Whatever its mechanisms or details, social justice has been the dominant theme of the unconstrained vision, from Godwin to Rawls. Like other forms of justice, it is conceived as a result rather than a process. But while the imperative of social justice pervades the unconstrained vision, it is virtually non-existent in the constrained vision. Social thinkers in the tradition of the constrained vision deal with issues of income distribution as a process, and consider its humane aspects as well as efficiency issues, but there is no implication that one income distribution result is more just than another. F. A. Hayek is one of the few writers with a constrained vision who discusses social justice at all- and he characterizes it as "absurd,"70 a "mirage,"71 "a hollow incantation,"72 "a quasi-religious superstition,"73 and a concept that "does not belong to the category of error but to that of nonsense."74 Other contemporaries of his in the tradition of the constrained vision- Milton Friedman and Richard Posner, for example- do not bother to discuss it, even as something to be rebutted.
The concept of social justice thus represents the extremes of the conflict of visions- an idea of the highest importance in one vision and beneath contempt in the other.
The Unconstrained Vision
Humane efforts to help the less fortunate have been part of both visions over the centuries. Adam Smith took part in such efforts, both in theory and in practice.75 So did John Stuart Mill.76 The campaign against slavery was also supported by leading figures in both traditions-by Burke and Smith, as well as by Godwin and Condorcet.77 In the twentieth century, schemes of income transfer to the poor have been proposed by Milton Friedman and by George Bernard Shaw.78
What distinguishes the unconstrained vision is not that it prescribes humane concern for the poor, but that it sees transfers of material benefits to the less fortunate not simply as a matter of humanity but as a matter of justice. Edward Bellamy's novel, Looking Backward, protested not only that the poor were relegated to receiving crusts, but that insult was added to injury by calling the crusts charity. As co-inheritors of a prosperity created largely through the efforts of preceding generations, they were entitled to more- in the name of justice.
Central to the concept of social justice is the notion that individuals are entitled to some share of the wealth produced by a society, simply by virtue of being members of that society, and irrespective of any individual contributions made or not made to the production of that wealth. Whether they are entitled to a full share or a smaller share- perhaps only some minimum of "decency"- is a question answered variously by different social thinkers in this tradition, but the crucial point is that everyone is seen as entitled to some share as a matter of justice, not simply as a matter of charity. According to Godwin:
The doctrine of the injustice of accumulated property has been the foundation of all religious morality. Its most energetic teachers have been irresistibly led to assert the precise truth in this respect. They have taught the rich, that they hold their wealth only as a trust, that they are strictly accountable for every atom of their expenditure, that they are merely administrators, and by no means proprietors in chief. But, while religion thus inculcated on mankind the pure principles of justice, the majority of its professors have been but too apt to treat the practice of justice, not as a debt, which it ought to be considered, but as an affair of spontaneous generosity and bounty.
The effect which is produced by this accommodating doctrine, is, to place the supply of our wants in the disposal of a few enabling them to make a show of generosity with what is not truly their own, and to purchase the submission of the poor by the payment of a debt. Theirs is a system of clemency and charity, instead of a system of justice. It fills the rich with unreasonable pride, by the spurious denominations with which it decorates their acts; and the poor with servility, by leading them to regard the slender comforts they obtain, not as their incontrovertible due, but as the good pleasure and grace of their opulent neighbors.79
Similar themes have remained part of the tradition of the unconstrained vision. George Bernard Shaw, disdained people who "plunge into almsgiving to relieve their sickly consciences," partly because "it fills the paupers with humiliation, the patrons with evil pride, and both with hatred," but more fundamentally because "in a country justly and providently managed there could be neither excuse for it on the pauper's part nor occasion for it on the patron's."80
While the concept of social justice in the unconstrained vision revolves around issues of income distribution- conceived as a statistical result- there is also a subsidiary concern for social mobility, also conceived as a result. All of these concerns are viewed in radically different terms in the constrained vision.
The Constrained Vision
Although F. A. Hayek is exceptional among leading figures in the constrained vision in discussing social justice at all, the nature of his discussion may provide clues as to why so many others in this tradition do not bother to discuss it. While those with the unconstrained vision define social justice as a result, which they warmly embrace, Hayek treats social justice as a process, which he bitterly rejects-"the atrocious principle implied that all rewards should be determined by political power."81 Hayek neither challenges, accepts, nor denies the results characterized by others as social justice. His objection is not that some alternative pattern of income results is preferable, but rather that the attempt to create such preconceived results means creating processes which "can destroy a civilization."82
Hayek's whole method of thinking is directly the opposite to that of Rawls. When Rawls repeatedly speaks of reasons of justice why society should "arrange"- somehow- one result rather than another, he abstracts from social processes to concentrate on social goals. But Hayek abstracts from these social justice goals to concentrate on the characteristics of the processes created in pursuit of these goals- and the dangers that such processes are deemed to represent to freedom and general well-being. In short, each has assumed away the primary concern of the otherprimary not simply as to whether freedom or justice is more important, but as to whether process characteristics or goal characteristics are more important.
Hayek treats much of the rhetoric of social justice as a confused evasion of harsh realities inherent in the processes required to move toward such goals. To Hayek, those things commonly modified by the adjective "social"- justice, conscience, democracy- are by their very nature inherently social, so that this adjective is meaningless by reason of redundancy, if the word is used in an honest and straightforward way. It is "incredibly empty of meaning," according to Hayek,83 so that "to employ it was either thoughtless or fraudulent."84
Although Hayek found the concept of "social justice" to be devoid of specific meaning, he found it fraught with insinuations which he considered both erroneous and dangerous. Many "who habitually employ the phrase do not know themselves what they mean by it,"85 he said, but others who have used it were not simply engaging in "sloppy thinking" but "intellectual dishonesty."86 According to Hayek, "the phrase 'social justice' is not, as most people probably feel, an innocent expression of good will towards the less fortunate," but has become in practice "a dishonest insinuation that one ought to agree to a demand of some special interest which can give no real reason for it."87 The dangerous aspect, in Hayek's view, is that "the concept of 'social justice'... has been the Trojan Horse through which totalitarianism has entered"88- Nazi Germany being just one example.89
At the social policy level, Hayek objected to the very notion of "the 'actions' of society, or the 'treatment' of individuals and groups by society" as "anthropomorphism or personification" incompatible with the concept of systemic social processes.90 "To demand justice from such a process is clearly absurd," according to Hayek, for "the particulars of a spontaneous order cannot be just or unjust,"91 because "the results are not intended or foreseen, and depend on a multitude of circumstances not known in their totality to anybody"92 The hidden-and dangerous-significance of the demand for social justice, in Hayek's view, was that it implied
a drastic change in whole processes under the bland guise of a mere preference for better distribution. According to Hayek, "society, in the strict sense in which it must be distinguished from the apparatus of government, is incapable of acting for a specific purpose," so that "the demand for 'social justice' becomes a demand that the members of society should organize themselves in a manner which makes it possible to assign particular shares of the product of society to the different individuals or groups."93
In short, those who argue for social justice argue for a particular set of results while Hayek's objections are to the process implied by seeking these or any other specific social results for particular individuals or groups. What he objected to was "a desire for a comprehensive blueprint of the social scene as a whole."94 For him, "personification" of society as "a thinking, collective entity" capable of producing specifically desired social results presupposed a mastery of social details inherently "beyond our ken."95
It was not merely the futility of the attempt but the dangerousness of the attempt that was central to Hayek's objections. In his view, human freedom was crucially dependent on rules in general, and especially on rules which carved out domains of exemption from government power. These rights- as conceived in the constrained vision- "protect ascertainable domains within which each individual is free to act as he chooses"96 and are thus the very opposite of rights to social justice, which imply expansion of the governmental domain to produce social results to which particular individuals and groups are morally entitled. Whether they are or are not morally entitled- a subject dealt with at great length by various writers in the tradition of the unconstrained vision- is a subject totally ignored in Hayek's various writings on social justice. This is logically consistent with his view of the futility of the attempt and its dangerousness. It may also explain why other writers with a constrained vision do not discuss the general concept of social justice at all, though they deal with such specifics as income distribution or the "social responsibility" of business,97 or- in the case of Richard Posner-write a whole treatise on justice.98 Given the assumptions of the unconstrained vision, social justice is at the heart of all discussions of policy or societies. Given the assumptions of the constrained vision, it is hardly worth talking about, just as square circles are not worth talking about, however great the desirability of such things might be if they were possible.
The greatest danger of the concept of social justice, according to Hayek, is that it undermines and ultimately destroys the concept of a rule of law, in order to supersede merely "formal" justice, as a process governed by rules, with "real" or "social" justice as a set of results to be produced by expanding the power of government to make discretionary determinations in domains once exempt from its power. While Hayek regarded some advocates of social justice as cynically aware that they were really engaged in a concentration of power, the greater danger he saw in those sincerely promoting the concept with a zeal which unconsciously prepares the way for others- totalitarians- to step in after the undermining of ideological, political, and legal barriers to government power makes their task easier. Thus he regarded Nazism as "the culmination of a long evolution of thought"99 in Germany by socialists and others whose goals were vastly different from those of the Nazis, but who promoted the erosion of respect for legal rules in favor of the imperatives of specific social results.10°
Communism has likewise been seen by Hayek as a residual beneficiary of the way of thinking promoted by people who may have no desire to see communism triumph. According to Hayek, "distributive justice" is inherently "irreconcilable with the rule of law,"101 and the ideal of a government of laws and not of men is all that stands between a free society and totalitarianism. He quotes a Soviet writer who declared that "communism means not the victory of socialist law, but the victory of socialism over any law."102 To Hayek, that is what social justice as an overriding goal ultimately means, as an alternative to merely "formal" justice as impersonal rules of a process.
SUMMARY AND IMPLICATIONS
The Unconstrained Vision
In the unconstrained vision, where man is capable of foreseeing and controlling the social consequences of his decisions, both the individual and society are causally and morally responsible for having made choices whose social results are what they are. The nature of socially just results is therefore a central concern of this vision, which has produced a number of treatises on the principles of social justice, from William Godwin's Enquiry Concerning Political justice in the eighteenth century to John Rawls' Theory of Justice in the twentieth. This vision demands for the less fortunate not merely charity but justice. It demands of its laws not merely procedural rules but just results- with the former yielding to the latter in case of conflict.
Judges are not to limit themselves to the application of procedural rules, in disregard of the resulting justice or injustice, according to the unconstrained vision, but are to apply moral standards implicit in the law, which rules are essentially attempts to suggest. Judges cannot pretend, to themselves or others, that they are only applying prescribed procedural rules when in fact particular legal rules produce particular social results, so that social choices have been made implicitly by judges, whether they acknowledge them or not. Those with the unconstrained vision want these choices made explicitly, based on constitutional values and norms, rather than on narrow readings of constitutional rules on the one hand, or purely ad hoc judicial preferences on the other.
In this vision, the rights of individuals are to be "taken seriously" as essential recognitions of their humanity, and social expediency is to yield when basic human rights such as free speech or the right of the accused to constitutional protection are at issue.103 In conflicts between rights, those which define the human being as a subject rather than an object are to have categorical preference over other rights, such as rights to property, and all rights are to trump all interests, such as a general interest in social peace, or economic efficiency. Inconveniences caused by pickets or those handing out leaflets are deemed a small price to pay for the basic right to free speech, and the fact that some criminals escape the law due to constitutional protections essential to the recognition of the basic humanity of all is likewise a price worth paying, to those with the unconstrained vision.
Given the greater ability of individuals and social decision-makers to foresee the consequences of their actions in the unconstrained vision, there is a correspondingly greater moral burden on them to exhibit "social responsibility," rather than simply to pursue their own individual interests within procedural rules. In William Godwin's vision especially, each individual thus becomes in effect a surrogate decision-maker for society, even when making purely individual and unofficial decisions- a surrogate not in the sense of controlling others' decisions but in the sense of making his own available choices in such a way as to promote the general well-being, rather than his own. Thus the radical individualism of Godwin, which is procedurally the same as that of modern libertarianism in its sweeping rejection of a government role in the economy, is substantively much closer to modern socialism in wanting specific social results to be the direct object of the decision-making process.
Equality has been at the heart of the tradition of the unconstrained vision, in its conception of justice, as elsewhere. Degrees and modifications of equality have varied among those in this tradition but, in whatever degree or modification, equality has meant equality of results. Given man's ability to shape social results, this has included compensatory rather than equal treatment of some. While the modern form of this approach in "affirmative action" policies is quite recent, the idea of compensatory social treatment goes back at least as far as Condorcet in the eighteenth century.104
In addition to being logically consistent with the unconstrained vision, "affirmative action" also illustrates the role of rights and interests in that vision. Members of the general population are deemed to have an interest in particular jobs, college admission, and other benefits to which
compensatory preferences for selected groups may apply. But the members of those selected groups have a right to be where they would have been except for historical patterns of discrimination. Interests therefore give way to rights, which are "trumps." Individuals from either the majority population or selected minorities have equal interests and suffer equal losses of those interests when denied a job, college admission, or other benefits. But members of the selected minority groups are also deemed to have suffered past stigmatizing implications of inferiority through discrimination, which current rejected applicants from the majority population do not suffer in "reverse discrimination." Since stigmas of inferiority are seen as denials of basic humanity, they violate rights, as rights are conceived in the unconstrained vision, while "reverse discrimination" can violate only interests. Once again, in this vision, rights take precedence over interests.