In Quest of Justice; R. Foley

Upon reflection, the suggested boundaries demonstrate no imped iment to analysis of justice. First, mistreatment of animals belonging to (the property of) anMr. Foley, a partner in Souther, Spaulding, Kinsey, Williamson & Schwabe, practices law in Portland, Oregon. RIDGWAY K. FOLEY, JR. other human being finds inclusion in the human relationships posit ed. If I drown your pet kitten, I exhibit malice toward you in a subtly different way than if I punch you in the nose, but malice all the same. Second, man-non-man relation ships manifest something concern ing the nature of man-the-actor; the characteristics impelling one to kick a dog or to torture a horse generally reveal themselves in other human affairs. Thus, exclu sion of the specific example does not necessarily exclude consider ation of the fundamental attrib utes. Third, human-impersonal object liaisons probably do not deserve consideration within the ambit of the notion of justice. Rather, my treatment of spiders, of forests, of farmhouses, and the like (beyond any incidental human relation ships) concerns my goodness and my essential nature. As such, the matters rather become issues for determination between me and my 301 302 THE FREEMAN May God; in other words, they relate to justice in the broader sense, that is, justice beyond the power of man to effect and affect. Thus, man can affect events in this mil ieu to the extent that he can alter his life and mold his character to conform to the nature of the uni verse, but he has no power to al ter the standards and norms which measure that nature. Justice, as we are concerned with it in this essay, considers only relationships between two or more human beings where the conduct of one can af fect the life of another.

Justice: The Seminal Norm One quality, above all others, dis tinguishes man from other inhab i tants of this planet: he possesses the power to make choices (rea soned decisions between alterna tives) and each choice he makes constitutes a moral choice. Concomitant to this quality ex ists the power of man to affect the lives of his fellow human beings. Man can attract, persuade, or force other men to act in the way he de sires them to act. Man's choices af fect not only the actor but also other persons resident, now or at other times, upon the landscape. In a very real sense, what I do today can expand or limit the choices available to those in my commu nity and to those who may come after me. Thus, we can define justice as respect for free choic'e. Justice de mands that no man interfere with choices affecting the life, liberty, or property of another human be ing by coercion, fraud, or duress.

Each man must be left free to de termine his own destiny, to seek his own goals, to live his own life as he sees fit. No one can effectively live a life for another and none should try to do so. Spoken in an other manner, each individual should always treat other human beings as human beings, never as objects. To treat a person as a per son compels the actor to respect the essential humanity of his fel lows, and that essential humanity can be defined as one's right to choose. Each person exists as a child of God, and deserves that treatment and respect which should be reserved for the Creative En ergy underlying creation, whether termed a personal God or an im personal natural law. Justice obligates man to eschew violence and to stress attraction. 1 Human beings may justifiably em ploy force in limited circumstanc es: to repel invasion, to quell in surrection, to impede the imposi tion of force and fraud upon un1 See Read, Leonard E., "How to Ad vance Liberty" (The Foundation For Economic Education, Inc., Irvington-on Hudson, New York, 1964).

1974 IN QUEST OF JUSTICE 303 willing combatants, and to settle disputes. Writ large, force should only be utilized to parry force. "Might does not make right" un derlies the whole proposition. Moreover, one should only employ that amount of force necessary to discourage or rebuff the violence initially practiced; any greater ap plication represents a coercive in tervention into the arena which must be left unfettered to the choice-making apparatus of free men. Justice Reflects the Nature of Man At least three conflicting views of mankind find current accept ance in political philosophy. For ease of analysis, we may refer to these as statism, anarchy, and vol untarism. 2 Quite possibly, no imperfect hu man being perfectly fits the cate gory of statist, anarchist, or vol untarist. Each of us may profess principles to which we aspire, and from which we fall short. Thus we speak of a statist as one who be lieves in state intervention into the lives of men, to some degree beyond 2 I refer to a voluntarist as one who accepts a limited government, a state employed to discourage coercion and misrepresentation and to provide for common settlement of disputes. "Free dom philosopher" and "libertarian" have often gained favor as synonyms, but at least the latter has been recently co opted by all manner of thinkers, render ing categorization most difficult.

the intervention accepted by the voluntarist which is solely to repel force and fraud. Obviously this appellation does not apply with equal zeal to each person;3 it may seem ill-conceived to apply the identical brand to Marxians, dem ocratic socialists, and to business men who favor subsidies and price controls. Yet each, in his own way, represents the point of view that encourages state action to deprive free men of free choice. For sake of the present analysis, then, stat ist refers to one favoring partial or total state intervention in hu man affairs beyond the prevention of force and fraud, anarchist re fers to one who decries all states and all state activity, and voluntar ist refers to one who believes that the state possesses limited valid functions: the prevention of force and fraud and. the administration of common justice. An individual's conception of justice mirrors his view of the nature of mankind. To the statist, man represents a perfectible being, capable and suitable for molding by the social engineer. Each per son possessing this philosophy, in greater or lesser dimension, sees man as an object, as a creature whose choice may be limited with justification and impunity. To the 3 The use and application of labels in the political spectrum merit separate treatment.

304 THE FREEMAN May extent that he adheres to such a tenet, the statist treats man as something less than human. The anarchist likewise views man as perfectible, but as volun tarily or self-perfectible. Because man can achieve these heights, the state represents an unnecessary appendage to society. Justice would not countenance the use of organ ized force for the anarchist - man must retain a full circle of alterna tives, even to the extent of visiting violence upon his neighbors. While a single paragraph cannot recon cile the pacifistic anarchist view with the concept of private justice and retaliatory force, and while such a subject merits deeper in spection,4 suffice it to say that the anarchist sees man as so perfect ible that no constriction of his range of alternatives accords with justice, so long as the actor re mains willing to accept the physi cal, natural, and moral conse quences of his choice.

The voluntarist holds quite a different view of human nature and occupies a perch midway be tween statism and anarchy. He per ceives of man as fallible and im perfectible, although capable of improvement. Because no person can achieve perfection, or even closely approach that ideal, no in4 See, e.g., LeFevre, Robert, "Justice on Trial," Reason (Vol. 3, No. 11) Feb ruary 1972, page 18. dividual from the mass can, or ought to, dominate the life of an other, equally infinite, individual. Since man retains a dark side, a predilection to violence, and fails to act with perfect reason, force lurks pervasively throughout the world. Force may be reasonably re buffed only by organized force, else man's lot degenerates into civil chaos. Private retaliation invites a misreading of the situation and misapplication of coercive power; misapplication of force invites re taliation when the retaliatory force exceeds that which is necessary to allay the fraud and coercion ini tially instituted. Examples of mis use of private force litter history books: private armies, vigilante systems, and private detectives, acting without restraint of law, seem predisposed to avoid charity and deny recognition of personal rights. Private systems of protec tion and the settlement of disputes depend upon a perfect rationality by at least the vast majority of cit izens occupying a given terri tory.

The voluntarist doubts that man can achieve that station; until he does, man's nature requires a lim ited collective force in accordance with a respect for free choice. A Fundamental Premise: Man in Conflict Almost all individuals, what ever their persuasion on the polit1974 IN QUEST OF JUSTICE 305 ical or philosophical spectrum, agree that human beings conflict and disagree with one another. An imperfect being can anticipate no other result. Some men cannot con quer their sinister side and exhibit a proneness to violence and deceit. Choice, the most individualistic at tribute of human nature, presup poses that choosing beings will pick alternative courses of conduct, and that with billions of persons exercising free choice, some con flict of choice will be inevitable. 5 Most human conflicts resolve by voluntary means. I meet you on the sidewalk and one of us steps aside to allow the other to pass. My stereo disturbs your slumber; I re duce the volume willingly when you ask. Doe and Roe both reach the bargain counter at the same time and each wishes to purchase the last remaining item; the sales clerk makes an immediate choice to sell to Doe, thinking that he appear ed first and Roe, while disap pointed, turns away. Clearly, the more voluntary accommodation possible in society, the better.

Nevertheless, some conflicts do not afford a simple resolution, be5 Such is the nature of freedom that millions upon millions of value judg ments and choices cause basically little conflict. Freedom works better than co ercion because it approaches Infinite Truth. See my essay "Choice or Chains" (April 1974 Freeman) for an examina tion of this phenomenon. cause of the rational difficulty of choosing between the two or more conflicting claims, or because of the imperfect personalities of the par ticipants. The statist tends to view more conflicts as incapable of solu tion by voluntary means than either the anarchist or the voluntarist, and he exhibits no hesitancy in call ing in the troops to coercively de cide each and every issue the way some group in power believes that it should be solved. Such fetters manifest little or no respect for free choice and can be character ized as unj ust.

The anarchist and the volunta rist, on the other hand, believe in the voluntary settlement of dis putes in the widest possible degree consonant with good order. They differ in the mechanism to be uti lized in solution of disagreements irreconcilable by voluntary means. The voluntarist opts for a limited government function - the force ful administration of justice which will settle controversies which the parties cannot settle themselves and which will compel acceptance of the decision. The an archist favors voluntary arbitra tion and private courts, apparently believing that the presumably rati onal parties will accede to the juris diction of these, tribunals and ac cept an unfavorable decision. Pra.c ticing lawyers and experienced litigants display familiarity with 306 THE FREEMAN May recalcitrant parties who refuse to pay judgments voluntarily or to answer questions on cross-exami nation or who disrupt courtrooms with obnoxious conduct. Absent sanctions and an agreement to dis agree as rational beings, voluntary arbitration and private courts offer no compelling answer to the prob lem.

In any event, individuals illus tra ting all phases of the spectrum recognize the need for rules to settle disputes, in either a private or a public milieu, and that such norms must accord with justice. The statist sees more disputes sub ject to arbitrary and coercive de termination than his brethren, but this in no way gainsays that need for rules of decision. The an archist wishes contests adjudi cated by private agencies, but such tribunals must decide on the basis of rules harmonizing wi,th justice. Let us examine certain fundamen tal principles which accord with justice as respect for free choice, rules which can produce a volun tary society upon faithful adher ence, recognizing that one cannot exhaustively state all premises and qualifications appropriate to these norms in so short a space. 6 6 Many of these concepts are open textured and require definition, which will not admit of perfect solution. See Foley, Ridgway K., Jr., "The Myth of the Perfect Solution," 23 Freeman No.

2,104,111-113 (February, 1973). Justice: The Subsidiary Norms • Each man should keep his promises. Freedom to contract with regard to all manner of ac tivity carries with it an interre lated aspect, similar to the fact that individual responsibility serves as the reverse side to per sonal liberty. Every man should be required to adhere to his solemn promises to the extent permitted by external forces and to the ex tent that another human being has justifiably relied upon those promises, if the promise was not initially extorted by force or fraud. Application of this rule does not denigrate free choice: it re spects it. If one voluntarily chooses a course of conduct af fecting another person, the actor has predetermined a result and should not be heard to mulct the other party of his due. One can refuse to contract altogether, but once he enters into a contractual relationship he must be held bound by the terms of the agreement he actually entered, and no other.

• Every individual should pay for harms voluntarily caused. If man receives the right to act freely and to choose his own des tiny, it follows that he must accept the moral responsibility for his choices. One result of fr.ee choice 1974 IN QUEST OF JUSTICE 307 witnesses occasional collisions be tween conflicting human beings. If one voluntarily acting human being causes harm to another per son by virtue of fault, be it an intentional or careless act, the ac tor should be required to com pensate the victim to the extent of his harm, and no more. Problems of causation, fault and amount of damages have plagued legal theorists for cen turies, much as the problems of the implication of promises and the objective manifestations of assent. Mankind cannot fully know and appreciate the interweaving of cause-and-effect, nor can it rec ognize all avenues of fault with out looking inside the human mind and soul, nor can it measure the harm directly attributable to a single act. Each problem can be solved only by finite approxima tion applied by fallible judges.

The principle serves as a lodestar to be sought as an ultimate goal. • Each individual should pay his own way. Every choice carries with it a real cost, sometimes clearly apparent to an observer, sometimes hidden and awaiting analysis. As nearly as possible, each choosing human being should accept the consequences of his con duct, and one consequence is the cost. Homely put, "there ain't no such thing as a free lunch." Someone must pay. A welfare payment or a subsidy puts money substi tutes in the pocket of certain citi zens, but it requires a taking from others in the community. Mini mum wage laws force marginal workers from the market and de prive them of (cost them) their dignity. Examples proliferate. Ap plication of this precept requires assessment of real cost in terms of Bastiat's dictum: The Seen and The Unseen. • No one is entitled to a wind fall. Administration of justice should prevent unjust enrichment.

Just as each man should pay his own way, he should pay no more. If mischance or external forces occasion a loss to one person and a gain to another without a vol untary trade, the office of law should be to restore the parties to their preexisting status. • The c'reator of value should determ,ine its retention and distri bution. Man creates value. He ap plies his mind and his labor (di rect or stored [capital]) to na tural resources and produces goods and services which carry with them a subjective value. Thus, man also assesses value. Nothing material can be said to possess an inherent value absent relationship to a human being. Individuals place value on goods and services; 308 THE FREEMAN May they express that value by the value they have acquired which they are willing to trade for those goods and services. The value discussed, sometimes denoted property, belongs to the creator (owner) or his designate.

Thus, justice must recognize the right to private property in order to respect free choice. An essen tial collateral tenet of justice im pels that retention or distribution or destruction of value must rest with the creator of that value or his transferee or nominee. 7 Man denies justice to the extent that he sanctions nonproducers who dominate or destroy value created noncoercively by others. Just as man must pay his own way, so also must man not be compelled to pay someone else's way. • Each citizen of a state should bear an equal share of the expense of governance. Each individual citizen residing in a territory des ignated a state should bear an equal share of the common burden which includes the expense of ad ministering that state. He should pay for any services directly ren dered to him at his request. Each citizen benefits from the protec tion rendered by the state and 7 See Read, Leonard E., "Justice ver sus Social Justice," Notes From FEE (The Foundation For Economic Educa tion, Inc., Irvington-on-Hudson, New York, May 1972).

from the alleviation of civil chaos and no one can properly claim that one person acquires a greater benefit than another. In addition, any citizen receiving a direct ben efit at his request should pay his own way, including payment for such a service. • No individual or group of in dividuals should initiate force or employ fraud against others. Only one man-concocted limitation upon free choice deserves respect: no man, acting singly or collectively, should act fraudulently or coer cively toward his fellow man. To the extent that he violates this maxim, justice approves applica tion of counterforce by the victim or by society at large, but the retaliatory force must not exceed that amount absolutely necessary to dispel the initial act else the retaliator, individual or state, be comes the aggressor and violates this norm. • Treat similar instances in sim ilar fashion. Anglo-American common-law tradition rests in part on the ancient concepts of stare dec,isis (the matter has been de cided before) and res judic'ata (the thing has been determined previously) . These Latin legal tenets represent application of the fundamental norm that similar situations or disputes shouln be 1974 IN QUEST OF JUSTICE 309 decided in harmony or like fash ion with other disputes of the same nature, involving either the same or different parties.

Similar treatment of similar sit uations finds justification in sev eral reasons. First, the norm rests upon the principle of predictability. Citi zens ought to be able to plan their lives in full knowledge of the con sequences which will attach legally to their conduct. Second, the rule finds support in the concept of reliance. In sub stantive commercial and contrac tual areas of life, where planning performs a salient function, par ties ought to be able to rely upon certain results as a consequence of their actions. Third, earlier decisions contain the accumulated wisdom of the ages. The law builds on past ex perience and should not be lightly disregarded. Once courts of justice carefully consider a case and ren der a reasoned decision, transient causes ought not disturb the prin ciple determined. Fourth, failure to adhere to de cided rules increases the costs of the administration of justice. Ab sent the effective role of prece dent, more cases containing recur rent issues will have to be decided by trial and appellate courts.

Fifth, the sound use of prece dent promotes a government of settled laws, not rule by finite man. A consistent result from case to case follows in the Anglo American tradition as opposed to the civilian or Continental system which disregards stare decisis. Sixth, in any jural system or decision-making context, a natural tendency exists - the human incli nation to look over one's shoulder to discern what was done before. The doctrine of treating like cases in like manner recognizes this tendency by providing an orderly method for use of past experience, a convenient tool for quickly and easily disposing of disputes. Seventh, finally, and most im portantly, adherence to precedent accords with the essential nature of justice, respect for free choice. Decisions once reached upon a ra tional basis should not be lightly overturned. To do so alters our government from one of laws to one of men. A flexible "rule" is no rule at all, but amounts to meas uring "justice" by the length of the chancellor's foot. Respect for free choice impels recognition of the consequences attaching to the operation of that choice-mak ing power, and if these conse quences can flow willy-nilly with out predictability, man denigrates the essential humanity of his fel lows and bears no responsibility for his moral choices. One cannot meaningfully choose unless his 310 THE FREEMAN May choice can affect and effect results. 8 • Adjudge all men equally be fore the law. Interrelated with the concept of deciding similar cases in similar fashion, justice also re quires equality before the law. In those arenas in which law (organ ized coercion) plays a salient role, each man must receive identical treatment. Favoritism does not belong in a just society.

One must scrutinize this norm with caution and avoid the misap prehension so common today. Mod ern society witnesses a. false egal itarianism stemming from misuse of the words of the Declaration of Independence ("all men are created equal") and brought to frui tion during the French Revo lution ("Liberty, Equality, Fra ternity") . Men are not equal; their distinction and their indi viduality represents the vitality of the human race and an essen tial attribute of mankind. Men possess different appearances and diff ering talents, distinct life spans and dissimilar values. En forced equality means enforced mediocrity, where all individuals are cut and stretched to fit Pro crustes' Bed. Coerced egalitarian ism demands application of de structive force to individuals and, 8 See essay cited in footnote 5, op. cit. except in the limited areas of pre vention of fraud and force and administration of justice, justice disparages the use of force.

Equality before the law imposes a burden upon mankind, acting as a coercive state, to provide both substantive and procedural due process to all citizens vis-a-vis in terpersonal and individual-state relations. For example, no man shall be tried for a crime in absentia; each man is entitled to his day in court in both civil and criminal causes; every citizen is entitled to fair notice and a com plete hearing before a competent and unbiased tribunal; rank and station shall not determine appli cation of sanctions; open trials prevail over secret Star Cha.mbers; norms should not apply retroac tively. A host of protective and pre ventive rules assure that each man brought to trial and faced with potential loss of freedom will re ceive equal treatment to other in dividuals similarly situated. Conclusion. Justice lies within. It repre sents an ideal toward which we must strive in our relationships with fellow human beings. If each of us will treat each other human being as ,a person, and respect the essential humanity of that person by respecting his right to free choice, we will achieve justice.