Natural law versus social justice: The permanent conflict of modern democracy

Fred Hutchison, RenewAmerica analyst

Originally published March 31, 2007

The central philosophical problem of modern democracy is the clash between natural law theory and social justice theory. Beginning with the era of the French and Scottish Enlightenment, natural law theory was the natural starting place for conservative ideas in a democracy. Social justice theory was the starting point for liberal ideas in a democracy.

The thesis of this essay is that natural law theory is irreconcilable with social justice theory. If the thesis is true, liberals and conservatives will never agree.

Both the American Revolution and the French Revolution were kindled by the violation by a monarchy of human rights. However, the American colonists reckoned that their rights came from natural law. They were outraged by the arbitrary powers of the king and parliament. Natural law rights are placed in peril when the state gains arbitrary power.

The French rebels mainly appealed to social justice. The agony of the peasants during a depression and famine was contrasted with the conspicuous waste of the court and the luxurious whimsy of Marie Antoinette.

The American Revolution was "conservative" in that it was founded upon natural law. The French Revolution was "liberal" in that it was founded upon social justice. If the American Revolution is the true revolution of history, then the French Revolution must be a disreputable anti-revolution. The opposite is also true. If the French Revolution is the true model, the American Revolution is a false one.

The French Revolution was followed by four revolutions during the following century, each involving the overthrow of the established government. America had a civil war based upon the proposition that natural law rights belong to slaves. The overthrow of the government was avoided.

The federal union has endured in freedom, stability, and prosperity for over two centuries, making it the oldest democracy on earth. History demonstrates that a natural law system promotes stability, continuity, and prosperity better than a social justice system. But which system is better at making men free?

The nature of freedom

Michael Polanyi (1891-1976) is most famous for his thesis that all knowledge is personal and that the idea of scientific neutrality and objectivity is a myth. However, Polanyi was a polymath who studied and wrote about many fields, and the theme that ties the collected works of his life together was his search for a philosophical basis for freedom. Polanyi was, in his heart of hearts, more of a political philosopher than a scientist.

Polanyi realized that in order for human freedom to prevail: 1) Men must be respected as individual personal beings, and 2) There must be a transcendent realm of universal truth and universal justice that constrains the individual and can curb the tendency of ruling groups towards the arbitrary use of power.

Human freedom can only exist in political and social communities that value the individual. Democracy cannot secure individual freedom unless large majorities of people care about the individual. Socialistic states, caste systems, and closed societies like the Arab community in the Middle East value people only in their tribal, sectarian, community, and family relationships. Such societies despise the free individual, persecute their mavericks, and suppress human freedom.

A strong belief in a transcendent realm can frustrate the control freaks and commissars in our midst. That is precisely why closed systems build walls to block out the transcendent realm. The idols of the group become men's gods, and the social codes of the group become their moral law. The transcendent God and the universal moral law are blocked out. When men in power are not constrained by the fear of God or belief in a universal moral law, they tend to use power in an arbitrary manner to suppress freedom.

When individuals govern themselves because they believe in a universal moral law, they require less supervision by the state. Such persons can enjoy a measure of freedom and order. Therefore, the belief in a transcendent realm is indispensable to human freedom.

Are Polanyi's two principles of freedom compatible with natural law, or social justice? Would Polanyi have been a conservative or a liberal?

The grounds of American freedom

Natural law is compatible with Polanyi's principles of freedom. The Declaration of Independence proclaimed that men have rights based in natural law (or the laws of nature and nature's God). This was a metaphysical appeal to the realm of created nature, which is universal, and hence, is transcendent to the individual and transcendent to the society. The inclusion of the phrase "all men are created equal" has an explicit meaning in natural law theory. All men are individual persons fully endowed by nature and nature's God with all the attributes of humanity. No class or race of men fails to possess all of these created attributes, and therefore none may be ruled in an arbitrary way. All men possess the same natural rights endowed by sources that are transcendent to the system of ruler and ruled. Therefore, the ruler who curtails these rights is a tyrant and an unjust man. All legitimate rule must he hedged about by laws and restrictions that protect human rights.

The entitlement to freedom must not be abridged by governors or rulers, because human nature requires freedom. The Creator designed men to need a measure of freedom to exercise the faculties he gave them. A man denied freedom is crippled and wounded.

Social justice confused with natural law

Social justice theory, which is sometimes confused with natural law, is not compatible with Polanyi's principles of freedom.

The natural law definition of equality involves a metaphysical equality of humanness – that is to say, equality in terms of what it means to be human. A father and a young son are equal in terms of possessing the nature of human beings. However, they are not equal in psychological, intellectual, and moral development, or in authority, experience, and wealth – nor are they necessarily equal in talent, determination, or character. In like manner, the citizenry is wildly diverse in wisdom, virtue, merit, and talent. However, they are all equal in possessing a human nature and are entitled to equal justice under the law and subject to equal moral and legal accountability for their conduct.

The Founding Fathers thought of equality in metaphysical terms and had no concept of the equality of merits, ability, or just deserts. Contrary to popular opinion, equality of opportunity is not a right based in natural law (as desirable an end as it may be). Nature and transcendent justice make no claim that life be fair on egalitarian terms. However, the citizen is justified in expecting his government not to arbitrarily interfere with those opportunities that he gathers to himself through his wits and industry, or the opportunities offered to him though providential good fortune. The ups and downs of personal fortune are the lot of those who dare to breath the invigorating air of a free society.

Liberals confuse the idea of equality with an incompatible mixture of social justice ideas and natural law ideas. Social justice theorists go far beyond the idea of equal dignity as human beings and equal justice under law. They greatly inflate the idea of equality to include an entitlement to an equal share in the external goods of society – independent of abilities, achievements, and merits. In doing so, they violate Polanyi's principles of freedom and introduce disorder into society.

The American compromise

The "moderate" American social justice compromise is the declaration of the right of the poor to freedom from "poverty," a "living wage," a minimum wage, a "decent" education, and economic "security." As we shall see, all these social justice ideas are arbitrary and are not objectively definable.

The American tax system is a perfect example of the political compromise between a social justice society and an opportunity society based on natural law. If federal, state, and local taxes are added together, the tax burden as a percentage of personal income is steeply graduated from low income households up to the median income. Above the median income, the percentage burden flattens out. Therefore, we have a hybrid system of a graduated, social justice tax on the poorer half of the citizens, and a flat tax, or opportunity society and natural law tax, on the richer half of the citizens.

This compromise is politically savvy because it mollifies both the social justice (liberal) voters and the opportunity society (conservative) voters, and those who want a balance between the two things (moderate voters). However, it is important to understand that social justice and natural law are philosophically incompatible.

Social justice determinations are arbitrary and work contrary to reason and freedom. Natural law is founded on the objectively determined and unchanging rights that work in favor of reason and freedom. Natural law validates Polanyi's two principles of freedom. Social justice works contrary to Polanyi's principles.

Discovery of rights versus invention of rights

Natural law must be discovered through a rational examination of the enduring nature of man and what man needs in order to flourish. God designed man and gave him rights according to that design. Rights based on natural law are permanent and readily definable. Such rights are an objective and steady foundation for a rational government of laws and not men. Natural law promotes freedom by keeping arbitrary power out of the hands of government.

In contrast, social justice "rights" are subjectively invented and cannot be discovered from nature. For this reason, social justice is arbitrary and irrational in essence, no matter how it is rationalized. Social justice ideas are in continual flux and are unsteady as a foundation for law.

Social justice ideas emerge subjectively in elite liberal groups in a manner similar to how pagan myths emerge from the shamans of primitive tribes. The intellect of the shaman is quieted during mystical reveries as deep feelings and magical thinking well up from his subconscious realm. Freedom is unknown to primitive tribes, due to the arbitrary government of witch doctors who rule through fear and arbitrary taboos.

In like manner, the rule of the liberal elites would subject us all to arbitrary, irrational, politically-correct codes of speech, thought, and behavior. Like the shamans, liberals attempt to enforce their taboos through intimidation. The rule of shamans requires tribal group-think. This is why the ultimate triumph of social justice theory must signal the end of personal freedom.

Social justice theorists are unable to provide rational grounds for social justice theory, because their theories are based upon magical thinking. The society of liberal shamans works from a romantic, subjective, intuitive, emotional, and political basis. Like an exclusive priesthood of shamans, elite liberal circles expect the rest of us to submit to their decrees concerning social justice. Liberal elitists prefer that the rest of us do not ask too many questions, because they cannot provide rational explanations for why a particular social condition is inherently unjust. All they can say without equivocation is that a situation is unjust because they feel it to be so.

A ship without a rudder

An economics professor of mine quoted English economist Nicholas Kaldor, who said, "A graduated income tax is like a ship at sea without a rudder." Immediately after this quote, my professor advocated a graduated income tax! He said, "I feel that it is right!" He then turned round with a crooked grin and said, "Now that is a hell of a thing to say!" He had no argument for a graduated income tax beyond a mere feeling. He freely admitted that as an academic, he was in an embarrassing position.

My professor was the rare honest man in academia who admits that rationality contradicts his policy. He took a perverse pleasure in spilling the beans about the emotional nature of the academic club of shamans. Rationality is their proud public pose, but their policy is based in their feelings. Our academics are the fading remnants of the Romantic Movement that tried to replace rationality with feelings.

The liberal priesthood does not want the rest us to know that they are shamans peddling magical thinking. Therefore, they erect a veneer of rationality to win our respect. Underneath the veneer is an arbitrary and emotional commitment to social justice. To the extent that we are guided by coteries of liberal shamans who are blown about by the winds of their shifting emotions, our society will be, in Kaldor's phrase, a ship at sea without a rudder.

Marxist roots of modern social justice theory

Social justice theory is an odd ball of yarn with strands of many colors. While social justice theory has its origins in the French Enlightenment, the version of social justice that resonates with political liberals today has its origins in Marxism.

I once signed up for a philosophy class about justice. The professor turned out to be a Marxist. He made no mention of the metaphysical basis of justice derived from Plato, Aristotle, Aquinas, Locke, Montesquieu, and Madison. For him, the sole measurement of injustice was the unequal distribution of wealth. His arbitrary definition of justice drove out metaphysics (first principles and the nature of reality, being, becoming, and knowing). He threw out the baby of rationality with the bath water of metaphysics.

Marxists believe that the capitalists unjustly exploit the workers, and therefore they advocate a revolution of the proletariat (industrial workers) against the bourgeoisie (propertied class in the city). The revolution leads to a socialist dictatorship that purportedly will usher in a utopia where man will be perfected and social justice will prevail. These messianic dreams will be realized through socialist, totalitarian government with arbitrary powers.

Social justice, as defined by political leaders, is to be implemented through the seizure of power and the unrestrained use of arbitrary power. Unfortunately, the social outcomes of arbitrary power are unpredictable because those with such power are unrestrained and unaccountable. There is no predicting what a man with arbitrary power will do. In historical fact, none of the communist regimes has produced the utopia that Marxist theorists promised.

By definition, arbitrary power is power broken free from the guidance of reason, morality, and law, and is subject to the fluctuating feelings, impulses, and will of those with power. Stalin was whimsical and unpredictable about who he condemned to death each day. His regime was the very image of a ship at sea without a rudder – but it was a death ship.

Liberalism is ideologically the first cousin of Marxism and the second cousin of Stalinism. Revolutionaries, socialists, totalitarians, and utopians constantly speak of social justice. The term also crops up in the rhetoric of liberal Democrats. It is the inspiration for their social engineering programs. Social-engineering by Democrats is benign in motivation, but it is every bit as arbitrary as Stalin was, and just as much of a ship at sea without a rudder.

Christian social justice?

As liberal ideas seeped into Christianity, misguided liberal theologians have argued that social justice is a tradition of the church. Ministries of compassion are a tradition of the church, but social justice theory is not.

Clever liberal theologians make the case that social justice theory emerged from natural law theory that goes back to Saint Thomas Aquinas (1225-1274). But this is logically impossible, because natural law theory contradicts social justice theory. The social justice theory of the revolutionary Marxist priests is intellectually bankrupt. The same is true of the upstart, half-baked Radical Orthodoxy movement that is infatuated with Marxism.

Negative rights and positive rights

Natural law rights protect the individual against arbitrary powers of government. Such rights are purely negative in the sense that they pertain to what government may not do. The just ruler must not carelessly or arbitrarily use power and deprive the individual of his natural rights.

There are no positive natural law rights, such as the right to an education, the right to be free from poverty, or the right to an equal share in the national income. Positive rights compel a government to create social programs to change the circumstances of particular classes of citizens. Such programs always advance social justice rights and are always hostile to natural law rights. The two kinds of rights are irreconcilable.

If the government arbitrarily blocked a person from earning a living according to his wits, abilities, and resources, he could complain of an injustice. His rights by natural law have been violated because the government prevented him from making full use of the inner human faculties that nature and nature's God gave him. If the government decided to appropriate and redistribute his property to others, he could rightly protest the arbitrary use of power and the injustice to him as an individual. Natural law theory would support him and condemn the unjust government.

In contrast, a social justice theorist might vindicate the government who confiscated the property and condemn the owner of the property. The theorist might denounce the selfishness of the owner who withheld his property instead of offering it for the benefit of the commonweal. The theorist might praise the government for serving social justice by confiscating the property and distributing it to those with greater need.

Need creates entitlement in the eyes of social justice theorists. A fatal weakness of social justice theory is that no one can agree upon how to define need, how to define entitlement, or how to identify the unjust withholding of private property to the detriment of the commonweal.

Social justice theory always violates the natural law rights of some classes of citizens and arbitrarily favors other classes of citizens. In contrast, natural law never is arbitrary and never plays favorites.

The politicization of social justice

A second fatal weakness of social justice theory is that social justice is always politicized in its practical applications. Social justice theory sanctions the re-engineering of society according to the arbitrary preferences of those with power. Since social justice is arbitrary in definition and application and no two theorists can agree upon how to measure social injustice, those with political power can hire the social justice theorists who best suit their biases and preferences.

Such projects run roughshod over the individual and show contempt for those who create wealth through their creativity and enterprise. This is why social justice regimes like the Soviet Union result in shared poverty. In contrast, natural law societies like America protect creativity, enterprise, and property and generate great wealth. Even though the wealth is unequally shared, some whom we regard as poor are richer than the average Russian.

Social engineering projects in some countries allow the goods of the affluent to be plundered. To counteract public outrage, social justice politicians send up a rhetorical firestorm against the "malefactors of great wealth." The propaganda is intended to make the victims of the plunder feel guilty for possessing wealth and make the beneficiaries of the plunder angry that the wealth has been denied to them so long. Social justice propaganda persuades the beneficiaries of plunder that the wealth of other men belongs to them by right.

Social justice theory rationalizes covetousness, theft, and bitterness. This anti-Christian ideology turns eternal moral principles upside down.

One can justify and celebrate poor relief as a ministry of compassion, which is the natural function of the church, not the state. Such ministries produce neither guilt from the givers nor haughty demands of entitlement from the receivers. Giving in true compassion is redemptive and can bring forgiveness and healing from bitterness.

In contrast, social justice concepts and politicized "compassion" produce a dysfunctional politics of guilt and bitterness. As a young man, I refused to join the Democratic Party because I did not want to be part of the "bitterness party" or the party of intellectual confusion.

Legal muddles of social justice

Correcting "social injustice" by a messianic government is an intellectual muddle. In the DeRolf case (2002), the Ohio Supreme Court fancied that if certain school systems spent more money per pupil than did other school systems, the rights and entitlements of children in the poorer school districts were violated. They creatively misinterpreted a vague phrase in the state constitution in order to imply new rights without defining them. The court expected the legislature to take bold action on their murky mandate. The feel-good outcomes-based thinking of the court made them naive to the difficulty of legislating arbitrary law.

The court demanded that spending on education be increased, but could not say how much it should be increased. The legislature increased spending. The court said it was not enough, but could not explain why it was not enough. The legislature asked "how much?" and the court answered "more!" After another spending increase, the court cried "still more." The woozy world of arbitrary jurisprudence owes much of its confusion to social justice theory.

The court's assertion of intellectual mush produced a constitutional crisis in Ohio. At various moments, the governor and the legislature threatened the court with draconian action for making a decision outside its jurisdiction and for inventing arbitrary law out of whole cloth. The court seriously considered taking legal action against the governor and the legislature. However, each time such threats were made, the parties involved looked into the whirlwind of a constitutional crisis and backed off.

The moral of the story is that the arbitrary invention of new rights based upon social justice theory is destabilizing to our government and legal system. All law founded on social justice theory is arbitrary law, and arbitrary law obscures logical and moral distinctions. Arbitrary law is a threat to reason, political freedom, and social stability.

Polanyi and social justice

Social justice programs of government violate both of the principles that are essential to freedom according to Polanyi. Social justice ideas do not respect the individual because they deal with man in the collective. Conditions are defined to be unjust based on comparisons of social groups. Liberals do not hesitate to infringe upon the individual when social justice issues are at stake. In contrast, natural law defines justice according to the rights of the individual man.

Social justice is hostile to the universal moral law and the laws of nature that are transcendent to society. As previously explained, social justice is sometimes contradictory to the moral law. Since social justice is always relative to the group, there is no appeal to a higher transcendent authority concerning the unjust treatment of individuals by social justice commissars. This is prima facie evidence that the claim by liberal Christians that social justice is compatible with Christianity is false.

Conclusion

Our best defense of freedom is human rights based upon natural law and protected by constitutional law. The Declaration of Independence lays out the natural law basis of our rights. The Bill of Rights enumerates these rights and establishes them as the foundation of constitutional law. The limitation of powers, separation of powers, and the checks and balances in the Constitution are designed to prevent the federal government from getting arbitrary power, so that our rights are secure.

Therefore, the Declaration of Independence guides our interpretation of the Constitution. Alan Keyes calls this the "Declarationist" school of constitutional law.

---

© Fred Hutchison