Seeking A Just Society

Edward J. Dodson

[Reprinted from Land & Liberty, March-April 1987]

AMERICANS of the late 18th century secured a unique opportunity to virtually create an entire system of positive law and, thereby, steer a course very different from that of any contemporary society. How close did they come to the creation of a society whose laws met an objective test of justice?

If it can be said that the nation's first principles were just, we can then evaluate changes to that system. Equally valuable is to explore the areas where the political system structurally interfered with justice and the effects this has had on the development of American society.

To set up this analysis, one must be able to identify an objective standard of justice by which to judge the late 19th century republican model. Those moral and political philosophers of Jefferson's era and before also sought to complete this task. European men of letters such as Hobbes, Rousseau, Locke, Turgot and Smith presented distinct models for debate and examination.

Their ventures into political economy provided a firm basis from which American thinkers could postulate even more "radical" arrangements supported by their unique experience.

The merits of each venture into the new science of political economy were repeatedly attacked and defended, not always on the grounds of objective, scientifically-derived observation. Limited knowledge of the natural world and the prejudices of an age when the struggle for sovereignty was between kings and parliaments constrained the objectivity of the era's men of letters.

Yet, the European philosophers cannot be too harshly criticized; they lived under pressures of possible banishment or worse for their intellectual convictions should the political wind unexpectedly shift. Similar pressures are yet with us; however, the overt threats of persecution for free expression of one's ideas have (for the time being) abated in our own and in a number of other societies. We are in a much better position today to search for truth without being fearful of what we find.

How, then, do we reach an objective set of principles by which to measure justice in a society? I propose that we borrow from the work of two individuals who have made vital contributions to this task.

The American scholar Mortimer Adler (primarily in his The Common Sense of Politics) concludes that because mankind is of one species (our differences being that of degree and not of kind) we are naturally entitled to certain commonly shared rights, which he describes as the "goods" of a decent human existence (e.g., adequate food, shelter, clothing, educational opportunities, access to medical care, free expression of one's views); and, it is encumbent upon government to protect these government to protect these rights. Adler's vital contribution, however, is his restatement of the Lockeian distinction between the concepts of liberty and licence.

INDIVIDUAL liberty, Adler argues, ends where the actions of one individual will in some manner impose restriction on the ability of others to exercise their own liberty to act. Such actions involve the exercise not of liberty but license by the actor.

Where the State, through positive law (or custom), sanctions license there is the creation of an unnatural right (i.e., a license), the benefit of which is often measurable monetarily by market transactions and the value of which (because created by political decree) belongs justly to society as a whole.

Where the individual exercises licenses that produce undesirable moral or ethical societal effects, justice requires that the individual be prevented from taking such licenses. This obviously implies that where the State sanctions such acts positive law is inconsistent with just principles, Second by treatment (but not in importance) is the work of the American political economist (and one of Western civilization's last men of letters) Henry George, whose treatment of justice embodies a critical analysis of both moral-sense philosophy and the awakening elements found in the earlier Physiocratic/Scottish foundations of political economy. George's two major works, Progress and Poverty (1879) and The Science of Political Economy (1897) continue the tradition of approaching the study of political economy as a natural science. George's conclusions were earlier (but without recognition) reached by the Scottish philosopher Patrick Edward Dove (Theory of Social Progress). Both Dove and George built upon the work of their predecessors - correcting where they discovered inconsistencies.

George asked himself what it is about human behavior that is consistent and therefore predictable; his observation, that man seeks to satisfy desires with the least amount of effort, established a first principle. History revealed to him that in attempting to so satisfy desires, the tendency of man is to monopolize what George called "natural opportunities" available to everyone.

Thus, George's sense of justice required that positive law be consistent with the principle that the earth (in its natural state) is the birthright of all mankind, equally. Property rights in the earth are therefore unnatural, a result of license sanctioned and enforced by the State. Justice, he concluded, requires that the economic value of nature be collected (by the State or otherwise) for the benefit of the entire citizenry.

SO, the criteria against which the degree of justice existing within any society can be measured comes from a train of thought that evolved through intense scientific investigation by two of this country's most distinguished intellectual figures. Adler and George show us that:

• We are all equal in our humanness; and, therefore, possess rights to those "goods" necessary for survival and to a truly human existence;
• The earth is essential as the source of such goods; therefore, each individual has an equal right of access to the earth and all of the natural universe;
• Liberty is the exercise of one's rights, by definition the actions involved in no way infringing upon others' liberty;
• License is the resort to action which restricts the liberty of others; and, therefore, requires some type of corrective action by the State to preserve justice;
• There are two primary categories of license, the first of which is sanctioned by positive law and creates unnatural property (primarily, private appropriation of the value of nature but secondarily monopolistic sanctions granted in production); the second of which violates moral and ethical restraints on individual behavior and must be terminated (i.e., what we think of as criminal behavior).
• Positive (man-made) law meets the test of justice by the extent to which it is consistent with the principles of protecting the individual's rights as described above and prevents the unbridled exercise of license.

Certainly, our founding fathers, tutored by English and French radicalism (repeated in the writings of Franklin, Paine, Jefferson, Adams, Hamilton and Madison) recognized many of the structural defects inherited from their British heritage. But Americans were not of one mind and possessed less than perfect judgment.

The political structure they finally endorsed resulted from long debate and compromise, but ignored altogether the fundamental issue involving each man's right to equally access nature. Change to that original structure began almost immediately, often the result of subterfuge (as individuals and factions sought to satisfy their desires by concentrating political and economic power within themselves).

Once those original "defects" have been identified as inconsistent with just principles, the analysis of subsequent changes in positive law and its implementation becomes a much easier task. As does the posing of those measures necessary to bring positive law in greater harmony with natural rights and, hence, justice.

Such an investigation, relying on the criteria established under the Adler/George test, will assist us in determining for ourselves whether we are closer to or further from establishing that elusive republic built on just principles.