Chapter 9. Is justice fair?

Here are the topics in this chapter after this introductory section. Life exists at the expense of life. One species preys on another. Carnivores live off the flesh of other animals. Herbivores feed on living plants. Omnivores such as man devour both animal and plant life. Human and animal life requires killing. Life is unfair.

Living creatures have a will to live. Yet, nature is arranged so that it is impossible for us to exercise our will to live without denying the will to live of other life forms. Nature is unfair.

When we focus our attention on mankind, we find that nature favors some people and handicaps others. It isn't fair that some people are born blind, deaf, crippled, mentally defective, ugly, or unhealthy. It isn't fair that millions of babies have destitute parents who can't feed them. It isn't fair that we can't choose our gender, talents, genes, or the time and place of our birth.

The unfairness of nature is not limited to the conditions it imposes on us when we are born. Nature inflicts undeserved calamities and confers unearned benefits on people throughout their lives. A great deal of the success that some people enjoy in life and a great deal of the misery that others endure is due to chance. Nature distributes good luck and bad luck unequally. Nature gives us a sense of fairness and a will to live. Then nature distributes blessings and burdens unevenly and dooms us to the ultimate unfairness—inevitable death. Was our world designed by a devil?

What is fairness?

The concept of fairness is not well defined. People do not agree on what it means. In A Theory of Justice, John Rawls equates fairness and justice, but his attempt to clarify fairness only succeeds in making justice unclear. Justice and fairness must be treated separately so that justice can be as precise as it needs to be.

Fairness, as I see it, has to do with reducing undeserved disadvantages and undeserved suffering, and it has to do with reducing undeserved advantages, even when these undeserved advantages and disadvantages are not unjust (that is, they violate no one's rights). Fairness involves rewarding people for their virtues and their merits and penalizing people for their vices and their lack of merit. Fairness also has to do with not cheating and not distorting someone else's arguments and not discriminating on the basis of race and not being irrational. Fairness is a broad and fuzzy concept.

In this imperfect world, we are often required to make decisions based on incomplete information. Usually, we have enough information about basic rights so that we can act justly. But we often do not have enough information to be fair. Fortunately, we have the right to be unfair.

Unjust advantages and disadvantages can be dealt with by the objective principles already discussed. But to decide what to do about noncriminal advantages and disadvantages, all we have is the vague idea of fairness.

Many people are born with disadvantages that they don't seem to deserve. We are not satisfied with the outcome of the natural lottery. We want to intervene to help the losers. Voluntary attempts to undo nature's inequalities cannot fix them all. So, some of us turn to government to impose fairness by brute force.

Justice is not fair.

I don't have a clear definition of fairness, but justice does not always fit with what I regard as fair. For example, I don't think it is fair to discriminate against people on the basis of their race or on any other irrational basis, but I believe we have the right to do it.

The non-aggression principle permits many inhumane, cowardly, perverted, and unfair acts. For example, it is inhumane and cowardly to see a person in distress, a drowning child for example, and do nothing to save him. But it is not a crime. No one has the right to force you to be a hero.

Aborting her baby is possibly the worst thing that a woman has a right to do. But, even though an innocent human life is taken, no one has the right to use violence to prevent a woman from ridding her body of a human parasite, even if we assume the fetus has all the rights of an adult. Abortion is just, but it certainly is not fair to the unborn child.

It isn't fair that some children in disease-ridden, third-world countries, or crime-ridden ghettos in American cities have little hope for prosperity. But these inequities do not justify redistribution of wealth by the state.

Except for abortion, these examples of differences between justice and fairness are not controversial in libertarian circles. But my version of self-defense libertarianism has more differences between justice and fairness than most other libertarian theories.

According to the ordinary man's idea of fairness, a criminal should compensate his victims and should be punished for his crimes. I think this is fair too. I admit that my legal system is not fair. However, as I interpret the non-aggression principle, it is unjust to impose this kind of fairness by violence.

Some moral questions do not have provably correct answers. These issues fall outside the scope of justice, which means we do not have the right to use violence to enforce any particular answers to these questions. One of these debatable questions is: "What is the proper punishment for a particular crime?"

Justice demands that the exact same property that was taken without the owner's permission be returned to him: nothing more, and nothing less. When this cannot be done, justice cannot be done. Principles of fairness or retribution should not be imposed by brute force as a substitute for justice. The principles of justice are, by definition, the only principles that may legitimately be enforced by violence.

A criminal has the same rights as anybody else. He does not gain or lose any rights by committing a crime. Because a thief does not gain any rights by stealing, it is OK to take back what a thief has stolen, whether the thief agrees or not. But, because a thief does not lose any rights by stealing, if you want to do more than take back what was stolen, if you want to punish the thief or make him pay, you must restrict your actions to those that you have a right to do to anybody. No matter how much you think the criminal deserves to suffer, you have no right to directly harm him or his property without his permission, except to stop his crime.

With a little ingenuity and effort, you can get some satisfaction without violating anyone's rights. If we define punishment broadly, not all punishments are unjust. The kind of punishment that justice prohibits is the kind that involves physical harm to someone's body or other property without his consent. Corporeal punishment, mutilation, imprisonment, and fines are prohibited by the basic right to self-defense. However, there are other vindictive things that you can do to people. Justice allows lots of actions that could be used to get revenge.

For example, you could make those who offend you feel ashamed by publicizing their crimes. Or you could organize a boycott or try to persuade others to banish a criminal from society. If you really wanted to be mean, you could lure someone into a trap, get him to commit a crime, and then jump in with superior force to stop him. The force you use must be for defense, but you might enjoy it while it lasts—you might get lucky and leave a scar or other permanent damage.

The vindictive actions that the self-defense theory of justice allows are not enough to satisfy those who believe in really punishing criminals. On the other hand, the self-defense system of justice allows too much vindictiveness from the point of view of those who blame society for everything and regard criminals as victims. Fairness is such a broad concept that the self-defense theory of justice is unfair for permitting too little punishment and it is unfair for allowing too much.

If a thief loses or destroys property that he stole, he cannot possibly return it. Justice cannot be achieved in such cases. I think it would be fair to take some of the thief's property and give it to the victim as compensation, but it would be unjust to do this without the thief's consent.

If you have an insurance policy you can get compensation from your insurance company. So, it is possible for the market to provide some compensation beyond mere repossession without having to coerce criminals more than is allowed by the non-aggression principle.

Nature is not fair. It does not allow a murderer to restore his victim's life. A murderer cannot possibly make any reparations to the victim. He should try to compensate the victim's family. It would be extremely unfair if he refused to offer any reparation, but he has the right to refuse, which means no one may force him to pay for his crime. The same goes for many other serious crimes. Rape, for example, is a crime for which reparation is impossible. It was not fair of nature to make reparation impossible in the most serious crimes. It is also not fair that the self-defense system of justice allows criminals to refuse to compensate their victims.

Justice deals with specific rights. It gives us the authority to demand what belongs to us. But justice must be exact. Reparation and punishment cannot be determined by principles of justice—by appeals to rights. Reparation and punishment are concerned with fairness rather than justice. Therefore, they must be agreed to voluntarily according to whatever principles of fairness the parties share.

The non-aggression principle limits the means that we can use to attain fairness. It prohibits us from using violence against unfair people who are not aggressing. It prohibits us from using violence to punish criminals. It prohibits us from forcing criminals to make reparation to their victims. None of this is fair.

Justice takes priority.

Justice is not the only kind of morality, but it is the primary kind, and it should not be bypassed. The only way for morality to make sense is to allow people to make moral decisions. For this they need the freedom allowed by the non-aggression principle.

Morality deals with justice, fairness, social welfare, self-fulfillment, and many other things, but these are separate subjects. Social welfare, for example, cannot be a sure guide to justice, because it requires us to determine: (1) what we can do to make others happy, (2) whether the same action that makes some people happy might make others less happy, and (3) which action will maximize happiness overall. We cannot make these determinations with the precision required to justify the use of brute force. Justice must be more certain than this.

The self-anointed esthetic elite who insist on state financing of the arts while professing neutrality toward all moral codes have got the objectivity of art and justice exactly reversed. They insist that we not pass moral judgments about the criminal community, as though justice were too inexact and subjective to be the basis for public condemnation, yet they are so cocksure of their esthetic sensibilities that they insist on the right to impose their concept of art on the rest of us and make us pay for it!

Justice, as defined by the non-aggression principle, determines what can legitimately be imposed by brute force. In so far as something such as art or fairness is different from justice, it should not be imposed by violence. Fairness may be more beautiful than justice. Art may be more beautiful than both fairness and justice. This does not change the fact that the only form of beauty we can demand is the beauty of justice.

Fairness fosters cooperation and concern for the individual. It has helped us to survive as a social species. But the morality of fairness is lost when it overrides justice. Forced reparation and punishment deny the individual's right to govern himself.

The non-aggression principle is essential for morality because it allows everyone to make moral decisions. So the non-aggression principle, not fairness, must set the limits to the use violence.

Religious Responses to Unfairness

Eastern thinkers have developed a mystical, yet elegant, solution to the problem of the unfairness of nature and the unfairness of justice. The doctrine of reincarnation eliminates both kinds of unfairness while preserving justice. According to the theory of reincarnation, nature is not unfair. Everyone is born to the station in life, the caste, and even the species that he has earned by his conduct in previous lives. A person born with disadvantages deserves them. His current life is an opportunity to earn a better starting position in his next life. By leading a good life, or thinking the right way, or whatever, a man (or animal?) will be rewarded in his next incarnation. No unjust human intervention is needed to rectify the unfairness in the world. The apparent unfairness is an illusion. If we look deeper into the situation and consider ourselves as part of an eternal process in a purposeful universe, we can stop worrying about unfairness. The universe is a mystical meritocracy.

In the Western world, Jesus offered another mystical solution to the problem. The apparent unfairness of nature remains a mystery. It is beyond human understanding. We must have faith that God knows what he is doing and accept the fact that he works in mysterious ways. If our faith is strong enough and if we abstain from using violence and punishing others in this life, God will reward us with an eternal life in Heaven, and he will satisfy our pent up vindictiveness by damning the nonbelievers.

Jesus addressed the problem of the unfairness of life by attributing it to the mysterious way God does things. Jesus asked us to accept unfairness and to not resist evil. He challenged us to have complete faith in God.

Jesus addressed the problem of the unfairness of justice by asking us to forgive one another rather than punish each other and to wait for the Judgment Day when God will reconcile justice and fairness once and for all.

The moral philosophy of Jesus goes beyond the requirements of justice. Justice requires that we not use violence against those who are not invading. Jesus preached total nonresistance, even when someone is threatening to kill us. A society in which people can make moral decisions would not last long if good people did not resist criminals. The crucifix is an appropriate symbol for Jesus' nonresistance philosophy. Anyone who follows it risks a similar fate. Jesus, however, was not concerned with developing a morality for an enduring civilization, because he believed the world would come to an end within a generation. So he developed a philosophy to save as many souls from his generation as possible, based on the assumption that there would be no future generations to worry about.

Jesus was a radical who tried to shake people out of their complacency by sounding an alarm to warn them of impending doom. He preached an ethics for an emergency situation—the last days of civilization before the end of the world. In this crisis, the most important thing was to make peace with God so that you could receive his grace and the gift of eternal life.

The inability of human reason to understand divine justice and fairness are underscored by Jesus's deliberate sacrifice of his own life. Jesus, presumably, led a blameless life. Yet he willingly suffered pain, humiliation, and injustice. His life and his faith were meant to be the model and the path to salvation for the final generation. Jesus's way of dealing with the gap between justice and fairness was: (1) Acknowledge it as a mystery beyond human understanding. (2) Suffer injustice and unfairness without resistance—without using violence to punish sinners or even to defend yourself. (3) Have total faith in God.

Being meek is a disadvantage in our society. It usually leads to financial failure and lack of status. Meek people are likely to have low self-esteem and to be attracted to the Christian doctrines of original sin (which portrays all men as worthless sinners) and atonement through Christ (which is the miracle whereby God through an act of grace offers salvation to a selected group of sinners who believe in him and who demonstrate their faith by following his commandment to be subservient to their fellow men). This may be the reason so many meek people believe in divine justice in an afterlife. Being meek and believing in divine justice are related in two ways: (1) The commandment to sacrifice your wealth and status to serve the interests of others provides a moral justification for meekness. (2) Nice, meek people can find consolation in the mystical belief that they shall miraculously inherit the earth.

Except for the Mennonites, Quakers, and a few other small sects and individuals, Jesus has few followers today. Most so-called Christians have abandoned his moral philosophy in favor of a more assertive one that compensates for Jesus's erroneous prediction about the end of the world.1

By disregarding Jesus's advice to not resist evil, Christians can develop a philosophy for an ongoing civilization. Unfortunately, most Christians have given in to the temptation to try the political means to solve the problem of unfairness. They have gone beyond being assertive. They have become invasive.

Much right-wing political activity is motivated by righteous indignation against criminals and other sinners. Many right-wingers who consider themselves Christians agree with Moses' hard-line stand against crime and have no sympathy for the philosophy of Jesus. "Christian" fundamentalists have created a hybrid philosophy by grafting the harshness of the Mosaic law onto the Christian doctrines of salvation and eternal life. These moralists see nothing wrong with lobbying for legislation against sin. They try to get the government to coerce people into living "Christian" lives.

Political Responses to Unfairness

Some people cannot accept the fact that justice permits immoral behavior. Others cannot accept the fact that nature is not always fair. The danger posed by the first group is that they will try to impose moral values beyond what is just by engaging in right-wing political activity. The danger posed by the second group is that they will try to rectify natural inequalities by engaging in left-wing political activity.

In the following sections I discuss the two dominant groups in American politics, which I refer to broadly as the social conservatives and the social democrats. Other labels for social conservatives are: right wing, retributionists, and the law-n-order crowd. Social democrats usually refer to social conservatives as extremists. Other labels for the social democrats are: left wing, redistributionists, and tax-n-spend liberals.

These two groups have conflicting beliefs about fairness, and neither group appreciates the other. The extremists in each group sometimes get enraged by members of the other group and resort to name-calling. The social conservatives sometimes call the social democrats socialists or communists. The social democrats sometimes refer to the social conservatives as racists or fascists. Such name-calling is unfair, and it is not a valid substitute for rational argument, even though there is some truth to it.

Both groups want to reduce poverty and crime. The social conservatives take an indirect approach to reducing poverty and a direct approach to reducing crime. They believe the way to achieve both goals is to force poor people to conform to middle-class values. So they advocate strict enforcement of laws against low-class life-styles. The social democrats take a direct approach to reducing poverty and an indirect approach to reducing crime. They believe the way to achieve these goals is to give money and economic opportunity to the poor. So they advocate welfare legislation and laws against discrimination. Each group advocates different forms of coercion according to their different strategies for achieving the same goals. The common threat posed by both groups is that they use the political means—unjustified violence and threats of violence—to impose their ideas of fairness on the rest of us.

The Social Conservative Approach to Unfairness

Social conservatives are not bothered by the fact that the natural lottery is unfair. They are more concerned with those who resort to crime to change the odds. Most social conservatives think that confiscating money from people who have earned it and giving it to lazy, stupid people who don't deserve it is more unfair than the natural lottery.

Social conservatives tend to be retributionists. They believe that those who break the law deserve to be punished. The attitude of the "law-n-order" crowd toward crime is simple: (1) The cause of crime is criminals. (2) The way to fight crime is to fight criminals. (3) What we need is more guns, policemen, prisons, electric chairs, and tough judges.

The strategy of the conservatives is to discourage potential criminals by increasing the length of prison sentences for convicted criminals and increasing the percentage of criminals who get convicted. This strategy also has the advantage of removing many criminals from society so they cannot commit more crimes. It treats potential criminals as rational agents who can be dissuaded from crime by the threat of prison, and it treats convicted criminals as though they have forfeited their right to freedom.

Social conservatives in America favor legislation designed to impose middle-class moral values on the lower class. Social conservatives dislike the life-styles, values, and vernacular of the people who dominate the urban ghettos. Members of the religious right want strict enforcement of laws prohibiting obscenity, lewdness, loitering, gambling, prostitution, and drug trafficking. They want street criminals to be put in prison, even if this is more expensive than putting them on the dole. They want the drugs that these people like to use (heroine, cocaine, marijuana, and so on) to be illegal, no matter how much it costs to enforce this prohibition and no matter how many robberies are caused by addicts having to get enough money to pay black-market prices. The approach of the social conservatives has three major flaws: (1) It is unjust. (2) It uses an inappropriate means (force rather than reason) to promote moral values. (3) It imposes high costs on the taxpayers with whom the social conservatives sympathize.

It seems to me that poverty (which is a natural result of not having the middle-class values of thrift, punctuality, diligence, and economic skills), is punishment enough. But social conservatives want the government to arrest and punish people who get caught breaking middle-class conventions. The majority of those who get caught are, naturally, poor people. Consequently, the laws favored by social conservatives tend to discriminate against the people the social democrats favor. In their zeal to punish paupers, the social conservatives feel frustrated by social democrats whose sympathies lie with disadvantaged people. Social conservatives regard social democrats, who attempt to excuse or explain lower-class life-styles, as opponents of law, prosperity, and civilization.

The Social-Democrat Response to Unfairness

Social democrats believe that the way to reduce crime and to rectify the unfairness in society is through social engineering. They advocate government regulation of businesses and individuals through administrative law and through incentives in the tax laws to protect the environment and promote the health and safety of the public. More importantly, they favor government programs and legislation to redistribute wealth more evenly and to outlaw discrimination against disadvantaged people.

The Social-Democratic Approach to Law and Order

Social democrats think the criminal justice system is harsh and biased against poor people and minorities who are victims of society. They believe in fighting crime by redistributing wealth and opportunities through government "tax-n-spend" programs and civil rights laws against discrimination. Their analysis of the crime problem is: (1) Crime is caused by social conditions such as poverty, lack of opportunity, lack of education, race discrimination, violent movies, and the existence of guns (everything in the chain of events leading to a crime except the criminal and his moral character). (2) To fight crime we must change the social conditions that cause it. (3) This requires that we take money from the advantaged families and give it to the poor, and that we forcibly integrate races, outlaw discrimination against minorities, curb excessive violence in movies and on television, and prohibit private citizens from possessing guns.

The strategy of the social democrats is to reduce the incentives to commit crimes by giving material assistance to the people in the high-risk groups. The social democrats would have the state take resources from the productive people and give them to the high-risk people so that the high-risk people don't have to steal for themselves.

Social democrats are correct when they point out the need to attack the underlying causes of crime and that poverty is one of the causes. However, they are blind to the more decisive role that moral values and the character of the individual play, and they undermine moral sanctions and individual responsibility by actively discouraging people from making moral judgments.

Social democrats and common thieves advocate the same thing—redistribution of wealth by brute force. The social democrat wants the government to do it. The common thief relies on his own resources to overcome the defenses of his victims and to avoid capture and punishment by the government.

Social democrats are too hasty in recommending tax-and-spend solutions. They simply do not see that their solutions are based on threats of violence against peaceful people. They don't recognize that what they propose is to have the tax collector do the private thief's work. In effect, the social democrats are saying to thieves that it is alright to take money from others if you need it, but you should do it through the political process to reduce the bloodshed.

The social conservatives and social democrats both advocate systematic robbery through taxation as the method to finance their crime-reduction programs. The right-wingers want to spend the money to catch, convict, and punish criminals. The left-wingers want to spend the money to provide better living conditions for the high-risk groups. Both the right-wingers, who try to legislate morality, and the left-wingers, who try to legislate equality, are advocates of theft.

The Social-Democratic Remedy for Social Inequities

Much left-wing political activity is motivated by sympathy for disadvantaged people who have not been treated fairly by nature or by society. Social democrats recognize the unfairness of allowing some people to accumulate great wealth while others who struggle harder stay poor. They believe that children born into poverty don't deserve to be disadvantaged. They believe these poor children are not responsible for their condition. (They implicitly reject the Eastern philosophy of reincarnation.) They also believe that society is responsible for poverty. (This belief implies that somebody has to be responsible, that nature is not responsible, none of the gods are responsible, and not even the parents of the children are responsible.) They want to rectify this unfairness by forcibly redistributing wealth from the haves to the have nots.

If it is true that society (meaning everybody except children and poor people) is responsible, what does this responsibility entail? According to the social democrats, it entails a duty to improve the opportunities for these poor people, especially the poor children. To justify using brute force to make people contribute to the support of other people's disadvantaged children, we must to assume that everybody has a basic right to such support but that children and poor people are exempt from the corresponding duty to provide opportunities for everyone else. To defend government redistribution of wealth for this purpose, we need to make one more gratuitous assumption. We need to assume that only the government has the right to enforce the duty to provide opportunities. We have already shown that no such right can be legitimate.

Some redistribution of wealth is called for by simple justice. Wealth that was stolen should be returned. Victims of feudalism, slavery, taxation, and imperialism who were robbed of the products of their own labor are entitled to the property their overlords took from them. The right of repossession could justify a massive redistribution of property to descendents of slaves and to peasants in Latin America and in many other parts of the world. But the right of repossession is not used in this way by the radical left, because they don't believe in private property, even for the poor peasants, and it is not used by the political right because they support the property rights defined by the established legal system.

Because the social democrats want to take money from those who have earned it and give it to people who have done nothing to deserve it, we could say it is evident that the social democrats want to punish achievement and reward failure. But, even though this may be true, it would be as unfair to say this about the social democrats as it is unfair of them to call their opponents racists.

Redistribution of wealth is not usually presented as a form of punishment. Some social democrats bear no ill will toward people who are fortunate enough to be prosperous. Their attention is focused on those who need to receive rather than on those who are required to give. When they advocate "welfare" programs, they might not intend to punish or inflict hardship on those whose wealth they ask the state to confiscate and redistribute. In redistribution, they see only the promised benefits to the needy, not the lost opportunities for the taxpayers and their families.

Social democrats do not understand the long-range consequences of their policies nor do they seem to care. If the poor as well as the rich are brought into the privileged class (the class of people who use tax collectors to expropriate money from the workers), the whole system will eventually devour itself as workers migrate to the privileged, unemployed class to enjoy the free ride. The ultimate result will be universal poverty when no one is left in the productive, working class.

The best way to reduce poverty is to allow more people to find productive jobs. The tax-and-give-away programs of the social democrats tend to increase poverty by rewarding paupers. In its ultimate effect, the tax-n-spend solution is worse than the law-n-order solution, and that is pretty bad.

For a society to be prosperous, those who work for a living must have higher status than those who depend on others for support. The welfare and prosperity of the whole society depends on those who produce more than they consume. So earning a living and, at least, paying your own way should be encouraged, and living off others should be discouraged. Trying to trick people into believing that work is its own reward is not effective in the long run. The most effective way to get people to work is to pay them for it and not tax away their earnings.

Social democrats are opposed to totalitarianism, and they resent being called socialists or communists. They believe in a government-regulated economy. They believe some goods and services such as medical care, housing, education, legal services, and retirement plans are social while other goods and services are private. If you point out to them that some goods and services that they now classify as private such as clothing, food, entertainment, sexual pleasure, marriage partners, and so on are socially necessary values, they will not see the point. They think it absurd to suggest that these human needs are at risk of being controlled by the state. Even when, over time, the social democrats shift one or more of these private values over to the social-value side, they will not admit that any remaining private values are at risk.

After a service has been usurped by the central authorities for a while, it becomes hard for the social democrat, and even for the ordinary, nonpolitical citizen to imagine it could ever be provided through private means. There is a built-in ratchet effect that leads social-democratic legislation toward totalitarianism. But the social democrats are not worried. They are too smart to let something like that happen.

It is not clear whether social democrats would like "welfare" recipients to ever become productive, self-supporting, and independent. Judging by the government programs they have developed, it seems the social democrats want to increase the number of people who depend on the dole. This is clearly a goal of the politicians and government bureaucrats whose careers depend on poverty. They have a vested interest in poverty as a growth industry. But some of the social democrats in the private sector, I think, might not want poverty to increase or don't care whether it increases or decreases.

Some social democrats are systematic utilitarians who think government "welfare" programs alleviate the plight of the poor. As the failure of "welfare" programs becomes evident, fewer utilitarians will remain in the ranks of the social democrats.

Most social democrats, however, are not systematic thinkers. So even if you could get them to see that their position on a particular issue is identical to, or logically leads to, the socialist position, it would not phase them. They consider themselves to be practical and realistic, and they know that full-blown socialism is impractical and unrealistic. So if you convince them that the logical result of a policy they advocate is undesirable, it only proves to them that it is foolish to follow the policy to such an extreme. They will not conclude that the policy itself is bad. Quite the contrary. They will be reinforced in their belief that the policy should be followed in moderation. They may even see the need for an additional interventionist policy on top of the first one to ameliorate the bad effects of the first one. If you should manage to show them that the second policy has bad effects when applied consistently, you reinforce in them the belief that it should be pursued carefully rather than blindly, and you may induce them to support a third interventionist policy to ameliorate the bad effects of the second one. And so on. If you try to show them the pattern of their policies, they will not be receptive, because they know they have no secret agenda and they can't conceive of an unplanned pattern. You have a better chance of showing a Marxist the error of his ways.

Social democrats who cling to their belief in "welfare" programs despite the evidence of their failure may be motivated by a theory of justice rather than by benevolence. They simply feel that poor people deserve to be given support payments as a matter of right. The consequences don't matter. These social democrats are not primarily concerned with alleviating misery. They simply have a false theory of justice. They advocate "welfare" programs because they think people are entitled to them.

The welfare recipients themselves are not selected from the most intelligent or informed segment of society. Some of them have no idea how the government works or where the money comes from. They are too ignorant to feel guilty for accepting government handouts. I know able-bodied Americans who should be ashamed of themselves for living off the dole. But they don't see it that way. They regard "welfare" payments as their right, and they think that working for a living is something that people with different tastes do for pleasure or because they are greedy. They have no idea where the government gets its money. In a 1999 public opinion poll in the USA conducted by Fox News Opinion Dynamics, only 39% of those polled said the government gets its money from taxes. Eleven percent were unsure, and fifty percent said the government has its own money. Many tax payers in America are so ignorant that when they get a refund on their income taxes they think the government is subsidizing them.

If people are entitled to some minimum standard of living as a matter of natural right, we should first meet our obligation to the millions of poor souls around the world who are literally starving to death through no fault of their own before we consider the claims of Americans who are not in such dire straits. If people have a basic right to not starve to death, we all have a duty to feed them, regardless of where they live. Political borders have no bearing on basic rights and justice.

After we have taken care of our obligations toward all the men, women, and children in the world who need our help to keep from starving, then, if there is any wealth left, and only then, should we consider whether to give anything to the class of Americans who claim they are entitled to more.

Social democrats in the USA hurt poor people.

Social democrats want to improve the health and safety of everyone, especially the poor people in urban ghettos (the criminal community). It is ironic that the legislation that social democrats favor lowers the living conditions of these poor people even more than the legislation favored by the social conservatives.

Social democrats want everybody to have safe and healthy places to live in. So they enact building codes, fire codes, health codes, zoning laws, environmental protection regulations, and so on. All of these things drive up the cost of housing, which hurts the poor people.

The democratic ideal of equality in law makes life more difficult for poor people as more laws and regulations are enacted. Rich people as well as poor people are not allowed to sublet their apartments or to share them with too many tenants. Rich people as well as poor people are prevented from buying or selling used mattresses. Rich people as well as poor people are prevented from driving to work in junky cars that cannot pass inspection. Urban renewal programs eradicate slums and replace them with new apartment buildings, sports arenas, and highways. All the people living in the slums, whether they are rich or poor, are equally forced out of their homes and removed from their familiar surroundings. When the new apartments are ready to be occupied, they are equally available to anybody who can afford the higher rent, regardless of whether they are rich or poor.2

Minimum wage laws prevent educated rich people as well as uneducated poor people from being employed in jobs that pay less than what the social democrats think is fair at the moment. Rich people and poor people are prohibited from becoming unlicensed plumbers, electricians, carpenters, and taxi drivers. Rich people as well as poor people are prohibited from homesteading on government land or in abandoned buildings.

Government bureaucracy grows with social-democratic legislation and administrative regulations. Rich people with lawyers and accountants as well as illiterate poor people without them are equally free to fill out the forms to take advantages of government largess.

Even when legislation is targeted at the poor, the laws are often followed blindly and the administrators do not use common sense to distinguish between the worthy and the unworthy poor. When "welfare" administrators try to use discernment in distributing benefits, the way private charities used to do, civil rights attorneys quickly get the courts to put a stop to it on the grounds of illegal discrimination.3

The "welfare" legislation favored by social democrats promotes dependence on government programs. If you manage to save $1000 for your future, you lose your benefits.4 Low-income people are thereby discouraged from saving their money and accumulating wealth. They are penalized for investing in their own future and for developing a sense of responsibility for their own economic status.

You get what you pay for. Welfare programs pay people to be poor. In the United States such programs created an unprecedented demand for paupers and caused a corresponding increase in the supply.5

Unwed mothers are paid more than married mothers. Predictably, since the Aid to Widows with Dependent Children program was expanded to include unwed mothers, there has been a significant increase in the number of unwed mothers. This insidious attack on the family structure would not have gone unchallenged in the 19th century, because people understood that helping abandoned mothers leads to more abandonment.6

Lower-class people act more often on impulse and do less long-range planning than middle-class people. So lower-class people have more unplanned children and more children out of wedlock. Poor men who have sired children out of wedlock have little incentive to get legitimate jobs. The threat of confiscatory child-support payments makes it rational for jobless youths who have "sown their wild oats" to remain jobless or to make money under the table. If they get legitimate jobs, not only would they be subject to the taxes that all workers have to endure, they could also be forced to pay child support for all the children they sired. Lower-class men are encouraged by the incentives set up by the "welfare" state to work only in the underground economy—off the books. So they sell drugs and other contraband, and some even resort to crimes that have victims. In this way, the "welfare" state encourages lawlessness.

Social democrats became concerned about the rising illiteracy rate. So they encouraged federal legislation to finance remedial reading programs in the public schools. The predictable result was an increase in illiteracy.

Social democrats became concerned about heroine addicts. So they established drug-treatment centers that administer free methadone to heroine addicts. As a result, thousands of heroine addicts are now addicted to methadone. They are so dependent on this government-controlled drug that they cannot live in or travel to any place that doesn't have a methadone program. Methadone programs are ideal for drug counselors seeking job security. In fact, a case could be made that the social services bureaucrats, the professional social democrats, are the main beneficiaries of all "social" programs.

Social democrats are vigorously opposed to discrimination against minorities, yet some of the programs they have imposed on society encourage people to resent minorities. For example, poor people had no reason to feel any resentment toward physically handicapped people until the social democrats made it illegal to build low-cost housing and inexpensive public toilets that cannot accommodate wheelchairs. Now poor people have to be inconvenienced more than necessary so that the handicapped can have more equal inconvenience. But this example is trivial compared to the resentment generated against people on the dole as a result of "welfare" legislation.

The social democrats have taught "welfare" recipients that they are entitled to food and shelter and medical care. Generations of people now have lived their lives with no conception of the need to earn a living or to produce anything other than more of their own kind. The social democrats have created a subculture of people who never grow up. Although they are required to go to public schools where they come in contact with children from middle-class families, their values are so different that they usually segregate themselves voluntarily. They can live their whole lives without ever really knowing a grownup. The adults in society who are not social democrats resent paying taxes to support these people. And as the values of the "welfare" subculture diverge more and more from the values of the workers, they like each other less and less.

Perhaps the only good result of the nuclear arms race of the Cold War era was that it siphoned off so much wealth out of the American economy that it prevented social democrats from expanding the welfare state as rapidly as they would have liked. Spending money on nuclear weapons, as evil as that was, prevented that money from being spent to create paupers. A better program than the arms race would have been to simply burn the money. If the government didn't spend the money but burned it instead, resources would not have been wasted on weapons, the defense industry would not have grown, and the money would still not have been available to the welfare socialists.

This suggestion is so politically untenable that it makes the truly libertarian policy sound more mainstream. Namely: (1) Don't extract the money from the American workers in the first place. Let them keep what they have earned and let them spend it or invest or give it away it as they see fit. (2) Completely eliminate government spending on weapons of mass destruction. (3) Completely eliminate government spending on welfare programs. Each aspect of this libertarian policy is moral and beneficial in its own right.

To feel good about themselves and their compassion for the poor and to demonstrate their moral superiority, social democrats have developed a "welfare" state that is bureaucratic and impersonal and that discourages ties of kinship, suppresses self-reliance, fosters indigence, rewards illegitimacy, discourages frugality, emphasizes materialism, discourages morality, punishes success, and rewards failure. Social democrats may have to sacrifice some of the satisfaction they derive from being advocates for the downtrodden before they create too many more of them.

Discrimination can be just without being fair.

It is unfair but not unjust for a father to prefer one son over another. The Bible story about Joseph and his brothers and their father Israel is an example of discrimination that was not unjust, but that lead to unjust actions because it was unfair.
Now Israel loved Joseph more than all his children, because he was the son of his old age; and he made him a coat of many colours. And when his bretheren saw that their father loved him more than all his bretheren, they hated him, and could not speak peaceably unto him. (Genesis 37:3-4)
It is hard to blame Joseph's brothers for resenting this unfairness and being jealous of Joseph, but they overreacted. They behaved worse than social democrats or even communists. Joseph's brothers stripped him of his robe and threw him into a pit. Then a caravan of Ishmaelites came along and his brothers sold Joseph to them for 20 shekels of silver. The Ishmaelites took Joseph to Egypt. Meanwhile Joseph's brothers dipped his robe in goat blood and brought it to their father who mourned Joseph's death.

Israel (a.k.a Jacob) was not fair in his favoritism, but he had the right to love his son Joseph more and to favor him. If justice were fairness, then we could legitimately use violence or threats of violence to force a father to distribute gifts equally among his children. But justice is not fairness, so we have no right to take or destroy what doesn't belong to us to rectify favoritism.

The right to own property entails the right to discriminate. This right does not depend on the owner being reasonable or fair. Consequently, fair housing laws are unjust. So are laws requiring equal access to private clubs, hotels, restaurants, busses, trains, airplanes, schools, churches, rest rooms, parks, and beaches. If you want to hire someone to do a job for you, you have the right to restrict applicants to whatever categories you prefer. No one has any more right to demand equal access to your property than they have to demand equal access to your body. You have as much right to discriminate in selecting people to do business with as you do in selecting who to have sexual relations with. You have the right to be choosey in all of your relationships.

You don't have to be consistent in your discriminations. You can have one set of criteria for choosing lovers, another set of criteria for friends, and another set for business relationships. If you want to be very discriminating, you can have many more sets of criteria for more specific kinds of relationships—which restaurants you will patronize, which concerts you will attend, and so on.

You also have the right to be indiscriminate in any of your relationships. You can indiscriminately hire anybody, be friends with anybody, or make love with anybody as long as they consent. However, if you make indiscriminate friendships or make love indiscriminately, then you are not really a friend or a lover. Friendship and love imply an emotional bond between individuals and a recognition of special value in the other person, which makes that person different in your eyes from other people. Free love is not love at all. Indiscriminate love strips love of its meaning. It is as crazy as loving your enemy. Nevertheless, you don't have to be a true friend or lover. You can try to treat everybody the same if you want to.

The right to discriminate includes the right to practice so-called reverse discrimination. Reverse discrimination is discrimination that attempts to undo the results of prior discrimination. It is like trying to undo a crime by punishing the criminal's grandchildren. But unlike punishment, reverse discrimination does not violate anyone's rights. If a corporation or a university wants to discriminate in favor of minorities who were excluded in the past, they have as much right to do so as each individual has to choose his own friends.

Many forms of discrimination are unnecessary and irrational. These are the ones that are often regarded as unfair. Let's look racism next, because racism is one of the forms of discrimination that is widely regarded as unfair and that many people are trying to use the political means to prohibit.

Discrimination by Race

Since the fall of the National Socialists in Germany as a result of the second world war, race discrimination has come to be regarded by social democrats as the epitome of immorality. To social democrats, being a racist is even worse than passing moral judgments, owning guns, or smoking cigarettes. They think racists are totally depraved. Any hint of support for racism in an argument is enough to discredit it. Social democrats were more upset about the system of apartheid in South Africa than they were about much greater injustices in other countries where racism was not an issue. They felt sympathy for the starving Ethiopians, but they did not feel indignant about the Ethiopian government's policies that caused the problem, because the government was the same race as its victims.

Race discrimination is often unjust. When it is, it is legitimate to use violence, if necessary, to combat it. The laws of the South African government that forbade black people to reside in or to own property in many parts of the country were unjust laws. They were also obviously racist.7 But social democrats who believe that the racist motive is what made these laws unjust are mistaken. The laws were unjust because no one has the right to forbid anyone or any group of people to reside on or own land anywhere. The laws would have been as unjust if they pertained to an equal number of people selected at random without regard to their race. Zoning laws are unjust even when they are not motivated by race prejudice.

Many other racist laws in South Africa were unjust and deserved condemnation. The labor laws that forbade Blacks, Coloureds, Asians, and Whites to be employed in various occupations were unjust. But the criminality of these laws did not depend on their race bias. All laws that inhibit voluntarily employment in any field are unjust. The race aspects of South Africa's laws added insult to injury. The demeaning attitude of the government may have been immoral, but it was the actual violation of people's rights, rather than the unfairness of the race prejudice behind it, that was unjust.

When American social democrats pass legislation, or when the Supreme Court re-interprets laws, to coercively impose discrimination against white men for the purpose of counteracting past discrimination in favor of white men, they are criminals akin to the South African government when it imposed laws that discriminated against the majority of the population.

Unwarranted race discrimination is a form of collectivism. Like other forms of collectivism, it is irrational. Differences between individuals are greater than the differences between the races, so it usually makes more sense to judge people individually than by race.

However, people have the right to make their own decisions, and this entails the right to make stupid and unfair decisions such as those based on ignorance or race prejudice. The relevant factors are the property titles involved in the discriminations. If you own something exclusively, you have the right to refuse to let others use it, regardless of whether you are fair about it. This means that laws prohibiting or requiring race discrimination in housing, hiring, and so forth are unjust.

Every person has an absolute right not to be murdered. No individual, race, or class has more of this right than another. However, the motive for a murder can have a bearing on whether we regard the murderer as a continuing threat. Murderers who are motivated by race hatred may reasonably be regarded as likely to commit future murders and might need to be confined or killed to defend the rights of those who belong to the race that the murderer hates. Murderers who are motivated by animus against a particular individual rather than an entire race are not a general threat to others and should be treated accordingly.

Reverse Discrimination

Suppose that everyone who is born into a family that is disadvantaged because of injustice or discrimination against their ancestors deserves special considerations such as preferential treatment when applying for a loan or a job or admission to college. And suppose it is true that homosexuals have been mistreated over the centuries. It does not follow that homosexuals should receive the special privileges. The parents and grandparents of homosexuals are heterosexuals. Homosexuals as such are not descendants of people who were victims of prejudice against homosexuals. So their sexual orientation does not qualify them for membership in the class of people who deserve compensatory advantages.

Woman as such are not entitled to compensation either. Even if the feminists are correct when they claim that women have been treated unjustly and were discriminated against for being females, it does not follow that present-day women deserve compensation. Suppose that women throughout history suffered from discrimination and were poorer than they would have been otherwise. Suppose that because of this they could not provide as many advantages for their children. Then, according to our assumptions, their children are entitled to compensatory advantages. But their children are all of us. The sons are members of the same families and live with the same results of past discrimination against women as the daughters. The results of discrimination against past generations of women affect everybody. So everybody is entitled to special consideration. But this makes no sense. If everybody is entitled to it, it is not special.

A general case can be made that Afro-Americans and Native Americans are still suffering from injustices committed against their ancestors. But it is nonsense to attempt to make a similar case with regard to females and homosexuals. In so far as shortness, obesity, and ugliness are hereditary, short people, fat people, and ugly people can make a case that they are still suffering because of discrimination against their ancestors. Their case has more basis in science, logic, and history than the cases made by the feminists and the gay-rights activists.

Fairness through politics is unjust.

Nature is not fair in the unequal way it distributes blessings and burdens when we are born and in the way it scatters misfortunes around as we go through life. This is unacceptable to us, so we try to bring about a better balance by taking some benefits from those who have extra and giving them to those who need more. But this has to be done voluntarily, because justice tells us that it is wrong to steal. So justice is unfair.

Not only does justice allow people to keep their property and thereby prevent us from redistributing it as fairly as we would like, it also allows people to discriminate unfairly, which makes matters even worse. For example, it allows white men to use their property to discriminate against minorities and women.

It looks like nature and justice are part of a right-wing conspiracy against social democracy. Only mean-spirited, radical-right, racist, sexist, white men could be pleased with this outcome. However, justice has implications that look unfair to them too. For example, justice allows white men to be disparaged and ridiculed in the press, on TV, and in the movies, and it allows voluntary discrimination against them.

The social conservatives want everyone to live according traditional, middle-class values. They want people to be courteous and polite instead of rude and profane. They want people to be sober and sensible instead of high on drugs and alcohol. They want sex to be confined to husbands and wives behind closed doors. They want children to be raised by mothers and fathers who live together in marriage. They want men to work and support themselves and their families. They want mothers to raise their children in clean, healthful homes and to monitor, protect, nourish, and instruct them so they will grow up to be honest, respectful, and responsible adults.

Naturally, the social conservatives are opposed to socialist programs that undermine these values such as the National Endowment for the Arts, the "welfare" system, secular schools, and civil rights. Justice is on the side of the social conservatives on these issues. No one should be forced to support programs that go against their personal values. In all these areas the social democrats are trying to impose their opinions about fairness by brute force on the social conservatives. The social democrats are waging a cultural war against people who have traditional values, and they are resorting to the political means of taxation and coercion to make it a physical contest instead of a public debate.

The social conservatives, however, are not entirely innocent victims in this struggle. They too have been guilty of using the political means to impose there values on others. The social conservatives are primarily responsible for laws against the consumption of alcohol and drugs, prostitution, pornography, sodomy, gambling, and other vices. These laws are on the books because the social conservatives support them and the social democrats are ambivalent about them.

With regard to real crimes such as rape, robbery, and murder, the social democrats agree with the social conservatives in prohibiting them by law. Almost everyone in the world agrees that these crimes should be prohibited. But people do not agree on how criminals should be treated. Social conservatives emphasize punishment as retribution and for deterrence. Social democrats emphasize redistribution and rehabilitation. Both of these groups want to use the political means to impose their views about fair treatment of criminals, in violation of basic rights.


Go to Chapter 10. How can we live righteously in an unjust world?

Go back to the table of contents.

Go back to Libertarian Essays by Roy Halliday.

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