The Quest for Cosmic Justice Read online

  In their seeming simplicity, concepts of “advantage” and “disadvantage” can be treacherously misleading. While some advantages are simply differential benefits to one individual or group at the expense of some other individual or group—a zero-sum game—other things that are called “advantages” are in fact net benefits to the whole society that are unequally available to the various members of that society. The advantages of a nobleman over a peasant consist precisely in the peasant’s obligations to give the nobleman a portion of his produce and his labor, as well as obedience and deference. In short, the peasant’s losses are the nobleman’s gains—a zero-sum game. However, when some people have far greater knowledge and facility in the design and production of computers than others, those others may nevertheless benefit greatly by the availability of computers suitably pre-programmed to be usable by millions of people who lack any real expertise. In this second case, society as a whole is better off, though to unequal degrees, because of the “advantages” possessed by those with a deeper knowledge of the operation of computers. By the same token, society as a whole can lose when attempts to eliminate these kinds of “advantages” eliminate benefits to millions who lack the advantages in question.

  With a cosmic concept of bias or advantage, people seeking or justifying preferential policies often speak of such policies as being necessary to create “a level playing field.” However, this phrase has a wholly different meaning outside the framework of cosmic justice. In traditional terms, what preferential policies create is a playing field tilting in favor of those whose performance on a level playing field would be inadequate. The point here is not to assess the particular merits of particular preferential policies or of preferential policies in general—which has been done elsewhere17—but to demonstrate the diametrically opposite meaning of the same phrase when used inside and outside the framework of cosmic justice.

  Property Rights

  Among the first rights to be sacrificed in the quest for cosmic justice are property rights. Clearly the owners of substantial property are very eligible candidates for the role of people enjoying privileged positions and therefore very eligible to have their legal rights sacrificed for the greater good of less fortunate people. However, this way of looking at things completely misconceives the role of property rights and of rights in general. Just as freedom of the press does not exist for the sake of that tiny minority of the population who are journalists, so property rights do not exist for the sake of those people with substantial property holdings. Both rights exist to serve social purposes reaching far beyond those who actually exercise these rights.

  The whole operation of a democratic political system, and the kind of freedom it is intended to safeguard, would be undermined or destroyed if political power-holders could forbid journalists from saying things that were politically embarrassing by censoring the press “in the national interest” or by some other rationale. Such a power would be a blank check for violating all the other rights guaranteed by the Constitution to the population at large, for those violations could all be covered up if the press were controlled by politicians. In short, the principal beneficiaries of the right of freedom of the press are people who are not part of the press.

  A free-market economy is as much dependent on property rights as the political system is on free speech rights. For a nation’s investments to flow to those uses most highly valued by the consuming public, those who own assets must be free to deploy those assets where they can get the highest return. For huge undertakings, such as building a railroad system or creating factories that will manufacture millions of automobiles, individuals must be allowed to accumulate vast aggregations of wealth—whether their own or those of stockholders. For maximum incentives to make the best judgment of where investments should go, as well as maximum incentives to manage those investments in such as way as to maximize the chances of success, people must be free of limits on how much they are allowed to accumulate, even if others proclaim that they have “obscene” amounts of wealth.

  The easiest way to see the effects of property rights is to see what happens in their absence or curtailment. Government abolition of private property in agricultural land has created food shortages in countries around the world, among people of every race, and in political systems of many sorts—even in countries that were once exporters of food from Eastern Europe or sub-Saharan Africa. Malnutrition and starvation were the price of collectivization of agriculture in the Soviet Union under Stalin and, in later years, only massive imports of food from the West prevented a repetition of the same dire experience. Yet the Soviet Union and Eastern Europe in general contained some of the most fertile land in the world and historically this region exported vast amounts of grain to Western Europe and elsewhere—before property rights in land were abolished. Moreover, the small plots of land that the Soviet government allowed individuals to cultivate on their own produced an entirely disproportionate amount of the agricultural output of the country—again showing the value of private property in output, even when the land was not privately owned. Nor was this unique as a dramatic demonstration of the difference between what people will produce for the benefit of themselves and their families, as compared to what they will produce when their rewards are constrained in the name of some larger collectivity.

  Mere curtailment of property rights has often produced serious economic problems. Even when property is allowed to remain in private hands, but the price charged by property owners is restricted by law, detrimental effects on output, product quality, and availability have been common around the world and over thousands of years of history.18 Food has in many places and in various periods of history been a special target of price controls, often on the plausible-sounding ground that food is so basic a need that the poor must be assured access to it at a price that they can afford. Yet, all too often, mass hunger has followed in the wake of price controls on food, whether during the era of the French revolution, in modern African nations, or in Asia. Similarly, housing shortages have followed rent control, whether in New York City, Paris, Hong Kong, Melbourne, Stockholm, or other places around the world.19 Price controls on medical treatment have led to long waiting lines in doctors’ offices and long waiting lists for operations, whether in China, Europe, or elsewhere.20

  The inefficiency of political control of an economy has been demonstrated more often, in more places, and under more varied conditions, than almost anything outside the realm of pure science. Put differently, property rights and the associated rights of free contract in a free market have a major impact on the economic well-being of masses of people, far beyond those relatively few who own substantial property or who are in a position to hire others or engage in major economic transactions. The property rights guaranteed to the few are essential to the economic well-being of the many, just as the freedom of the press is not just a special-interest benefit to journalists. Yet property rights are often treated as if they were in fact only special-interest benefits for the more fortunate and therefore rights to be sacrificed in pursuit of cosmic justice for others.

  From the standpoint of the rule of law, none of this needs to be argued. For Americans, at least, the matter was settled long ago when the Constitution of the United States declared that no person could be “deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensation.” By the second half of the twentieth century, however, all of this was being eroded rapidly by judges. Moreover, this erosion and undermining of property rights was applauded in the leading law schools and by the intelligentsia in general.

  Professor Laurence Tribe of the Harvard Law School, for example, sees the constitution’s “built-in bias against redistribution of wealth” as a benefit to “entrenched wealth.”21 That is, he sees it as simply a benefit to special interests, in a way in which he would not regard freedom of the press as just a special-interest benefit to journalists. Note also how the term “bias
” is used here in a sense parallel with the usage of those who say that the Chinese have been “favored” over the Malays. When the rule of law is seen as a bias, cosmic justice has been quietly enshrined and the principles of the American constitution quietly repealed.

  Judicial Activism

  The role of judges is of course crucial in the law—and especially to maintaining the rule of law, as distinguished from a system of arbitrary edicts from those who hold power. Here again, the traditional concept of justice leads to a wholly different role for judges than their role as seen by those pursuing the quest for cosmic justice.

  The traditional conception of the role of judges was expressed thousands of years ago by Aristotle, who said that a judge should “be allowed to decide as few things as possible.” His discretion should be limited to “such points as the law-giver has not already defined for him.” Moreover, the law itself must be an application of rules to be used for the guidance of others besides the litigants, for its decisions are “not particular but prospective and general.”22 By contrast, New York Times columnist and legal writer Anthony Lewis praised Supreme Court Justice Harry Blackmun because Blackmun “focused the most on the actual people whose lives were touched by the cases”23—in other words, the litigants before him and perhaps a similarly circumstanced segment of the society. But those affected by Supreme Court decisions include all those who are affected by the stability, reliability, and just application of laws—and that means everyone in the whole society, not just the litigants or those like the litigants. If the claim is implied that Blackmun took account of all the ramifications of his decisions on all others affected beyond the courtroom, then this is claiming what no judge or any other human being can ever do.

  A judge cannot “do justice” directly in the cases before him. This view was strongly expressed in a small episode in the life of Justice Oliver Wendell Holmes. After having lunch with Judge Learned Hand, Holmes entered his carriage to be driven away. As he left, Judge Hand’s parting salute was:

  “Do justice, sir, do justice.”

  Holmes ordered the carriage stopped.

  “That is not my job,” Holmes said to Judge Hand. “It is my job to apply the law.”24

  Elsewhere, Holmes wrote that his primary responsibility as a judge was “to see that the game is played according to the rules whether I like them or not.”25 In one of his U.S. Supreme Court decisions, Holmes said: “When we know what the source of the law has said that it shall be, our authority is at an end.”26 Another Supreme Court opinion by Holmes ended: “I am not at liberty to consider the justice of the Act.”27

  The case for upholding legal principles, known and relied upon by others, is precisely that it can be done, and done while preserving a free society, whereas playing cases by ear requires far more knowledge than anyone possesses and is incompatible with the rule of law and the freedom which depends on that rule. The specific virtues of particular laws or particular judicial interpretations of laws—their justice, compassion, equality, or adjustment to social realities, for example—are of course important. But a major part of the benefits of law comes from its being law as such, from its being a dependable framework within which millions of people may plan and act, whether or not the particular laws have other specific virtues. Thus Christians and Jews were able to prosper in business under the dependable laws of the Ottoman Empire, even though these laws denied them equality and made them subordinate in many ways to Moslems. Ironically, economists have been discovering the enormous importance of the rule of law at about the same time as judges have been sacrificing the rule of law to attempts to make the law more just, compassionate, equal, or more in tune with the judges’ own perceptions of social realities.

  The role of such concerns as justice and compassion are very different in legislation than in the later judicial interpretation of legislation. When Oliver Wendell Holmes said “I hate justice” as a judicial consideration,28 he was not saying that justice did not belong in the law. He was saying that it was not the judge’s function to put it there, that this was a legislative function. Much the same view was later echoed by Judge Robert H. Bork, when he said, “justice is for the Congress and the President to administer, if they see fit, through the creation of new law.”29 It might seem that, if justice is something desirable in the law, then the question of who puts it there is secondary, if not trivial. On the contrary, however, the separation of roles in creating law is crucial to the preservation of the rule of law itself.

  Legislative enactments, presidential actions, and amendments to the Constitution are all things which publicly announce changes in the law of the land, providing foreknowledge of changes in the legal framework within which free people may act and plan. Moreover, all these processes are ultimately responsible to the people themselves and can be reversed if the people find them onerous. Judge-made innovations are, in effect, ex post facto laws, which are expressly forbidden by the Constitution and abhorrent to the very concept of the rule of law. For the courts to strike like a bolt from the blue hitting an unsuspecting citizen, who was disobeying no law that he could have known about beforehand, is the essence of judicial tyranny, however moral or just the judges may imagine their innovation to be. The harm is not limited to the particular damage this may do in the particular case, great as this may sometimes be, but makes all other laws into murky storm clouds, potential sources of other bolts from the blue, contrary to the whole notion of “a government of laws and not of men.”

  The difference between cosmic justice and traditional justice means a huge difference in the power of judges. Under cosmic justice, the judge’s role is to decide whether the behavior of each of the parties fits the judge’s notions of what they should have done. Under traditional justice, the judge decides the much narrower question as to what each party had a right to do, at that party’s own discretion, under existing laws and agreements. Cosmic justice not only makes judges roving second-guessers but surrounds prospective agreements with a penumbra of uncertainty, making such agreements harder to reach and carry out.

  The quest for cosmic justice via the judiciary—law as an “agent of change,” as it is often phrased—quietly repeals one of the foundations of the American revolution. It reduces a free people to a subject people, subject now to the edicts of unelected judges enforcing “evolving standards” and made more heedless by their exalted sense of moral superiority. It is one of the most dangerous of the many ways in which towering presumptions are a threat to the freedom of Americans.

  Burdens of Proof

  No aspect of traditional justice is more fundamental than the presumption of innocence in criminal cases and the corresponding burden of proof on plaintiffs, rather than on accused respondents, in civil cases. Otherwise, the ability of government to throw people in jail, or to ruin them financially, because of its own vast powers and resources that can be put behind any trumped-up charges, would render all other freedoms meaningless. Whatever the high-sounding ideals of the law or the proclamations of freedom in the Constitution, the operative principle would be: Anger the power-holders and you will be destroyed. No principle could be more diametrically opposed to the whole meaning of the American revolution. Yet that is the direction in which American law has been evolving, at an accelerating pace, during the twentieth century.

  The first field in which the burden of proof began to shift to the defendant or respondent was anti-trust law. The most sweeping and dramatic shift was in civil rights law, which was followed by similar developments in environmental laws, tort liability, sexual harassment policies, and laws and policies applied to families. In all these areas, what was being sought was cosmic justice for some, with the usual disregard of the costs of this for others. These others include not only the particular losers, or classes of losers, in legal cases. It includes everyone in the society, for all are jeopardized by the ease with which burdens of proof can be shifted to the accused—which means not simply existing classes of criminal defendants or respon
dents in civil cases, but whatever additional classes may be created in future, based on a succession of legal precedents that have quietly repealed one of the basic principles of American constitutional law.

  Dangerous as such powers are in the hands of government officials, these officials are not the only group of people who are allowed to impose high costs on others at low costs to themselves. While government officials can directly spend the taxpayers’ money to finance the pursuit of their charges against others, a private attorney may also collect millions of dollars in attorney’s fees from the taxpayers for what is called “pro bono” work—meaning that his client doesn’t pay—in the increasingly wide range of cases involving “civil rights.” While this term historically referred to cases of discrimination against minorities, it has expanded far beyond that meaning to include, for example, the eviction of tenants (of any race) from federally subsidized housing for their own misconduct. The most blond-haired and blue-eyed alcoholic or pyromaniac can sue under these “civil rights” laws for being deprived of a taxpayer-provided benefit and his attorney, if successful, can collect far more from the taxpayers than the client collects, all the while being considered to be engaged in work pro bono publica—for the benefit of the public—as if he were a selfless volunteer.