Calmeyer Lawyer 1s

Calmeyer’s Legacy

Hans Calmeyer Righteous Gentile 1903-1972

“The Dutch Schindler”

 Lawyer for Life

Social Justice


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What has Social Justice to do with Calmeyer or with the Calmeyer Foundation? We have before us systems of laws carried out by righteous and un-righteous legislators, and righteous and un-righteous lawyers and laypeople. We are looking for explanations of why an individual makes heroic contributions to the saving of lives that the legal system threatens or condemns, in this case Nazi and therefore automatically suspect from the outset. We want to make the point that ALL rules of law can become arbitrary and unjust, by the very nature that they are collective or universal, high-level dictates that quite often ignore the “facts on the ground.” The social justice as defined by Hitler and his laws pertaining to Jews and Aryans might have found broad agreement and even democratic majorities among the populace, but they were unjust laws nevertheless, requiring individual resistance and even conscientious objection at great personal risk to alleviate. Calmeyer was not in a position to change the law, but he acted nevertheless.

Concepts of Social Justice have repeatedly been mis-applied by societies and autarchic leaders, as well as occasionally by tyrannies of the majority voting themselves assets belonging to others on grounds of fairness. We say mis-applied, because social justice codified into a system of law becomes tyrannical. Below we feature a somewhat lengthy exposition on the topic. Important is that individual morality in a public, political, competition of ideas, is to be preferred to a centralized edict of what constitutes “equal treatment” under the law, given that no law since the days of slavery should legislate inherent inequality, and no legal system should impose an equality of outcomes in a communistic sense where there are real individual differences due to individual effort.

Defining Social Justice

Michael Novak

Copyright (c) 2000 First Things  108 (December 2000): 11-13.

Last year marked the one hundredth anniversary of the birth of  Friedrich Hayek,  among whose many contributions to the twentieth century was a  sustained and  animated put down of most of the usages of the term social justice. I have  never encountered a writer, religious or philosophical, who directly  answers  Hayek’s criticisms. In trying to understand social justice in our own  time,  there is no better place to start than with the man who, in his own  intellectual  life, exemplified the virtue whose common misuse he so deplored.

The trouble with social justice€ť begins with the very meaning of the term. Hayek points out that whole books and treatises have been written  about social  justice without ever offering a definition of it. It is allowed to  float in  the air as if everyone will recognize an instance of it when it  appears. This  vagueness seems indispensable. The minute one begins to define social  justice,  one runs into embarrassing intellectual difficulties. It becomes, most often,  a term of art whose operational meaning is, We need a law against  that. In  other words, it becomes an instrument of ideological intimidation, for the purpose  of gaining the power of legal coercion.

Hayek points out another defect of twentieth century theories of  social justice.  Most authors assert that they use it to designate a virtue (a moral  virtue,  by their account). But most of the descriptions they attach to it  appertain  to impersonal states of affairs, high unemployment or inequality of  income€ť  or lack of a living wage are cited as instances of social  injustice. Hayek  goes to the heart of the matter: social justice is either a virtue or  it is  not. If it is, it can properly be ascribed only to the reflective and  deliberate  acts of individual persons. Most who use the term, however, ascribe it not to  individuals but to social systems. They use social justice€ť to denote a regulative  principle of order; again, their focus is not virtue but power.

The term “social justice” was first used in 1840 by a Sicilian  priest, Luigi  Taparelli d’Azeglio, and given prominence by Antonio Rosmin Serbati  in La  Costitutione Civile Secondo la Giustizia Sociale in 1848. John  Stuart Mill  gave this anthropomorphic approach to social questions almost  canonical status  for modern thinkers thirteen years later in Utilitarianism:

Society should treat all equally well who have deserved equally well of it, that is, who have deserved equally well  absolutely. This  is the highest abstract standard of social and distributive justice;  towards  which all institutions, and the efforts of all virtuous  citizens, should  be madein the utmostdegree to converge. [Emphasis  added.]

Mill imagines that societies can be virtuous in the same way that  individuals  can be. Perhaps in highly personalized societies of the ancient type,  such a  usage might make sense under kings, tyrants, or tribal chiefs, for  example,  where one person made all the crucial social decisions. Curiously,  however,  the demand for the term social justice€ť did not arise until modern  times, in  which more complex societies operate by impersonal rules applied with  equal  force to all under the rule of law.€ť

The birth of the concept of social justice coincided with two other  shifts  in human consciousness: the death of God€ť and the rise of the ideal  of the  command economy. When God died,€ť people began to trust a conceit of  reason  and its inflated ambition to do what even God had not deigned to do:  construct  a just social order. The divinization of reason found its  extension  in the command economy; reason (that is, science) would  command and  humankind would collectively follow. The death of God, the rise of  science,  and the command economy yielded scientific socialism.€ť Where reason  would rule,  the intellectuals would rule. (Or so some thought. Actually, the  lovers of power  would rule.)

From this line of reasoning it follows that social justice€ť would  have its  natural end in a command economy in which individuals are told what to do, so  that it would always be possible to identify those in charge and to  hold them  responsible. This notion presupposes that people are guided by  specific external  directions rather than internalized, personal rules of just conduct.  It further  implies that no individual should be held responsible for his relative position.  To assert that he is responsible would be blaming the victim. It is  the function of social justice€ť to blame somebody else, to blame the system,  to blame those who (mythically) control. As Leszek Kolakowski  wrote in  his magisterial history of communism, the fundamental paradigm of  Communist  ideology is guaranteed to have wide appeal: you suffer; your suffering is caused by powerful others; these oppressors must be destroyed. We need to hold someone  accountable,  Hayek notes, even when we recognize that such a protest is absurd.

We are not wrong, Hayek concedes, in perceiving that the effects of  the individual  choices and open processes of a free society are not distributed  according to  a recognizable principle of justice. The meritorious are sometimes  tragically  unlucky; the evil prosper; good ideas don’t pan out, and sometimes  those who  backed them, however noble their vision, lose their shirts. But a  system that  values both trial–and–error and free choice is in no position to  guarantee outcomes  in advance. Furthermore, no one individual (and certainly no politburo or congressional  committee or political party) can design rules that would treat each  person  according to his merit or even his need. No one has sufficient  knowledge of  all relevant personal details, and as Kant writes, no general rule has a grip  fine enough to grasp them.

Hayek made a sharp distinction, however, between those failures of  justice  that involve breaking agreed-upon rules of fairness and those that  consist in  results that no one designed, foresaw, or commanded. The first sort of failure  earned his severe moral condemnation. No one should break the rules;  freedom  imposes high moral responsibilities. The second, insofar as it springs from  no willful or deliberate act, seemed to him not a moral matter but an  inescapable  feature of all societies and of nature itself. When labeling  unfortunate results  as social injustices leads to an attack upon the free society, with  the aim  of moving it toward a command society, Hayek strenuously opposes the  term. The  historical records of the command economies of Nazism and communism  justify  his revulsion at that way of thinking.

Hayek recognized that at the end of the nineteenth century, when the  term social  justice€ť came to prominence, it was first used as an appeal to the  ruling classes  to attend to the needs of the new masses of uprooted peasants who had  become  urban workers. To this he had no objection. What he did object to was  careless  thinking. Careless thinkers forget that justice is by definition  social. Such  carelessness becomes positively destructive when the term social no  longer  describes the product of the virtuous actions of many  individuals, but  rather the utopian goal toward which all institutions and all  individuals  are made in the utmost degree to converge€ť by coercion. In that case, the social  in social justice€ť refers to something that emerges not organically  and spontaneously  from the rule abiding behavior of free individuals, but rather from an abstract  ideal imposed from above.

Given the strength of Hayek’s argument against the term, it may seem  odd to  assert that he himself was a practitioner of social justice even if  one adds,  as one must, social justice rightly understood. Still, Hayek plainly saw in  his vocation as a thinker a life of service to his fellow men. Helping others  to understand the intellectual keys to a free and creative society is  to render  them a great benefit. Hayek’s intellectual work was not merely a  matter of his  own self-interest, narrowly understood, but was aimed at the good of  the human  city as a whole. It was a work of justice in a social dimension, in  other words,  a work of virtue. To explain what Hayek did, then, we need a  conception of social  justice that Hayek never considered.

Social justice rightly understood is a specific habit of justice that is social in two senses. First, the skills it requires are those of inspiring,  working  with, and organizing others to accomplish together a work of justice.  These  are the elementary skills of civil society, through which free  citizens exercise  self government by doing for themselves (that is, without turning to  government)  what needs to be done. Citizens who take part commonly explain their  efforts  as attempts to give back€ť for all that they have received from the  free society,  or to meet the obligations of free citizens to think and act for  themselves.  The fact that this activity is carried out with others is one  reason  for designating it as a specific type of justice; it requires a  broader range  of social skills than do acts of individual justice.

The second characteristic of social justice rightly understood is  that it  aims at the good of the city, not at the good of one agent only.  Citizens may  band together, as in pioneer days, to put up a school or build a  bridge. They  may get together in the modern city to hold a bake sale for some  charitable  cause, to repair a playground, to clean up the environment, or for a  million  other purposes that their social imaginations might lead them to.  Hence the  second sense in which this habit of justice is social€ť:  its object,  as well  as its form, primarily involves the good of others.

One happy characteristic of this definition of the virtue of social  justice  is that it is ideologically neutral. It is as open to people on the  left as  on the right or in the center. Its field of activity may be literary,  scientific,  religious, political, economic, cultural, athletic, and so on, across  the whole  spectrum of human social activities. The virtue of social justice  allows for  people of good will to reach different even opposing practical  judgments about  the material content of the common good (ends) and how to get there  (means).  Such differences are the stuff of politics.

We must rule out any use of social justice that does not attach to  the habits  (that is, virtues) of individuals. Social justice is a virtue, an  attribute  of individuals, or it is a fraud. And if Tocqueville is right that  the principle  of association is the first law of democracy, then social justice is  the first  virtue of democracy, for it is the habit of putting the principle of  association  into daily practice. Neglect of it, Hayek wrote, has moral  consequences:

It is one of the greatest weaknesses of our time that we  lack  the patience and faith to build up voluntary organizations for  purposes which  we value highly, and immediately ask the government to bring about by  coercion  (or with means raised by coercion) anything that appears as desirable  to large  numbers. Yet nothing can have a more deadening effect on real  participation  by the citizens than if government, instead of merely providing the  essential  framework of spontaneous growth, becomes monolithic and takes charge  of the  provision for all needs, which can be provided for only by the common  effort  of many.

Michael Novak holds the George Frederick Jewett Chair in Religion and Public  Policy at the American Enterprise Institute. This essay is adapted  from a lecture  delivered at the University of Chicago’s Committee on Social Thought.