The Quest for Cosmic Justice Read online

  If general rules, known in advance, are at the heart of the rule of law, then such rules are inherently incompatible with cosmic justice. That inherent incompatibility shows itself in many ways, including issues involving equal treatment, property rights, burdens of proof, and the general role of judges in the carrying out of laws.

  Equal Processes versus Equal Results

  Rules equally applicable to all are not the same as rules with equal impact on all. Anatole France dramatized the distinction in his famous sarcastic remark: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread.” In today’s American legal doctrine, that is called “disparate impact.” Many public and private acts and policies with disparate impacts on different segments of the population are banned as discriminatory, even when these acts and policies apply the same procedures and standards to everyone.7 However, an understanding that equal rules do not mean equal consequences goes much farther back in history than the 1971 doctrine of disparate impact or Anatole France’s remark in 1894. Nor was this understanding confined to the political left. In his scathing Reflections on the Revolution in France, Edmund Burke said, “all men have equal rights; but not to equal things.”8 James FitzJames Stephen pointed out in 1873 that every law and every moral rule, being general propositions, “must affect indiscriminately rather than equally.”9

  In short, the inherent conflict between equal rules and equal results has been recognized in theory for at least two centuries, even though many of our contemporaries proclaim, as if it were some new discovery or deeper insight of theirs, that laws that are “formally” equal may affect different groups differently. From this they conclude that “real” equality must supersede merely formal equality—which is to say that cosmic justice must trump traditional justice. A common expression of this view is that “equality before the law without economic, political, and social opportunities is a mockery.”10 What is crucial at this point is not whether we agree or disagree with one or the other of these conceptions but that we clearly understand that they are mutually incompatible, that their fundamental contradictions cannot be blended or finessed.

  Much of the legal history of the past several decades has been a confused tangle of Supreme Court cases attempting to reconcile these irreconcilable principles, especially in cases involving affirmative action, which have produced many 5 to 4 decisions, cases decided in opposite ways by the same nine Supreme Court justices, and cases with no given majority for a particular decision, but only shifting majorities for particular sections of the decision. Too often this confusion has been made a virtue with claims that the “complexity” of the issues precluded a “simplistic” choice. But irreconcilability is not complexity. Nor are attempts to square the circle signs of deeper insight. More generally, there is also no a priori reason to prefer complex resolutions over simpler ones for, as Aristotle said, “things that are true and things that are better are almost always easier to believe in.”11 In short, the truth often seems “simplistic” by comparison with elaborate attempts to evade the truth.

  The difference between the equal treatment of traditional justice and the equal results or equal prospects of cosmic justice affect many other kinds of issues. From the perspective of those who seek cosmic justice, freedom of speech does not mean simply exemption from government control of content but includes as well the means of making speech heard. In other words, it requires more government intervention, rather than less, so as to force some citizens to make available resources to enable other citizens to exercise their free speech rights.

  Thus shopping malls, airports, and even private housing developments have been forced to relinquish their rights as property owners to keep trespassers out and instead are forced to allow people to pass out leaflets or solicit money on their property, in disregard of the desires of those who wish to use these malls, airports, or private housing developments for the purposes for which they were designed and built, without being disturbed or harassed. Those with the cosmic view of justice likewise favor forcing radio and television broadcasters to give, or to sell below the market rate, time for political messages or to broadcast what some third parties choose to define as “public service” programming.

  Within the American system of constitutional government, a sharp distinction has been made traditionally between those actions forbidden to the government and those actions which private individuals or organizations may engage in. Within the framework of traditional justice, where constitutional rights are essentially exemptions from the power of the state, rights to equal treatment or to freedom of speech or religion apply where there is “state action” but not when only private individuals or organizations are involved. Thus, in principle, a private individual can evict from his home anyone who uses the word “broccoli” but it would be a violation of the constitutional right to free speech for the government to forbid the use of this word, either in general or even just within that same house.

  We might regard the homeowner who ordered people out of his house for saying “broccoli” as being at best eccentric and certainly unreasonable, if not of questionable sanity. But the whole point of rights is that, within wide limits, those who exercise those rights do not have to satisfy others as to the wisdom or virtue of their decisions.

  All this changes radically, however, within the framework of cosmic justice. If some group is not receiving justice, then whether this is due to governmental or private actions is seen as secondary, if it is relevant at all. Nowhere has this been more acutely felt than in issues involving racial discrimination. Here it is often insisted that everyone is entitled to equal treatment and also that “each group must advocate and insist upon its piece of the pie” and that there has been a “failure of the private sector to address the issue forthrightly.”12

  At this point, with our focus being on the general framework of law, rather than on the merits of particular legislation or policies, what matters most are not the merits or demerits of these particular legal issues and judicial decisions as social policy, but how all this affects the maintenance of the rule of law. Constitutional rights that are essentially exemptions from government power under traditional concepts of justice become reasons for the further extension of government power under cosmic concepts of justice. Cosmic justice cannot be achieved with “a government of laws and not of men” that simply establishes a legal framework within which individuals are free to make their own decisions and arrange their own voluntary transactions on whatever terms are mutually agreeable. For cosmic justice, someone must oversee the social results of these individual transactions and intervene directly to ensure that the desired social results or prospects are arranged.

  Much focus on the desirability of the various outcomes being sought distracts attentions from the fundamental change of processes required to pursue those outcomes. Metaphors about how “society” should “arrange”13 this or that result evade the institutional reality that someone must be empowered to constrict other people’s freedom—and thus evade the need to weigh whether the expected value of the result being sought, given the chances of achieving it, is greater or less than the expected value of the loss of freedom that this effort entails.

  Moreover, while traditional justice concerns rules of interaction between flesh-and-blood human being, cosmic justice concerns abstract categories, whose prospects or results are to be adjusted to the taste of third parties. These abstractions reach across the generations and the collective claims that are made range from territorial irredentism to affirmative action and group reparations. Since the people involved in these inter-temporal abstractions are never all present as flesh-and-blood human beings at any given time, it is impossible for them to resolve their concerns by engaging in voluntary transactions, so that some superior power must, at some particular point in time, adjudicate their differences and impose a “solution.”

  The collectivization of otherwise individual dec
isions and the transfer of the power to make and enforce these collective decisions to some surrogate individual or institutions has further consequences. For example, these surrogate decision-makers are now morally accountable for the particular consequences of particular decisions, rather than being simply umpires responsible for maintaining a given framework of general rules. Unlike the cosmos, these decisions-makers can be blamed for preventable unhappiness.

  Unfortunately, the inherent scarcity of resources means that all the evils that are preventable seriatim are not preventable simultaneously. Thus the apparent ability of “society” to prevent particular evils vastly exceeds its ability to actually prevent those same evils at the same time. One consequence of this is that there are now more reasons for various segments of society to fight each other politically, and perhaps physically, over benefits that were once shared peacefully and unconsciously through the ordinary operations of the marketplace.

  The question is not simply whether the justice—however defined—of the outcome is better or worse under autonomous individual decision-making or collective surrogate decision-making. What must also be taken into account is the difference in the respective costs of achieving these different results, including both social strife and the loss of individual freedom. Moreover, the justice of the outcome cannot be independent of these costs, since “justice at all costs” is not justice. In addition, the concentration of political power creates dangers that the history of the twentieth century has all too tragically demonstrated.

  There are many examples of the constraints imposed on the freedom of some in order to produce cosmic justice for others. More to the point, from the perspective of society as a whole, is the undermining of the rule of law in order to achieve particular results. For example, the Equal Employment Opportunity Commission has decreed that inequalities of employment opportunities growing out of mental illness are to be counter-balanced by government policy, so that employers are not permitted to “discriminate” against the mentally ill in hiring. Thus questions about prior incarceration in a mental hospital are not permitted during an employment interview under the E.E.O.C. guidelines and, once hired, mentally ill workers’ special needs must be “reasonably” accommodated by the employer. For example, partitions may have to be put up around a worker with schizophrenia who is easily distracted, and even a lack of judgment in carrying out work duties may have to be allowed for in others. In short, the mentally ill are another group suffering disabilities “through no fault of their own” who are to be made whole at other people’s expense—which can include personal or social disasters, as well as financial losses.

  Preferential treatment is prescribed for the mentally ill in the name of equality—or an absence of “discrimination”—since it is equalizing treatment to counter-balance undeserved disadvantages. The term “cosmic justice” seems particularly more appropriate here than “social justice,” since no claim is made that mental illness must be the result of social decisions or social conditions, though such disabilities are still unjust from the standpoint of the kind of cosmos we would prefer, if these matters were in our hands.

  As already noted, one of the characteristics of the rule of law is that legal requirements be known in advance. Many laws, such as those dealing with vagrancy, have been invalidated by appellate courts as “void for vagueness,” on grounds that what they require cannot be known to the citizen beforehand. Yet, increasingly, laws and policies seeking to achieve “social justice” or cosmic justice have been allowed to stand by the courts, even when there is no way for those subject to these laws to know in advance whether or not they have violated them. For example, the employer of a person with a history of mental illness or physical disability cannot know in advance whether what he has provided for that employee’s special benefit constitutes “reasonable accommodation” to that illness or that disability. This knowledge can only come after the fact, when a court decides whether or not to award millions of dollars in damages to the employee and the employee’s attorneys.

  An employer cannot avoid a charge of racial discrimination merely by treating all employees and all job applicants the same, regardless of their race. “Disparate impact” statistics will help determine after the fact whether the employer’s conduct is judged to be discriminatory toward minorities—or whether it represented “reverse discrimination” against some members of the majority population. Before the fact, there is often no way to know which way a court trial would turn out. In short, there is no rule of law. This is not a result of some deficiency in the way particular laws have been written or administered. It is inherent in the process of seeking cosmic justice, since general rules can produce only indiscriminate results, not equal results or results fitting some preconceived notion of “diversity.”

  Such loose expressions as “reasonably” accommodating those with disabilities are not mere verbal lapses. There is no way to specify in precise general rules, known beforehand, what might be necessary to achieve results that would meet the standards of cosmic justice. In short, there can be no rule of law for such things and courts seeking cosmic justice can no longer strike down such laws as “void for vagueness.” These edicts do not happen to be vague, they are necessarily vague. They could not be otherwise. Thus “discrimination” cannot be left with a clear prospective meaning, such as applying different standards to members of different groups or subjecting some to more onerous processes than others. For purposes of cosmic justice, discrimination must be defined by retrospective results, whether “disparate impact” or “hostile environments” or a failure to provide “reasonable accommodation.” This is only one of many ways in which the quest for cosmic justice is incompatible with the rule of law.

  All too often, public outrage is focussed on particular policies, such as those of the E.E.O.C. regarding the hiring of the mentally ill, when in fact it is the more general erosion of the rule of law itself that is the real damage that is greater than the sum of all the particular damages created by all the particular policies and court decisions in which this erosion is embodied. A growing penumbra of uncertainty around laws in general makes courtrooms dangerous places for honest citizens and a threat that the dishonest can use for legalized extortion. Perhaps most insidious of all, loss of confidence in the law and the courts undermines civic morale and the cohesiveness of society in general.

  In summary, cosmic justice attempts to create equal results or equal prospects, with little or no regard for whether the individuals or groups involved are in equal circumstances or have equal capabilities or equal personal drives. To do this, it cannot operate under general rules, the essence of law, but must create categories of people entitled to various outcomes, regardless of their own inputs. Moreover, it often does this sub rosa, by creating huge burdens of proof for any criteria that reveal the inequalities of capabilities and circumstances, while assuming with little or no evidence that only malign intentions or systemic bias could explain unequal results. “Affirmative action” is perhaps the classic example of this approach but it is only one example.

  If equality looks radically different from the perspective of cosmic justice, so does bias. Traditional standards of admissions to colleges and universities, for example, have been characterized as “admissions systems that favored the white and the wealthy.”14 It is no doubt true that white and wealthy individuals can meet high academic standards a higher percentage of the time than those who are neither. But it says nothing about the validity of these standards as predictors of later academic or other achievements that those with advantages met the criteria more often than those without them.

  Foreign examples in which we have no vested interest or ideological predisposition may illustrate the point even better. It has, for example, been claimed that the Chinese minority in colonial Malaya was favored by the policies of the British rulers there because the Chinese prospered more so than the Malays under those policies and Chinese children went on to higher education more often than Malay c
hildren did. Indeed, even after colonial Malaya became the independent nation of Malaysia, the Chinese continued for some time to have double the incomes of the Malays and Chinese students outnumbered Malay students at the University of Malaysia. Yet it was also true that the British colonial government provided free education for the Malays, while the Chinese had to pay to have their own children educated and the independent Malay government provided scholarships for the Malay children that were not equally available to the Chinese.15 In both the colonial era and in the era of independence, Malays had rights that the Chinese did not have. By traditional concepts of prospective circumstances, it was the Malays who were favored under both regimes but, in cosmic terms, it was the Chinese. Again, what is crucial is not which perspective one chooses, but a clear understanding that they are inherently irreconcilable concepts that should not be confused with one another simply because they use the same words, for the actual senses of those same words are diametrically opposed.

  From a cosmic perspective, in whatever circumstances A does betterthan B, those circumstances can be said to be circumstances “favoring” A. Note that there cannot be any such thing as overcoming disadvantages in this formulation. If businesses set up by poor Lebanese immigrants in colonial West Africa did better in competition with businesses set up there by more prosperous Europeans, then by cosmic definition that was because of Lebanese “advantages”—which consisted in this case of their being willing to work harder and longer hours, charging lower prices, accepting lower profits and a lower standard of living, and putting more efforts into understanding their African customers.16 In short, performance differences between groups vanish into thin air by being subsumed under the concept of “advantages” or favorably biased prospects, even when the same prospects were available to both groups but only one group made the choices or the sacrifices, or had the capabilities, to make use of these prospects.