General Justice and Public Reason
The state is not the only agent for securing the common good, and excessive state activity may even threaten it. A close analysis of what we owe each other within a political community highlights this fact.
The Charity of St. Elizabeth of Hungary by Edmund Leighton, oil on canvas, 1895 (Photo credit: Wikimedia Commons)
Patrick Deneen’s book Why Liberalism Failed has led to a surge in the so-called postliberal movement. These postliberals like to complain that classical liberals have historically been too concerned with checks, balances, and individual rights, to the detriment of the moral health of communities. Although there is some variety in their theoretical ideals, in practice, they almost always favor more muscular states like Viktor Orbán’s Hungary. These postliberals also tend to draw heavily on classical political thought, and their recourse to significant figures of the Aristotelian tradition poses a challenge to those of us who are not postliberals working within that same tradition.
Fortunately, one can also draw on Aristotelian tradition to support an alternative. There are various avenues for demonstrating this, but here I will explore a less-traveled path. I will look at the matter from the standpoint of what is called “general justice.” This concept relates to the moral relationship between individuals or groups and their larger communities, and a developed understanding of it can illuminate issues of social and political obligation, political authority, and even “public reason” in a way that contributes to a principled defense of limited government and helps us better appreciate the achievement of modern constitutional democracies.
General Justice in Aristotle and Aquinas
In Book V of the Nicomachean Ethics, Aristotle briefly discusses what he calls general justice, which is a state of character that concerns our duty toward the common good or common advantage of the community. It is called general because it coincides with complete virtue, since all virtue can be directed toward that same common good. Aristotle also calls it “legal” justice, because laws are likewise made for the common good, and in Aristotle’s ideal polity, this includes the goal of forming a virtuous citizenry—though Aristotle admits that being a good citizen does not necessarily coincide with being a good person (NE V, II; and Politics III, 4). Given these paternalistic tendencies, postliberals have some right to feel at home with Aristotle’s political thought.
Although he affirms what Aristotle says in its essentials, Aquinas offers some additional observations about general justice in his Summa Theologiae (II-II, q. 58, aa. 5–6). He says that justice concerns others both individually and “in general, in so far as a man who serves a community, serves all those who are included in that community” (ST II-II, q. 58, a. 5, c.). He thus identifies the ones with whom the moral virtue of general justice is primarily concerned: those who comprise the community with whom we share common goods. Although general justice has been defined in various ways throughout the Aristotelian tradition, defining this virtue in terms of our relation to others in our communities “in general” perhaps better carves the matter “at its joints” (see Plato, Phaedrus 265e). General justice thus does not primarily concern our relationship to the state or sovereign, or to the common good as an abstract ideal, but to the common good of the real individuals who make up our communities. This will have implications for how we think about the common good insofar as it is something that makes demands on us.
“No individual has by nature a right to make collective determinations for those communities. Only the community itself can delegate authority to make such collective determinations.”
Aquinas holds, moreover, that the chief locus of general justice resides in the leader of the community, and he probably says this because the leader of the community has a special role in directing matters to serve the common good. But general justice also pertains to all members of the community “secondarily and administratively” (ST II-II, q. 58, 6, c.). Modern followers of Aquinas might, by contrast, place more emphasis on the demands of general justice of citizens simply because of the happy proliferation of democratic regimes. As participants in politics, it is also the virtue of general justice that regulates not only our obligation to obey the law and proper authorities but also the sorts of legislation and leaders we, as citizens, favor.
Justice, General Justice, and the Common Good
As with any kind of justice, justice to our community is grounded in the common worth that human beings have as free and rational creatures. And in Aristotle and Aquinas, equality and proportionality are central to justice. As Aquinas puts it, the virtue of justice directs persons toward the good that is “equality in things relevant to communal life,” and in other places he discusses this in terms of rendering “to each one his own,” which gives rise to other precepts like that of doing no harm to others. Aquinas says surprisingly little about the golden rule itself, but it is implied in his other statements about justice and in his affirmation of the precept to love one’s neighbor as oneself—a norm that extends and perfects the golden rule. All his statements about justice, moreover, presuppose a basic worth shared by all persons.
If we consider the common good from this perspective, it is not difficult to see how it creates demands of general justice. If each of us has by nature an equal part in the community, it is a requirement of justice that we do our part to promote the common goods that we need other people in the community to help secure. To a certain extent, the common good attracts practical reason like any other good: practical reason thus grasps peace, justice, friendship, and knowledge all as goods to be pursued, and their opposites avoided. Nonetheless, as collective goods, peace and societal justice are achieved only through the efforts of many people. Our own effort is often insignificant and easy to neglect, and therefore it is easy for an individual to become a free rider, not doing his own part to secure the common good. If not solidarity (social love), then it is our commitment to general justice that compels us to do our part to secure the common good, even when that part seems insignificant.
Since there is such a close relationship between general justice and the common good, it is worth clarifying what the common good includes. The common good, as it is typically understood in the Aristotelian tradition is not like a utilitarian “greater good,” which is the total happiness of the community and is often used to justify state activity and coercion. A better way of thinking about the common good is to analyze it in terms of its constituent parts, like how we can analyze the good life in terms of its constituent goods (e.g., friendship and knowledge). The common good, likewise, can be analyzed in terms of common goods like peace and justice. These common goods are practical communal goods that are shared by all members of the community, and as practical communal goods, they are the object of collective activity. Some examples of common goods beyond peace and justice would be order, civic friendship, and those goods we colloquially call “the economy,” such as economic opportunity, security, and prosperity, as well as environmental goods. A common good like justice could also include legal security, distributive justice, and the security of basic rights.
Moreover, the common good of a community extends beyond the purview of the law; therefore, general justice also extends beyond the law. There is no law in the United States, for instance, that says we all must become politically informed and vote (though some countries make voting mandatory), but it is because of general justice that we hold ourselves to the same standards for securing the common good as we hold others, which for most of us means trying to become informed voters. Similarly, there is no law that says we must recycle metals or avoid wasting gasoline, but many of us recognize the moral duty to do so. Aristotle tended to see the law’s scope as encompassing all this, but that is often unnecessary and can even do more harm than good. Therefore, taken in their most general senses, the scopes of general justice and the common good are more expansive than the scope of the state or its laws.[1]
General Justice and Political Obligations
General justice also grounds our obligation to obey the law and civil authorities. In other words, it is out of justice toward our political community, not toward the state itself or any sovereign, that we do so. It is obvious to most people that to achieve certain common goods like peace, order, and justice, we need laws backed by penalties, as well as authorities to codify, execute, and adjudicate them. This is because, as John Finnis and others have put it, there are coordination problems to be resolved for the sake of securing the common good—coordination problems that require unique determinations to be made. There must be a unique determination about this or that person’s guilt or innocence, or about whose side to take in this or that property dispute. And that can only be achieved through unanimity or authority, with the former often being a practical impossibility. These points were made with less analysis in the scholastic social contract tradition (e.g., Suárez) by appeal to the “inconveniences” of a state of nature as pointing to the need for an authority to direct affairs toward the common good.
We can already see here elements of a doctrine of public reason that I will elaborate on later. We can justify coercive laws to others in our community by showing that such laws are important for securing the same common good to which everyone has duties of general justice. Not only are such laws often justified, but respect for them is usually morally demanded.
General Justice and Communal Consent
Most treatments of political authority would coincide with a discussion of the citizen’s obligation to obey the law. After all, what is politically authority if not the power to create political obligations for others? This is how it is often understood (see Anscombe, p. 132, Simon, and Finnis). But by looking at the matter from the standpoint of general justice, and by recognizing that general justice compels both citizens and political authorities, we can recognize another relevant concern. Although the morality of those in power exercising authority has been partially addressed, the issue of usurped authority remains. Usurpation is clearly a violation of general justice on the part of the usurper. Yet paradoxically, citizens are sometimes bound by general justice to obey even the dictates of a usurping power.
Fortunately, scholastic social contract and consent theory provide tools for a more complete account of the demands of general justice on the purported authority. These theories are either ignored or dismissed not only by postliberals but by most people working within the Aristotelian and Thomistic traditions. They are also widely misunderstood. Consent and social contract theory are typically understood as primarily explaining the political obligation of citizens, and they have been rejected by many political theorists and philosophers as such. But if these doctrines are instead considered from the standpoint of what purported authorities owe the political community by general justice, and consequently what citizens owe one another insofar as they participate in the political process, then they become much more plausible. Thus, according to this interpretation, we are not looking primarily for an explanation of what makes laws authoritative; we are looking for an explanation of what authorizes purported authorities to make determinations for the whole community. As Spanish Scholastics put it in various places, and as Cardinal Robert Bellarmine also has it, beyond the natural authority of parents, no one head of household in society is naturally an authority over others. For reasons mentioned above, people come together to form a political community, which Suárez calls a “moral union” or union of wills (In opera sex dierum, V.7.3). The communities they form have need of authority, which community members usually delegate to individuals.[2] But the legitimate determination of the authorities, and the limits of the authority, is ultimately a decision of the community itself.
Analyzing communal consent, we could say that it involves the consent of many people within a political community, but it must also be understood in connection with the explicit or implicit social pact that emerges within that same community. For example, a Supreme Court Justice has been granted authority from the community to behave in a certain role and according to the implicit and explicit social pact governing that role’s function. The exact nature of that authority is often subject to debate, but surely there is a line that a Justice must recognize as beyond the authority granted to her by the community. Any additional “authority” that the Justice exercises is an act of taking decisions out of the hands of the same community. In other words, by seizing further power the Justice would put herself above the whole community of her equals. For a Supreme Court Justice to interpret the law or Constitution however she wants, to go beyond what she has been granted by that same community, is thus a case of usurpation and an act against general justice. And this is so even if the community often must go along with the Court’s decision out of concern for the common good; only the most extreme cases of usurpation, after all, warrant civil disobedience. But that does not mean the Justice’s usurpation is thereby justified, even if, as often happens, a free communal consensus later emerges that legitimates the usurpation after the fact (some argue that communal consensus legitimated the incorporation doctrine, by which the Fourteenth Amendment’s Due Process Clause was interpreted as extending the Bill of Rights to protect from state and not merely federal interference).
Similarly, if a foreign authoritarian hijacks our government, and uses threats of nuclear attacks to force the populace’s compliance, then such an existential threat may make it reasonable for people in our political community to follow his dictates, at least temporarily. But that would not justify the dictator as a legitimate authority, and he would still be violating general justice, not only for the unjustified violence he threatens upon the community but also for stealing its self-governance.
Therefore, according to this interpretation the main purpose of the scholastic consent theory was to identify necessary moral conditions for exercising authority. It was not primarily, as even excellent interpreters of the Spanish Scholastics suppose, a doctrine to explain the citizen’s obligation to obey the law. It does, however, concern citizens insofar as they participate in the political process (e.g., supporting fair processes for determining laws and leaders). However, my concern here is not primarily exegetical but philosophical. Free and equal persons form political communities, and no individual has by nature a right to make collective determinations for those communities. Only the community itself can delegate authority to make such collective determinations, and, even then, only according to a standard acceptable to its members. Outside extraordinary circumstances, moreover, this will require some kind of communal consent (not necessarily expressed in the form of explicit votes as happens in a democracy); at very least it involves a functional and free consensus about the processes for making such determinations. From the standpoint of the leader or anyone who partakes in the political process, this is usually a demand of general justice.
The Limits of Political Authority: General Justice and Public Reason
I have noted that the need for an effective authority to secure common goods like peace and justice was the rationale for laws backed by penalties and for the establishment of authorities to determine, execute, and adjudicate them. It is because of our shared duties to the common good (duties of general justice) that we are usually bound to obey such authorities. But I have also shown how general justice binds political authorities as well as citizens insofar as they support laws and leaders. Citizens, like their leaders, owe their political equals a rationale for the use of coercive law. This might sound like Rawlsianism to a postliberal, but one can feel its moral weight if one treats the common good not as an abstract value but as a good shared by everyone in our political community—a political community comprised of persons over whom we have, as St. Robert Bellarmine put it, no natural authority.
A principle of public reason that I mentioned at the end of the account of political obligation discussed above is that to justify state activity or coercive law to other members of one’s political community, one should make the case that state activity or law is important for securing what common natural reason grasps as common goods. Moreover, if there are comparably effective alternatives, if law or state activity is not particularly effective for securing such goods, or if such state acts are disproportionately burdensome on other members of the community, then supporting such state activity or law would be unjustified (Christopher Tollefsen makes a similar point here). Of course, appeal to common goods will not do away with disagreements about what policies secure them, or even about their exact nature (people disagree about questions of justice); and for this reason, such policy disagreements must ultimately be settled by the political process. Nonetheless, reliance on the political process in such situations is itself justified with reference to common goods (e.g., peace and order). Political legitimacy thus ultimately depends on appeal to these goods and on a plausible case being made for the importance of state activity for promoting and securing them.
The emergent social pact of a community, both implicit and explicit, can also make further qualifications about what kind of political proposal is legitimate; for instance, there has emerged from a long historical process of religious conflict a social norm (in countries like the United States) that the state should be impartial to the various religious confessions, even if some (weak) partiality might arguably serve the common good and even be consistent with rights of conscience. This social norm—the exact contours of which have always been disputed—has often covered more than the written law and has even shaped our interpretation of it. It would be arguably legal, for instance, for US states to restore their religious establishments (which several maintained for decades after the ratification of the Constitution), but most Americans would consider such efforts uncivil, unfair, a violation of an implicit social norm. This is not the case where history has preserved a toothless establishment, such as England. That is not to say such social norms are the final say, but like the law itself, which can be amended or even sometimes ignored (from a moral standpoint), such social norms have normative force.
Recognized limits on the scope of law and politics were not new even in the thirteenth century. Aquinas’s political and legal theory was already more attentive to these limits than Aristotle’s. Although Aquinas affirms that one function of law is to make people virtuous, he admits that law should extend only to prevent the “most grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained” (e.g., murder and theft). Similarly, the law should not prescribe every virtue, but “only in regard to those that are ordainable to the common good—either immediately, as when certain things are done directly for the common good—or mediately […] whereby the citizens are directed in the upholding of the common good of justice and peace.” Nonetheless, Aquinas’s arguments for the limits on the scope of the law were based on prudential concerns; here I defend principled limits based on demands of general justice.
Although postliberals are “allergic” to discussion of political freedom, the above analysis highlights how it is itself a common good, serving both to secure justice and other aspects of the common good. Unfortunately, when postliberals appeal to the common good, it almost always involves giving the state more power. But as we have seen, the state is not the only agent for securing the common good, and excessive state activity may even threaten it. A close analysis of what we owe each other within a political community highlights this fact. I have treated this matter at a very abstract level, without consideration of the effective importance of a rule of law, democratic governance, the separation of power, and checks and balances—political principles of limited government and ideals of modern constitutional democracies. But this analysis serves as a foundation for better appreciating the achievement of those arrangements. Seen from this perspective, the limited government of the United States looks rather attractive in comparison to the muscular states favored by postliberals.
Endnotes
[1] Aquinas distinguishes between legal duties and moral duties, and he counts virtues related to justice that do not give rise to legal duties among the “potential parts” of justice. I prefer to simply speak of general justice in a more general sense.
[2] I treat elsewhere the issue of delegated versus transmitted authority. Unlike many of the scholastics, I believe a delegation theory is more plausible.
