Prosecutors who should be moving on to other criminals after securing a murder conviction must instead spend additional time putting together a rebuttal to psychological speculation. Even if this speculation does not in the end affect the outcome in the case at hand, it affects other cases that are left in limbo while time and resources are devoted to rebutting unsubstantiated theories. A significant amount of the violent crimes committed in America is committed by career criminals who are walking the streets—and stalking the innocent—while awaiting trial. This too is one of the costs of the quest for cosmic justice.
Much, if not most, of the concerns billed as “social justice” revolve around economic and social inequalities among groups. But the general principles involved are essentially the same as in other examples of pursuing cosmic justice. These principles have been proclaimed by politicians and by philosophers, from the soapbox to the seminar room and in the highest judicial chambers. Such principles deserve closer scrutiny and sharper definition.
MEANINGS OF JUSTICE
Back in the 1960s, President Lyndon Johnson made one of the classic statements of the vision of cosmic justice:
You do not take a man who, for years, has been hobbled by chains, liberate him, and bring him to the starting line of a race, saying, “You are free to complete with all others,” and still justly believe you have been completely fair.10
Professor John Rawls’ celebrated treatise, A Theory of Justice, puts the case more generally. According to Rawls, “undeserved inequalities call for redress,” in order to produce “genuine equality of opportunity.”11 This is “fair (as opposed to formal) equality of opportunity.”12 In other words, having everyone play by the same rules or be judged by the same standards is merely “formal” equality, in Professor Rawls’ view, while truly “fair” equality of opportunity means providing everyone with equal prospects of success from equal individual efforts.
Note how the word “fair” has an entirely different meaning in this context. Cosmic justice is not about the rules of the game. It is about putting particular segments of society in the position that they would have been in but for some undeserved misfortune. This conception of fairness requires that third parties must wield the power to control outcomes, over-riding rules, standards, or the preferences of other people.
Such attitudes are found from college admissions offices to the highest courts in the land. Thus a long-time admissions director at Stanford University has said that she never required applicants to submit Achievement Test scores because “requiring such tests could unfairly penalize disadvantaged students in the college admissions process,” since such students “through no fault of their own, often find themselves in high schools that provide inadequate preparation for the Achievement Tests.”13 Through no fault of their own—one of the key phrases in the quest for cosmic justice. Nor are such attitudes unique to Stanford. They are in fact common across the country.14
In short, all are not to be judged by the same rules or standards within the given process; pre-existing inequalities are to be counter-balanced. Note also that, once again, the quest for cosmic justice focusses on one segment of the population and disregards the interests of others who are not the immediate focus of discussion, but who nevertheless pay the price of the decisions made. After all, taxpayers and donors provide billions of dollars annually for the education of the next generation, but there is little or no sense of responsibility to them to maximize the productivity of the education they pay for, rather than engage in self-indulgent feel-goodism. Nor is there any concern for the effects on society as a whole in not putting educational resources where they will produce the largest return.
Since “undeserved inequalities” extend beyond prejudicial decisions made by others to encompass biological differences among individuals and groups—the fact that women are usually not as large or as physically strong as men, for example—and profound differences in the geographical settings in which whole races and nations have evolved culturally,15 not to mention individual and group differences in child-rearing practices and moral values, cosmic justice requires—or assumes—vastly more knowledge than is necessary for traditional justice.
Requirements for Cosmic Justice
Implicit in much discussion of a need to rectify social inequities is the notion that some segments of society, through no fault of their own, lack things which others receive as windfall gains, through no virtue of their own. True as this may be, the knowledge required to sort this out intellectually, much less rectify it politically, is staggering and superhuman. Far from society being divided into those with a more or less standard package of benefits and others lacking those benefits, each individual may have both windfall advantages and windfall disadvantages, and the particular combination of windfall gains and losses varies enormously from individual to individual. Some are blessed with beauty but lacking in brains, some are wealthy but from an emotionally impoverished family, some have athletic prowess but little ability to get along with other human beings . . . and so on and on. Add to this the changing circumstances of each individual over a lifetime—with relative advantages and disadvantages changing with the passing years—and the difficulties of merely determining the net advantages increase exponentially.
As just one example, a young woman of unusual beauty may gain many things, both personal and material, from her looks, without having to develop other aspects of her mind and character. Yet when age begins to rob her of that beauty, she may be left much less able to cope than others who never had the benefit of her earlier windfall gain. The challenge of determining the net balance of numerous windfall advantages and disadvantages for one individual at one given time is sufficiently daunting. To attempt the same for whole broad-brush categories of people, each in differing stages of their individual life cycles, in a complex and changing society, suggests hubris.
Ironically, some find in the complexities of the world a reason to abandon fixed rules and standards, in favor of individual fine-tuning. For example, a book seeking to justify racial preferences in college admissions was titled The Shape of the River because of a conversation on a river boat:
“You’ve got to know the shape of the river perfectly. It is all there is left to steer by on a very dark night ...”
“Do you mean to say that I’ve got to know all the million trifling variations of shape in the banks of this interminable river as well as I know the shape of the hall at home?”
“On my honor, you’ve got to know them better.”16
Can anyone seriously believe that college admissions officials can know individual applicants that well? Only by equating guesswork based on popular psychology and fashionable social theories with actual knowledge. Any river boat which operated that way would have run aground long ago.
Much of the quest for cosmic justice involves racial, regional, religious, or other categories of people who are to be restored to where they would be but for various disadvantages they suffer from various sources. Yet each group tends to trail the long shadow of its own cultural history, as well as reflecting the consequences of external influences. The history of every people is a product of innumerable cross-currents, whose timing and confluence can neither be predicted beforehand nor always untangled afterward. There is no “standard” history that everyone has or would have had “but for” peculiar circumstances of particular groups, whose circumstances can be “corrected” to conform to some norm. Unravelling all this in the quest for cosmic justice is a much more staggering task than seeking traditional justice.
To apply the same rules to everyone requires no prior knowledge of anyone’s childhood, cultural heritage, philosophical (or sexual) orientation, or the innumerable historical influences to which he or his forebears may have been subjected. If there are any human beings capable of making such complex assessments, they cannot be numerous. Put differently, the dangers of errors increase exponentially when we presume to know so many things and the nature of their complex interacti
ons. In particular, it is all too easy to be overwhelmed by clear and tragic historic injustices—and to glide easily from those injustices to a cause-and-effect explanation of contemporary problems. We know, of course, that causation and morality are two different things. Too often, however, we proceed as if we did not recognize this distinction.
In the United States, for example, many of the social problems of the contemporary black underclass are almost automatically attributed to “a legacy of slavery.” The prevalence of fatherless families in the black ghettos, for example, has been widely explained by the lack of legally constituted families under slavery. But if one proceeds beyond plausibility and guilt to actually seek out the facts, an entirely different picture emerges.
A hundred years ago, when blacks were just one generation out of slavery, the rate of marriage in the black population of the United States was slightly higher than that of the white population. Most black children were raised in two-parent families, even during the era of slavery, and for generations thereafter. The catastrophic decline of the black nuclear family began, like so many other social catastrophes in the United States, during the decade of the 1960s. Prior to the 1960s, the difference in marriage rates between black and white males was never as great as 5 percentage points. Yet, today, that difference is greater than 20 percentage points—and widening, even though the nuclear family is also beginning to decline among white Americans.17 Whatever the explanation for these changes, it lies much closer to today than to the era of slavery, however disappointing that may be to those who prefer to see social issues as moral melodramas.
The tragic and monumental injustice of slavery has often been used as a causal explanation of other social phenomena, applying to both blacks and whites in the Southern United States, where slavery was concentrated—without any check of the facts or comparisons with other and more mundane explanations. The fact that there are large numbers of black Americans today who are not in the labor force has also been one of those things causally (and often rather casually) attributed to slavery. But again, if we go back a hundred years, we find that labor force participation rates among blacks were slightly higher than among whites—and remained so, on past the middle of the twentieth century.18 If we want to know why this is no longer so, again we must look to events and trends much closer to our own time.
For the white population as well, many observers of nineteenth-century America saw striking social and economic differences between Southern whites and Northern whites—the Southerners having less education, poorer work habits, less entrepreneurship, more violence, and lower rates of invention, among other things. Even such astute observers as Alexis de Tocqueville attributed such differences to the adverse effects of slavery on the attitudes of Southern whites. Yet, if one traces back to Britain the ancestors of these Southerners, one finds the very same social patterns in these and other things, long before they crossed the Atlantic or saw the first black slave.
Migrations from Britain, like migrations from many other countries, were from highly specific places in the country of origin to highly specific places in the country of destination. Most of the people who settled in the colony of Massachusetts, for example, came from within a 60-mile radius of a town in East Anglia. Those who settled in the South came from different regions with very different cultural patterns. Moreover, the cultural contrasts between these people that many would later comment on in America had already been noted and commented on in Britain in earlier times, when these contrasts had nothing to do with slavery, which did not exist in Britain at that time.
We can all understand, in principle, that even a great historic evil does not automatically explain all other subsequent evils. But we often proceed in practice as if we did not understand that. Cancer can indeed be fatal, but it does not explain all fatalities, or even most fatalities.
The larger point here is how easy it is to go wrong, by huge margins, when presuming to take into account complex historical influences. The demands of cosmic justice vastly exceed those of traditional justice—and vastly exceed what human beings are likely to be capable of. The great U.S. Supreme Court justice Oliver Wendell Holmes said that there may be some people who are simply born clumsy, so that they may inadvertently injure themselves or others—for which, presumably, they will not be blamed when they stand before the courts of heaven. But, in the courts of man, they must be held to the same standards of accountability as everyone else. We do not have the omniscience to know who these particular people are or to what extent they were capable of taking extra precautions to guard against their own natural tendencies. In other words, human courts should not presume to dispense cosmic justice.
No small part of the legal shambles of the American criminal justice system since the 1960s, accompanied by skyrocketing rates of violent crime, resulted from attempts to seek cosmic justice in the courtrooms. In a series of U.S. Supreme Court decisions in the early 1960s, various restrictions were placed on the police in their arrest and interrogation of suspects in criminal cases, and in the search of their property. The rationales for these restrictions included the claim—undoubtedly true—that inexperienced and amateurish criminals, ignorant of the law, were more likely to make admissions that would later prove to be fatally damaging to their own legal defense, while sophisticated professional criminals and members of organized crime syndicates were far less likely to trap themselves in this way.
Clearly this is an injustice from some cosmic perspective—and correcting this inequity among criminals was explicitly the perspective of the Attorney General of the United States and of the Chief Justice of the Supreme Court at that time.19 However, as in other instances of the quest for cosmic justice, the costs to third parties were largely disregarded, pretended not to exist, or dismissed with some such lofty phrase as “That is the price we pay for freedom.” Presumably, the United States was not a free country until the 1960s.
A more recent cause célèbre of the American criminal justice system was the murder trial of former football star O. J. Simpson, which provoked widespread consternation, not only because of its “not guilty” verdict in the face of massive evidence to the contrary, but also because of the sheer length of time that the trial took. It was more than a year after the murder itself before the trial concluded, even though Simpson was arrested within days after the body of his former wife was discovered. Those who take on the daunting task of defending the current American criminal justice system were quick to claim that it was the defendant’s wealth, celebrity, and race which made the trial so long, as well as the verdict so unexpected, thereby making the case too atypical to be part of a general indictment of the American criminal justice system. However, an even longer time elapsed in another contemporary murder case in which none of these factors was present, even though that suspect was likewise arrested not long after that crime.
Nearly three years elapsed between the murder of twelve-year-old Polly Klaas in 1993 and the sentencing of her murderer, Richard Allen Davis, in 1996—even though there was such evidence against the killer that there was not even a claim made by his defense attorney that Davis had not committed the crime. What could have taken so long then? Among other things, there were extended arguments over all sorts of legal technicalities—technicalities created not by legislation but by the judicial interpretations of appellate courts, seeking to remove ever more remote dangers of injustice by creating the greater injustice of crippling a society’s ability to defend itself in even the clearest cases of unquestioned guilt.
“Merit” and Cosmic Justice
Related to cosmic justice is the seductive, misleading, and often pernicious concept of “merit,” which is either explicit or implicit in much that is said by people in various parts of the philosophical spectrum.
A man born to ignorant, abusive, immoral, and drug-ridden parents may exhibit great personal merit in becoming nothing more than an honest and sober laborer who supports his family and raises his children to be decent and upright c
itizens—while another man, born to the greatest wealth and privilege and educated in the finest schools, may exhibit no greater personal merit in becoming a renowned scientist, scholar, or entrepreneur. Indeed, would most of us not rejoice more to see such a laborer win millions of dollars in a lottery than we would to see this scientist, scholar, or entrepreneur gain millions because of his proficiency in his chosen field? Have religious people not for centuries held out the hope that humble but decent people would someday receive a more transcendent reward in a better world after death? It does not matter that some leaders may have held out such hopes cynically, in order to reconcile people to their painful fate in this world, for such cynicism works only because it resonates with a feeling that is genuine in others.
For some, it is but a short step from wishing that personal merit were rewarded—here and now—to promoting policies designed either to do so or simply to redistribute wealth in general, on grounds that much or most of that wealth is unmerited by those who currently hold it. Tales about princes and paupers who were mistakenly switched at birth, or about servants living “downstairs” who have as much (or more) character as their wealthy employers living “upstairs,” all resonate with the idea that many factors besides personal merit determine our economic and social fates. No doubt this belief is true to a very considerable extent, certainly to a greater extent than many of us would wish. But, again, the question is not what we would do if we were God on the first day of Creation or how we would judge souls if we were God on Judgment Day. The question is: What lies within our knowledge and control, given that we are only human, with all the severe limitations which that implies?