Justice

Justice is the cardinal political virtue, and the conservative tradition has held to a recognisable conception of it for two and a half millennia. The conception is Aristotelian in its philosophical structure, Thomistic in its development, and Anglo-American in its institutional embodiment. It distinguishes between several kinds of justice — commutative, distributive, retributive — each with its own logic and its own institutional home, and it insists that the political community owes justice in each of these forms to its members.

What the conservative resists is the late-twentieth-century recasting of justice as a single overarching demand for social distribution, administered by the state, and authorised by a theoretical construction that abstracts from the concrete forms in which actual political communities have done justice to actual persons.

Key takeaways

• Justice, in the conservative tradition, names the virtue and the institutional arrangement by which each person receives what is properly his — the classical formula suum cuique tribuere that the tradition has carried from Aristotle and Aquinas through the natural-law jurisprudence of the early modern period into the constitutional thought of the Anglo-American settlement.
• The tradition distinguishes the older conception of justice as fidelity to a moral order discovered through reason and tradition from the modern conception of social justice as a pattern of distribution to be engineered by the state, and most conservative thinkers regard the latter as a confusion that has displaced rather than developed the former.
• Conservative defence of justice in its classical sense — commutative justice in exchange, distributive justice in offices and honours, retributive justice in punishment — is the principal political content of the tradition’s commitment to the rule of law and to the institutional differentiations that legal equality requires.

History and context

The Western tradition of justice begins with Plato’s Republic and Aristotle’s Nicomachean Ethics. Aristotle’s Book V of the Ethics supplied the distinction that structured subsequent thought: between distributive justice, governing the allocation of honours and offices in the political community, and corrective or commutative justice, governing the rectification of wrongs in private exchange.¹ Aristotle’s account treated justice both as a virtue of persons — the disposition to give each his due — and as a property of arrangements that distribute correctly.

The Roman jurists developed the institutional side of the inheritance. Ulpian’s formula iustitia est constans et perpetua voluntas ius suum cuique tribuendi — justice is the constant and perpetual will to render to each his due — became the canonical definition that passed through the Corpus Iuris Civilis of Justinian into the medieval revival of Roman law at Bologna and from there into the ius commune that shaped European legal thinking through the early modern period.

Thomas Aquinas’s Summa Theologiae (II-II, qq. 57–122) supplied the synthesis. Aquinas integrated the Aristotelian division with the Christian conception of natural law, distinguishing the precepts of justice that bind by reason alone from those that require revelation and showing how the institutional forms of justice could be understood as instantiations of an unchanging moral order.² This synthesis structured Catholic moral and political teaching through the early modern Scholastics — Vitoria, Suárez, Molina — into the natural-law jurisprudence of Grotius and Pufendorf, and from there into the common-law tradition of Coke, Hale, and Blackstone.

The early modern period saw the gradual translation of the classical conception into the institutional forms of the modern state: the differentiation of criminal from civil jurisdiction, the development of equity alongside common law, the codification of commercial law, and the constitutional doctrines of due process and the rule of law. These developments were not, in the conservative reading, departures from the classical conception but its institutional embodiment in the conditions of the modern political community.

The twentieth century introduced a sharply different conception. John Rawls’s A Theory of Justice (1971) recast justice as a question of distributive pattern, derivable from the hypothetical agreement of rational persons behind a veil of ignorance, and producing principles — equal basic liberties, fair equality of opportunity, the difference principle — that the basic structure of society must satisfy.³ The Rawlsian framework, in its various developments by Dworkin, Sen, Nussbaum, and others, has dominated academic political philosophy in the English-speaking world since.

Conservative response to this development has been twofold. Friedrich Hayek’s Law, Legislation and Liberty, Volume 2 (1976), subtitled The Mirage of Social Justice, argued that the concept of social justice, applied to the outcomes of a spontaneous order such as the market, was strictly meaningless: a pattern produced by the actions of many persons pursuing their own ends could not be just or unjust in the moral sense in which an intentional action could.⁴ Alasdair MacIntyre’s After Virtue (1981) and Whose Justice? Which Rationality? (1988) developed a deeper philosophical critique, arguing that the modern liberal tradition had inherited fragments of the older conception of justice without the philosophical and theological framework that gave them coherence, and that the result was the irresoluble disagreement characteristic of contemporary moral philosophy.⁵

The conservative position

Three claims structure the tradition.

First, justice is plural, not singular. The conservative reading insists on the Aristotelian-Thomistic differentiation: commutative justice governing exchanges, distributive justice governing the allocation of public goods and offices, retributive justice governing punishment. Each has its own logic, its own institutional setting, and its own appropriate measure. The collapse of these differentiations into a single demand for social distribution loses the distinctions through which the tradition has actually thought about giving each his due.

Second, justice is a virtue before it is a pattern. The classical conception treats justice first as a disposition of persons — the constant will to render what is due — and only derivatively as a property of arrangements. Institutional arrangements are just when they reflect and reinforce the virtue of justice in those who operate within them. The reduction of justice to a pattern of distribution abstracts from the human reality in which justice actually exists.

Third, the rule of law is the political form of justice. The conservative tradition has held that the political community gives institutional form to justice through general rules, applied impartially, that prescribe the framework within which persons pursue their own ends. The displacement of general rules by case-by-case administrative judgement — characteristic of the regulatory and redistributive state — is, on the conservative reading, the displacement of justice itself by the discretion of officials.

Differing positions

The Rawlsian liberal position holds that the conservative defence of formal legal equality is insufficient to justice in the modern political community, and that a fully adequate conception of justice must address the basic structure of society and the distribution it produces. The conservative reply concedes the moral seriousness of the Rawlsian project but contests its central move: that the abstraction from particular attachments produces a conception of justice that is in fact more, not less, partial than the tradition it claims to supersede.

The libertarian position holds that justice is essentially commutative — that any distribution of holdings produced by voluntary exchanges from a just starting point is itself just, regardless of the resulting pattern. Robert Nozick’s Anarchy, State, and Utopia (1974) supplied the most rigorous statement of the position. The conservative reading shares the libertarian’s resistance to patterned redistribution but is more cautious about the libertarian’s reduction of justice to property rights, holding that the political community has legitimate concerns with the distribution of public goods that the libertarian framework cannot capture.

The communitarian and virtue-ethical positions developed by MacIntyre, Charles Taylor, Michael Sandel, and Stanley Hauerwas converge in important respects with the conservative tradition. The remaining disagreements are internal to a shared rejection of the dominant liberal framework and concern the relative weight to be given to tradition, virtue, and community in articulating the alternative.

References

1. Aristotle, Nicomachean Ethics, Book V, in The Complete Works of Aristotle, ed. Jonathan Barnes (Princeton: Princeton University Press, 1984).
2. Thomas Aquinas, Summa Theologiae, II-II, qq. 57–122, trans. Fathers of the English Dominican Province (Westminster, MD: Christian Classics, 1981).
3. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).
4. Friedrich A. Hayek, Law, Legislation and Liberty, Volume 2: The Mirage of Social Justice (Chicago: University of Chicago Press, 1976), chapters 7–9.
5. Alasdair MacIntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1981); Whose Justice? Which Rationality? (Notre Dame: University of Notre Dame Press, 1988).