name might better be envy: If I cannot have it, you certainly shall not have it.

The Genie’s Promise

Relevant to this I once asked a relative who had toiled long in the U.S. Foreign Service what the people of a Communist nation he had worked in were like. He thought for a moment, and then proposed that perhaps he could best describe them in a story they told about themselves. A peasant tilling his field has his plow tripped by what he presumes is a rock. When he goes to see it, however, the object turns out to be a large jar, which he opens. Out springs a genie who, delighted at his release after several centuries of imprisonment, promises the peasant whatever he wants.
This promise has one contingency, however: Whatever he wants, his neighbors will get double! Without altogether too much hesitation, the peasant specifies that, then, he wants to be blind in one eye.
We may of course hope that such characterizations are merely caricatures.