On Justices

Or on Adam Smith on justice

I’ve been meaning to get this written for a long time, mostly so I can reference it by link instead of feeling the need to explain it all over. Or, more likely, simply working around the topic so I don’t have to explain it.

That is some sassy sword holding. (Photo by Joel & Jasmin Førestbird on Unsplash)

Much knowledge on fundamental moral and philosophical topics has been lost to the modern world. Not lost in the gone forever sense, but more in the “put in a box in the back of the closet a while back and now I don’t remember I even have it anymore, much less where it is,” sense¹. Post modernism is perhaps to blame, or a terrible education system, or just Marxism in general. It is hard to say. Clearly, however, we find ourselves struggling in modern discourse to rediscover concepts and distinctions that had previously been solved² long ago. We are left reinventing the wheel while thousands of technical documents on wheels sit idly in the back of that closet.

The primary wheel we’ve misplaced, the central bearing on which so much of moral philosophy must spin, is justice.

We use the word a great deal, increasingly of late it seems, often in conjunction with some noun to make a special case of a movement: social justice, mountain justice, food justice, etc. As with most modern overuse of words, however, all these aspects merely lean on the word’s important connotations while dissipating those same connotations through over broadening the category. It is hard to say with a straight face that one is against justice in the abstract, yet most movements with the word “justice” in the name are highly questionable in their particulars³.

Justice is so important to be clear upon because it is the one virtue through which we can morally compel others via force. We might look askance at people who misuse “irony” and “fraught”⁴ but they are simply wrong, and their misuse only highlights their ignorance. Applying justice incorrectly to a matter is quite different, as it implies that the matter is worth killing over; moreover, not only worth killing over, but morally obligatory to inflict such punishment as is necessary.

When looking for a functional definition of justice and its types, we can look to Adam Smith’s “Theory of Moral Sentiments”⁵. Smith looks into the use of the word by various philosophers (in Latin and English) and distills it down to two key types⁶. These types are critical distinctions in understanding both what justice means, and why we need to be careful in using it. It is these two types we will focus on here:

1. Commutative Justice (CJ)

2. Distributive Justice (DJ)

Let’s give them a look!

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Subtypes of Justice

Smith considers justice to be one of the four cardinal virtues, but notes that when people use the word justice, they mean one of two things.

Smith describes CJ thusly⁷:

The first sense of the word coincides with what Aristotle and the Schoolmen call commutative justice, and with what Grotius calls the justitia expletrix, which consists in abstaining from what is another's, and in doing voluntarily whatever we can with propriety be forced to do.

and with regards to DJ:

The second sense of the word coincides with what some have called distributive justice, and with the justitia attributrix of Grotius, which consists in proper beneficence, in the becoming use of what is our own, and in the applying it to those purposes either of charity or generosity, to which it is most suitable, in our situation, that it should be applied. In this sense justice comprehends all the social virtues: There is yet another sense in which the word justice is sometimes taken, still more extensive than either of the former, though very much a-kin to the last; and which runs too, so far as I know, through all languages. It is in this last sense that we are said to be unjust, when we do not seem to value any particular object with that degree of esteem, or to pursue it with that degree of ardour which to the impartial spectator it may appear to deserve or to be naturally fitted for exciting. Thus we are said to do injustice to a poem or a picture, when we do not admire them enough, and we are said to do them more than justice when we admire them too much. In the same manner we are said to do injustice to ourselves when we appear not to give sufficient attention to any particular object of self-interest. In this last sense, what is called justice means the same thing with exact and perfect propriety of conduct and behaviour, and comprehends in it, not only the offices of both commutative and distributive justice, but of every other virtue, of prudence, of fortitude, of temperance. It is in this last sense that Plato evidently understands what he calls justice, and which, therefore, according to him, comprehends in it the perfection of every sort of virtue.

Smith, however, limits the virtue of justice to simply CJ. Justice is the virtue “of which the observance is not left to the freedom of our own wills, which may be extorted by force, of which the violation exposes to resentment, and consequently to punishment.” (TMS II.ii.I.5) That is, when Smith talks justice outside of describing the use of the word in other, earlier writers, he is talking about CJ, what others might force us to do. DJ is simply the proper application of every other virtue⁸.

This distinction is critical to understanding justice and applying the logic of the terms correctly, as well as recognizing the sleight of hand at play when applying the word justice to political movements.

Thinking about CJ

What does it mean when Smith says “whatever we can with propriety be forced to do”? This is a key aspect, which hinges on the words “propriety” and “force”.

Propriety in Smith means simply that which is proper and accepted, the minimum standards of behavior. A key aspect is that meeting the requirements of propriety does not get you applause, but failing to meet them subjects you to disapproval and blame. No one gets a promotion for remembering to wear pants to work every day, but forget just once and you never hear the end of it.

If we can do something with propriety then, that means we can do it without blame or censure; others will accept and approve of the behavior, though not necessarily applaud or praise it.

Force in Smith’s usage here is coercive force, inflicting harm to make you behave accordingly. To use force with propriety is a very high hurdle Smith notes, as people generally are loath to go along with harming another, or even expressing great anger. Indeed, using force to coerce behavior is generally seen as a direct violation of justice, an inflicting of injury⁹.

In other words, my words, a breach of commutative justice makes actions that would themselves be blamable and punishable proper in the eyes of others. If you can harm someone for doing or failing to do something, and everyone approves, that something was a breach of CJ.

This demands an example, and fortunately they are common. Shooting my neighbor is generally a violation of CJ, unless he tries to break into my home. Tackling a stranger and knocking him unconscious will get you arrested, unless the stranger was abducting a child. Stealing is wrong, unless you are stealing from the enemy in time of war.

As the oeuvre of action films demonstrates, we are quite willing to approve or disapprove of the same action in different contexts, and will get behind some truly dire behavior when the situation warrants¹⁰. As history demonstrates, we will in fact demand brutal punishments for heinous offenses, punishments that would invoke resentment and punishments of their own if carried out without proper provocation.

So what sorts of things will make you deserving of a smack down in the eyes of others? Well… it depends. Daniel Klein often uses “messing with other people’s stuff” as a general shorthand¹¹. How we define "stuff", "messing with", and "other people's" changes from place to place, but generally don't steal, murder, rape, kidnap, etc. covers the big ones. Pretty much every culture has strong laws against these behaviors, typically with severe punishments, even if they disagree on who owns what, or whether reputation counts as stuff.

However, we find a fairly wide variety in the things someone can be punished for with propriety across societies. One reason I favor a very open ended definition of CJ as “whatever people consider justification for doing things to you they would otherwise condemn” is that what is quite fine and acceptable some places will get you killed in others. What is consistent across cultures, however, is that the rules of CJ are “grammatical” to use Smith’s word¹². The rules are clear, and you are not praised for getting them right but punished for getting them wrong. Why the rules should always be clear is apparent: there is a very steep cost to getting the rules wrong so fuzzy rules lead to needless conflict, and humans are pretty good at working out how to avoid high cost conflicts through rules¹³. In general, people disapprove of random, arbitrary injuries, usually describing them as "crimes".

In sum then, CJ covers those things that we can force people to do through coercive harm without ourselves violating justice in the eyes of others. To meet this standard there must be wide agreement on what the rules are, and that the person being harmed violated those rules.

So what about DJ?

The quick answer would be “well, that’s everything else.”

A more satisfying response would be that although a behavior might not be something we are willing to see someone harmed over, it might well make us like a person a lot less. On the other hand, someone might do something so wonderful, so above and beyond what we expect of others, that we feel that we should praise or even actively reward their actions, and would feel ashamed of ourselves if we failed to do so¹⁴.

The three main differences then are the nature of the rules (“loose, vague and indeterminant” as Smith puts it), the impropriety of forcing adherence to the rules, and the potential for deserving merit, applause and even reward for excelling.

Contrasted to the CJ’s dreary “do it or we can make you do it”, the realm of DJ is where humans flourish and achieve glory, all while bickering over whether they did or not.

The “becoming use of what is our own” is not something anyone can prove or force someone else to agree with, but rather a constant debate and discussion of what the good life is. We can disagree on the merits of a movie, book or philosopher. We can argue what restaurant is best. We can have different ideas about how much money we should give to charity, or even to which ones. You may disapprove of how long my grass gets before I mow it, and I can think you spend a ridiculous amount on your car. We will judge everyone’s behaviors as good or bad, but that judgement doesn’t go so far as to make it appropriate for me to steal your car and trade it in for a more sensible one anymore than you could with propriety mow my lawn without my permission, or force me at gun point to get mowing¹⁵.

That debate, the constant searching and refining of our thoughts on what is good, is, I think, exactly what leads to better than average uses of what is our own, inspiring people to praise and reward each other. After all, if it is clear what must be done it is hard to get really excited about doing it; we humans have a tendency to ignore the difficulty in doing something when the process is well understood. When there is ambiguity on how to do something, or most people simply don’t do it well, we tend to appreciate the doing of it well all the more. A very well manicured lawn doesn’t elicit much praise, but start making cutlery in your driveway and people will stop by to talk about how interesting they think it is. Find someone else who objects to the use of “fraught” without describing what the situation is fraught with, and you can esteem each other while going on about that for quite some time¹⁶.

I think this relates as well to the very sterile nature of modern discourse. Everything has been flattened down to a “check the box” approach, do these things or you are wrong, turning every social interaction into meeting propriety or deserving ostracism. This totalizing tendency results in there being no room for ambiguity and thus excellence, only punishment for failure. That’s a story for another day, however.

How We Use Justice

So CJ is that which we can, with propriety, be forced to do; DJ is what other people think we ought to do, but shouldn’t kill us for. I might not like your dismal view of Firefly, but it would be wrong of me to strap you to a chair and administer electric shocks until you change your mind. A company can fire an employee for expressing views they don’t like, but that doesn’t mean the company shouldn’t be held contemptible and deserving of losing all their customers who disagree. Of course, if the company had a contract with the employee stating they could not be fired for expressing views, then that would be a violation of CJ and the company can be forced to honor their contract.

When talking of the virtue of justice, we would probably do well to limit ourselves to CJ as Smith does. Acting with justice is to not steal, murder, slander or generally mess with people’s stuff. Questions of DJ, making a becoming use of our own stuff, that is often better described via applications of other virtues (benevolence, fortitude, prudence etc.) I think this is very useful for clarity, as well as avoiding the motte and bailey move of many who use justice as a weasel word to enforce their mere preferences on others by force.

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Thanks for reading!

PS: Thanks to

Harrison Koehli

for catching my typos!

1. Every time some campus Marxist regurgitates “But, how does one even get property? It’s totally made up!” into an otherwise pleasant conversation, I want to hit him with a copy of Grotius. Not one particular book, but the entire corpus.

2. Or at least highly defined and heavily worked on.

3. See also: States with “Democratic”, “Republic” or “People’s” in their names are generally the least democratic, republican or concerned for their people of all states.

4. Don’t get me started on ‘begs the question’…

5. The link above goes to the Adam Smith Works’ online version. Quotes in the text here come from the Kindle version, due to convenience in searching/copying text. For general use, I highly recommend the Liberty Fund Glasgow Edition hard copy, referred to here as TMS. References will be to sections as detailed in the hard cover, eg. II.ii.I.5.

6. Possibly three types, although the third type is largely a subset of the second it seems.

7. See VII.ii.I.10 in the Liberty Fund edition of Theory of Moral Sentiments (TMS).

8. Going forward, when I will us CJ to refer to the virtue justice as Smith uses it.

9. I am fairly certain this is limited to physical force, although e.g. a fine backed by physical force applies as well. Disapproval, or removing benefits one might get (like a job) generally does not count, although losing a job is fairly close.

10. Film also demonstrates that our judgements can be corrupted in various ways, as Smith observes.

11. Here for example.

12. This formulation is more important than I think most people give credit for. Watch this space for when I eventually get that paper written.

13. See David Friedman’s Law’s Order for an excellent look into this matter through the lens of law and economics.

14. Also we might feel other people are not appreciating the act enough, or too much.

15. HOAs not withstanding.

16. I am glad to be out of my old rental, but I am really going to miss some of my neighbors.