I am going to say something outrageous, but hear me out. What I will say is clear and has deep philosophical roots. I am saying that there is no justice. I do not mean that the ideal of justice is rarely fulfilled, that life is full of disappointments. I mean that the concept of justice is empty. It is a word without a meaning and so not part of the metaphysical furniture of the world, while truth, beauty and goodness are some of the many metaphysical things that do exist. The word “justice” is used to evoke a sense of a final rectification whereby wrong action is compensated through the action of courts, whether by those who adjudicate that Orestes should not be punished or that Charleton Heston intones the Ten Commandments. Life can do without the concept and is better rid of it because the invocation of justice always creates unnecessary suffering and so people are worse off rather than better off.
Consider what we call “criminal justice”, which refers to the procedures whereby accused criminals go through arrests, indictiments, trials and punishments, the process as a whole constituting “justice”. Those procedures may be arranged so as to assure that evidence of guilt is beyond a reasonable doubt and that the procedures are conducted in a way to assure that people are not deprived of liberty for arbitrary or irrational reasons, but what the procedure results in is some punishment that is to be applied by the perpetrator that never negates what was the original offense by which the perpetrator was punished. You can’t restore the death or injury of the person assaulted; the bank has been given its coffers refilled in the money that was stolen and so what point is there to punish the perpetrator of the crime as well except to deter further transgressions, which make sense for bank robbers, who calculate the length of imprisonment against the risks of being caught, but probably have no impact in deterring a wife beater from killing her out of spite or frustration. So rather than the usual aims of criminal penalties, which is to deter crime or simply incapacitate criminals for engaging in crime for as long as they are in jail, or even hoping to rehabilitate criminals, which would require extensive retraining and likely to be unsuccessful, the main aim of criminal penalties is to make people suffer, to be punished, even if the the elaborate procedures are invoked so as to thwart the idea of accomplishing revenge, which means being able to restore to the moment when a hotblooded adversary had completed the act of destruction with an immediate act of response and so feels satisfying at least for that moment. Left on its own, punishment is a failure to sidestep bad action by turning a criminal away from the crime and so is always a failure in that it is a recognition of what you can do which is hurt people rather than just remain frustrated at the fact that there is nothing useful you can do in the face of bad works except work incrementally to alleviate bad circumstances so people don’t become bad rather than to punish bad people.
The same problem emerges with the idea of social justice. Now, there are any number of programs that are beneficial to one part of the population or another or to a very large part of the population and people can differ on whether the advantages outweigh the disadvantages of one or another of the programs. I was once convinced that we should provide federal money to support family farms because it is a way of life that people find satisfying and, some would argue, is the basis for the collective democratic experience even if I did not want to get up in the morning to milk cows. Make room for other ways of life, even at federal expense. I am less convinced today that it is a program worth funding and preserving because there just do not seem to be many family farmers anymore, only multi-million dollar beef and dairy industries. Joe Biden nowadays says that funding community colleges will let the people who go there have better lives than they would if they did not go to them. Maybe so; maybe not. Governments place bets on the future.
But if you add to the idea of a social program that it creates “social justice”, then you are in a problem whereby the proponent gets satisfaction from making other people suffer. It is one thing to say rich people should pay a little more money in taxes so as to finance good programs; it is a very different thing to say that rich people should be taxed enough to expropriate their wealth because they should suffer for all the indignities that have been suffered upon the poor in the past. There is no need to suffer pain to get benefits. There is enough to go around for everyone even if some or most Conservatives think otherwise, they thinking that there is a zero sum game whereby the rich have to suffer so as to alleviate the suffering of the poor. All you get out of it is the “joy” of making the ex-exploiter suffer, and I don’t see how that elevates the morality of the people who had previously been exploited.
The same is true of social justice, which means that the inequities of the centuries whereby Blacks and others have been harmed by dominating groups are advanced by rubbing the noses of the previously dominating group or groups, so that Georgetown University or Brown University have to agonize about the fact that they were implicated in slaveholders, however much we should render a true account of the dynamics of slavery for other reasons, as because knowing the truth is its own reward and because the truth makes history more complicated than it might otherwise be. The idea of African American reparations is not just a way to transfer money from a previously exploiting class to a previously exploited class. Reparations is an acknowledgment of guilt and shame. The exploiters deserved to be punished by having to fork over the money or even offer it up to show that they are atoning for their sins. So the Germans paid reparations to the Israelis, who also, at the time, needed the money, to acknowledge that their moral standing was in abeyance for a time and until recompense was made. Similarly, Blacks want reparations for the insult and the long term damages of slavery. They believe those reparations would consist of social programs that would enhance the well being of Black people as a group. But what if the amounts of money spent on the black population were offered by the government only because they were good programs and useful to an underprivileged population? Then it would be social policy, like Social Security, rather than the infliction of a punishment for prior sins. Everybody would be better off but it would deprive people of their righteous sense of seeing their previous oppressors suffer for what they had done. The bite of justice would have lost its sting if the word “reparations” were dropped, and perhaps that would make all of us more amenable and serene people.
What about “restorative justice”? That concept is an oxymoron. If it means “justice” it means punishing someone for what they have done. If it is “restorative” then it cannot mean dealing with death or injury because there is nothing to be restored, only punished. So “restorative justice” would mean only dealing with economic crimes. An embezzler would have to pay back the money he or she cheated. But is that sufficient? The victimized person might ask that there be some compensation given to him for the inconvenience and anguish. Should he get interest or a flat fee? Either way, it means an additional charge that should be understood as a penalty for having acted badly and so is a punishment, and so we are back with justice aside from and beyond restoration.
What can you do to maintain social order if we dispense with the idea of justice? That doesn’t mean dispensing with criminal justice even though for historical reasons the crime problem is combined with the idea of justice because only punishment was available at managing crime. There would still be the need to use incarceration to keep repeated criminals from harming or robbing people. There just wouldn’t be the need or the inclination to punish criminals, and the public would regard criminal justice as a failure of having dealt with people rather than educating them or providing them with jobs so as to decrease the likelihood of criminality. But law would then have a more limited sphere, dealing with civil actions and the administration of a variety of kinds of legal procedure having to do torts and civil proceedings such as wills and divorce and family custody and intellectual property. Just criminal justice would atrophy.
There is a great conceptual gap between a social world seen without the concept of justice even though it doesn’t make much difference in ordinary life if we do away with the hangman and the sense that crime will be punished and that people become bereft of the sense that justice exists as at least a concept. Justice provides a law that connects events from the past into acts of today, so that a felon can be prosecuted for a law that long preceded its application to the perpetrator in point. Without justice or law there is no magic that connects one moment with the next, only that things do happen so that the subsequent moment has indeed been changed from the previous one. But what remains is a description of what changes do take place. Without any valuation, it is possible to observe what does occur in the world and what might happen to people. One can claim that frustration leads to anger, or that friendship can develop into love, or that agricultural societies are likely to get organized as monarchies while merchant societies are more likely to form democracies or oligarchies. It is the way it is, not the way we might tell the world it ought to be, however much our inclination to intrude “should” into our description of what is.
What would otherwise serve as the basis of civil society if there were no guardian of law and justice? Doestoevski said that there would be no morality if there were no God and a Grand Inquisitor to keep people in line. But, on the contrary, most people act in the way they do and conduct their ordinary lives through their natural affection towards other people and because people want to pursue their happinesses, whether to create and sustain a family and children, or to follow sports, or to develop a career. That is enough motivation, even if there are some few that engage in criminality because either the community or the individual is somehow deranged so as not to live out their lives in a way that has the usual frictions with wives, colleagues and neighbors. Those are facts of life and adding justice to the mix just makes life more angry and less serene.