Private Property; A. Flew

Hayek explained how he came to conclude "that the Emperor had no clothes on, that is, that the term 'social justice' was entirely empty and meaningless,"l and "that the peo ple who habitually employ the phrase simply do not know themselves what they mean by it and, just use it as an assertion that a claim is justified without giving a reason for it."2 Certainly, as Hayek proceeded painstak ingly to show, this cant expression is usually employed quite thoughtlessly. Few if any of those who habitually employ it have even attempted to produce a systematic and con sistent rationale for its application. But this is still not adequate to show that it is "entirely empty and meaningless." For there is in fact sufficient regularity in the actual usage of the expression "social justice" to provide it with a meaning, albeit a meaning that is somewhat vague and variable. Let us approach the problem of discovering this meaning a little indirectly, by referring first to the fact that Hayek dedicated his most famous work, The Road to Serfdom, "to the socialists of all parties." In his preface to the second edition, which appeared nearly 30 years after the original publication, Hayek declared that he was still prepared to defend all the book's main conclusions. But he warned against possible misunderstandings Professor Flew resides in Reading, England.

arising from terminological changes: "At the time I wrote socialism meant unambiguously the nationalization of the means of produc tion and the central economic planning which this made possible and necessary." But since then "socialism has come to mean chiefly the extensive redistribution of incomes through taxation and the institutions of the welfare state."3 In the usage of the socialists (or in the United States the liberals) of all parties, who are the chief, if not quite the only employers of the expression "social justice" it, and what for many is apparently the equivalent ex pression "equality and social justice," can be most illuminatingly defined as referring to what they themselves see as the ideal eventual distribution of goods and services of all kinds; an eventual redistribution which is to be achieved primarily by "the extensive re distribution of incomes through taxation and the institutions of the welfare state."

Hayek in his discussion of the expression "social justice" was also wrong to maintain that those who use it "just use it as an assertion that a claim is justified without giving a reason for it." For anyone asserting that some policy is required by a kind of justice is in fact giving what-if but only if their assertion were true-would constitute the best of reasons. The truth, however, is that social justice as customarily conceived is pre cisely not a kind of justice. On the contrary, such "social" justice es299 300 THE FREEMAN • MAY 1997 sentially involves what, by the standards of old-fashioned, without-prefix-or-suffix justice must constitute a paradigm case of flagrant injustice: namely, the abstraction under the threat of force (the taxing away) of some of what must be defeasibly presumed to be the justly acquired income and capital of the better off in order to give it (less, of course, some often substantial service charge) to those whom previous just acquisitions or lack of just acquisitions have left worse off. The tacit and even sometimes explicit identifica tion of justice with equality is equally erro neous. For the rules of justice, like all rules, require not that all individuals, but only that all relevantly like individuals, should be treated in the same way. Who, for instance, would recognize a system which insisted that the guilty should be treated in exactly the same way as the innocent as a system of justice?

Most of those professing concern to pro mote what they call social justice conceal from themselves the force, indeed even the possi bility of such objections, by tacitly assuming that the sum of all the incomes received and all the wealth owned within some nation is already the collective property of that nation. Hence it is available, free of all morally legitimate prior ownership claims, for redis tribution at the absolute discretion of (social ly) just redistributors. Rawls and Social Justice A remarkable example of the making of this assumption was provided by John Rawls in A Theory of Justice. This book has had more influence on, and has been more widely cited by, sociologists, economists, judges, and pol iticians than any other philosophical work of the present century. Although Rawls entitled his 607-page book A Theory of Justice, he revealed as early as page seven that his true subject was "that of social justice." Yet at no stage does he at tempt to show how, if at all, this is supposed to be related to justice as traditionally under stood. He pays no attention to the warning about the need for definition which Socrates is scripted to give in the final sentence of the first Book of Plato's treatise on justice. "For if I do not know what justice is I am scarcely likely to find out whether its possessor is happy or unhappy."4 Indeed it is only on his 579th page that Rawls explains that he was eager "to leave questions of meaning and definition aside and get on with the task of developing a substantive theory [not of social justice but] of justice."

The fundamental principles of what Rawls calls social justice are derived from a hypo thetical social contract. Although he claims that "Throughout the choice between a pri vateproperty economy and socialism is left open ... ,,5 the hypothetical contracting par ties who "in the original position" are to make the hypothetical social contract nevertheless have to take for granted the ultimately col lective ownership of all wealth and income. "For simplicity," rather than for any more substantial and compelling reason, they are required to "assume that the chief primary goods atthedispositionofsocietyare rights and liberties, powers and opportunities, income and wealth.,,6They are to assume, that is to say, that income and wealth are "at the disposition of" that hypostatized collectivity "society"; altogether uninhibited, it seems, by any morally legitimate prior property claims. In what is presented as a theory of justice readers ought to have been astonished to discover this assumption of the collective ownership of all wealth and income. But they should have then been utterly flabbergasted to find that, in explaining "The Main Idea of the Theory," Rawls asserts that "Once we decide to look for a conception of justice that nullifies the accidents of natural endowment and the contingencies of social circumstance as counters in the quest for political and economic advantage, we are led to these principles. They express the result of leaving asidethoseaspectsofthe socialworldthatseem arbitraryfrom a moral point ofview."7 The preposterousness is to present this as a first and necessary step toward developing a particular conception of justice. For doing justice has traditionally been defined as ren dering to each their due. The version of Ulpian's definition employed in the Institutes ofJustinianis inscribed on a wall of the library PRIVATE PROPERTY AND "SOCIAL" JUSTICE 301 of the Harvard Law School: "To live honour ably, not to injure another, to render to each his due." The expression "his due" or, better, "their due," is here naturally construed as referring to the several deserts and entitle ments of different individuals, the deserts primarily under the criminal and the entitle ments under the civil law.

Certainly, if all possible grounds for any differences in deserts and entitlements are thus to be dismissed as morally irrelevant, then indeed-always allowing that anyone is still to deserve or to be entitled to anything at all-it does become obvious that everyone's deserts and entitlements must be equal. Yet it is precisely and only upon what individuals severally and individually are, and have done or failed to do, that all their several and surely often very unequal particular deserts and entitlements cannot but be based. It is, there fore, bizarre superciliously to dismiss all·this as irrelevant: as merely "the accidents of natural endowment and the contingencies of social circumstance." The objection that "social" justice is not a kind of justice is often countered either by urging that the world would be a better place if the distribution of income and wealth were different from what it actually is or by pro testing that this objection is at best trivially verbal. It is easy to agree with the first of these contentions. In my personal ideal world, for instance, successful pop stars would not be voted to become millionaires by the purchases made by teenage children. But this is simply irrelevant. For it is one thing to justify a situation, that is, to show it to be desirable or excusable or in some other way preferable to the available alternatives, but it is quite an other thing to justicize it, that is, to show it to be not just "socially" just but plain old fashioned, just.

To appreciate that and whythe issue is most emphatically not trivially verbal it is sufficient to ask and answer the question of why people are so keen to maintain that their actions or policies are indeed (socially) just. It is of course because they want to arrogate to these actions or policies the psychological associa tions which are presently linked with, and the logical implications which are presently car ried by, employments of the word "just." Very understandably they want thus to see them selves and to be seen by others as occupying the moral high ground, and they want to see their opponents as ex officio callous, selfish, and immoral. Perhaps even more importantly, though this is rarely recognized, those who share the socialist ideals of "social" justice need to equip themselves with what, if only it were true, would constitute a decisive answer to an otherwise properly embarrassing question: By what right are you proposing to deploy the forceful machinery of the state in order to impose upon all concerned your own personal or party vision of an ideal society? For justice is precisely not an expression of individual or group preferences, not such an individual or party vision of an ideal society. To appeal to justice is to appeal to a standard logically independent of all individual and collective interests or preferences. That is why everyone has to allow that what is prescribed by (moral) justice may properly, though not always pru dently, be enforced by (legal) law. This point was put most decisivelyby Adam Smith in the penultimate paragraph of chapter one of Section II of Part II of his other masterpiece, The Theory of Moral Sentiments: The man who barely abstains from violating either the person, or the estate, or the reputation of his neighbours, has, surely, little positive merit. He fulfills, however, all the rules of what is peculiarly called justice, and does everything which his equals can with propriety force him to do, or which they can punish him for not ~~ D 1. F. A. Hayek, The Mirage of Social Justice (London: Rout ledge and Kegan Paul, 1976), p. xi.

2. Ibid., p. xi. 3. F. A. Hayek, The Road to Seifdom (London: Routledge and Kegan Paul, Second Edition 1976), p. viii. 4. The Republic, S 354C. 5. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 258. 6. Ibid., p. 62: emphasis added. 7. Ibid., p. 15: emphasis added.