Law and Justice

The Great Leveler

For video version of this essay, click here

A chain-smoking former journalist named Moore somehow came to be working in the Communications Department of the Department of Justice in Ottawa. The Justice Building, where the Federal government’s lawyers were located on Parliament Hill, was distinguished by its high steep copper roof and sandstone exterior. Unlike Moore’s former profession of investigative journalist, he had at this point in his career settled into a kind of semi-retirement, by accepting a position as head of the communication unit at Justice, charged with its communication’s rag, Inter Pares and the internal and external communiques which were bread and butter of PR. He was compelled this day, as part of his duties, to attend yet another meeting of Justice senior counsel, gurus and mandarins, this time presided over by the Deputy minister himself. Rather than debating substantive policies, law reform, or the great political and legal issues of the early 1980s, the government lawyers, senior counsel and bureaucrats were doing their usual quibbling, ad nauseam, on the precise esoteric lingo to use in yet another mission statement setting out, or trying to set out, in painful technocratic and managerial detail the values or so called values of the Department (as if “Justice” wasn’t itself a sufficient value for these types). As the draft took shape, the lawyers somehow managed to leave out the bigger picture entirely, with language devolving into increasingly low levels of minutiae. After several hours of this, Moore had had enough. He slamed his fist onto the table and yelled,

“It’s the Department of Justice, dammit! Not the Department of Law.”

As Moore and many a realist have understood, Law and Justice are not the same thing. The law is the vehicle. Justice is the ostensible goal, end point, or at least until modern times, that was the assumption. In the UK, a Department of Justice only came into being and took that name fairly recently, in 2007. This is not to say courts didn’t deliver impecably just decisions long before that, as far back as Lord Mansfield directed the jury to find the stolen jewels taken by the young and sympathetic accused were in fact valued at less than five pounds, knowing full well the penalty for theft over five pounds was death. The jury happily obliged. And there have been just decisions long before that.

In the modern Western state, naming the hub of government’s management of the law, policy, prosecution, constitutional and interstate affairs and oversight of the courts, the “Department of Justice” may also serve a public relations or marketting purpose. The Department of War was renamed the Department of Defence in many countries in the West after WWII, to give the management of the forever wars into which liberal governments have been engaged, a softer sell. PR aside, Department of Law would probably be a more accurate name.

In this first of a two part series on law and justice, I will look at the political and social forces that have effectively toppled “justice” as the apex value of the legal system and replaced it with social goals that do not regard perfect justice as a necessary or even desirable outcome of a legal system. I will look a how so called “social justice” and the fight for equality have left the legal systems in Western countries remarkably tolerant of injustice, provided the desired social goals are pursued. The lofty utopean goals are — of course —never met, which is why the cycle is perpetual. If there is injustice, it is mere collateral damage.

When Lord Dennis Lloyd wrote about “Law and Justice” in the early 60s, in his book, the “Idea of Law”, he describes what he thought a society in which law and justice will thrive as follows:

… [L]aw needs to be related to the system of values recognized in the particular community in which it operates. Such a system of values may and in fact does differ from place to place and from period to period. Though it may be impossible, as the positivist is disposed to think, to demonstrate the absolute superiority of any particular system over all others, actual or possible, nevertheless if a community believes that its values are the highest attainable it will clearly judge the existing law in accordance with those values and try to amend or adapt it where it falls short of them.

It may be said, however, that this is all very well as an approximate description of how law tends to function, at least in enlightened communities which enjoy a fair degree of harmony as to their basic aims, but there is a more general purpose that the law everywhere aims, or should aim, at achieving, and that is ‘justice’. The idea of law, it may be urged, has always been associated with the idea of justice, and if it is agreed that this represents the ultimate goal to which the law should strive, then we can arrive at the purpose of law more directly, without becoming entangled in the value of particular societies with all their conflicts and uncertainties. For, after all, are not those values themselves, so far as they seek to be embodied in the laws of the community, merely an individual expression of the general striving towards justice ifself.¹

Lloyd echoes the assumption of many a thinker (John Adams being one) that a functioning legal system that produces “justice” more often that not requires common values and morality. But does anyone agree anymore on the ultimate goals of the law? It may have been agreed in the 60s (or still imagined), but in 2024, is it possible to say any longer what the ultimate goal of the law is? In the multicultural cities of the West, is it possible to find anything resembling a “fair degree of harmony as to … basic aims?” And what of the ascendency of power theories of law like Critical Legal Studies or the Marxist theory of law, which permeates the bloodstream of the intelligentia, bureaucracies, professional associations and the judiciary itself? Once there has been a shattering of common values and morality, law is downgraded to a battle for control of the levers of power, or the ship’s wheel, which ship now seems to spend more of its time circling than going anywhere in particular. A biproduct of this war for control is a fair percentage of the population that, perhaps out of a heighted need for security, has come to fully support governments that impose “harmony” where none exists, by the suppression of dissent, the destruction of political enemies through selective application of law, and select prosecutions and penalties. Where are you likely to find justice here?

As I have said before and will say again, even in the most dysfunctional of legal systems, shattered by disagreements on the most basic values, and provided the particular issue or dispute is devoid of political content, there are just decision all the time, and that will continue, as long as there is a true court system. But what about those more and more frequent cases where law confronts politics, race, gender, ideology and hotbutton global policies?

We may begin with the proposition that “justice” is a moral value. In the Natural law way of thinking, it may be seen as one of the essential “goods”. Plato in his Republic places justice at the summit of the moral world. This wasn’t difficult to see in the homegenious city states of ancient Greece. The famous dialogue in the Republic led by Socrates would undoubtedly have gone a very different direction were the setting one of the Woke cities of the West today. The ending for Socrates however would undoubtedly have been the same, although given the state of our cities, he may have been happy with exile.

In the Republic, Plato sets out to explain what is meant by justice.² For Plato, there is an inevitable coincidence between a just city, ruled by a just man, and whether the city is made up of just citizens. If a city is unjust, run by a tyrant who acts only in his own interests, there will be no just men living in that city. That is just the way it goes and that may well explain a lot about the tolerance for bad governments in the modern cities of the West. Plato’s conception of justice is essentially ‘minding your own business’; that “every thing or person… has its proper sphere and that justice means conforming to that sphere.”³

Plato’s conception of justice is based on the aristocratic idea that every person is inherently adapted to some specific function and that if he departs from that function he is guilty of injustice.”⁴ Of course, that would certainly be true if those without the intelligence or natural skill to be doctors, are made doctors by some law, or the swords and shields of the army are made by incompetent political appointees of the state. All this will seem very unjust to the doctor’s patients or soldiers on the battlefield who swords and shields fall to pieces. Lloyd adds:

This somewhat resembles the feudal idea of the three orders of society, priests, warriors and labourers, each with their own self-contained function…⁵

Plato goes beyond medieval feudalism in that his philosopher kings would be selected not by birth, but by ability and then specially educated. A striking difference from modernity is that the ancient Greek conception of justice centres around the evident inequality of people. With the Enlightenment and great ideological revolutions of the 18th and 19th centuries, “justice” was overtaken by a new supreme value, that of “equality”. This as we will see had the effect of turning what constitutes an unjust state on its head.

If the example of the Terror during the French Revolution were not enough, we now have many more examples of the negative effects of imposing equality as a supreme social value on civic life. Given the good press “equality” continues to get, the outcomes it is producing will seem to many counterintuitive. Equality is supposed to be nice, compassionate, liberating. It is anything but. Alexis de Tocqueville noted early on:

Equality has meant … the destruction of the estates, guilds, classes, and other associations which had, by virtue of the very inequality they conferred on the population, represented limits on the power of the King….. The foremost or indeed the sole condition required in order to succeed in centralizing the supreme power in a democratic community is to love equality, or to get men to believe you love it. Thus, the science of despotism, which was once so complex, is simplified, and reduced, as it were to a single principle.⁶

Walter Scheidel in his scholarly work, the Great Leveller,⁷ concludes that human history and even pre-history is the story of inequality, which seems to be capable of alternation only under primative nomatic conditions (in which there isn’t much in material wealth to separate the chieftan from his lowliest tribeman) and events of cataclismic violence:

For thousands of years, civilization did not lend itself to peaveful equalization. Across a wide range of societies and different levels of development, stability farored economic inequality. This was as true of Pharaonic Egypt as it was of Victorian England, as true of the Roman Empire as of the United States. Violent shocks were of paramount importance in disrupting the established order, in compressing the distribution of income and wealth, in narrowing the gap between rich and poor. Throughout recorded history, the most powerful leveling invariably resulted from the most powerful shocks. Four different kinds of violent ruptures have flattened inequality: mass mobilization warfare, transformative revolution, state failure, and lethal pandemic. I call these the Four Horsemen of Leveling…⁸

If Scheibel is correct, and I see no reason to doubt his conclusions, equality can only be imposed through violence: political, or otherwise, or through calamity. We see at the moment the attempt to impose it through a trans-national progressive revolution, although the end result of the gross incompentence and religious pigheadedness among its adherents is that the result is more likely to be equalization achieved through the failed state. The fact the population is reduced to equal shares of dog meat is probably not the rainbow equality originally envisaged. The Tower of Babel may be a better analogy. As an aside, it is interesting that the Covid “ pandemic” has NOT produced greated equalization, but quite the opposite, greater “inequality” with vast amounts of wealth redirectly to the most wealthy, which would suggest the Covid “pandemic” should be renamed, as it did not in fact have the characteristics of a true levelling pandemic, if it was a pandemic at all.

It would follow then that despotism and equality have a close kinship. If indeed as the revolutionaries thought and continue to think, that justice is simply the rich and powerful, including such evil and nebulous entities as the patriarchy, getting what they want, equality will have to be imposed. The corrective to “justice” is what we call today “social justice” — which imposes the interests of the so-called victim classes over the previous ruling classes, professions, business types, mass corporations and working classes alike.

What exactly is, “social justice”? Pursuing the impossible will necessarily produce a kind of perpetual social struggle. This does appear to be what is occurring where “social justice” becomes a governing philosophy. This pattern is evidence that “social justice” is indeed a mythical creature and cannot be achieved, at least as progressives envisage it. What is lost in this struggle is any attempt to re-examine or inquire anew, concerning that core question asked by Plato in the Republic, what is justice? The external criteria to assess the conduct of the ruler, in our case, progressive rule, is forgotten or rather shelved in favour of the maxim that the ends justify the means. If the leveling policies, like “DEI” (diversity, equity and inclusion) produce unfairness… well…, as the political attache to the partisans in the film Dr. Zhivago, was fond of saying, “It doesn’t matter.”

In Plato’s Republic, Polemarchus takes up the conventional view that justice is giving a man his due. Although Socrates is critical of this definition, pointing out that giving someone his due isn’t always just; you could give the example of resisting giving a lunatic the weapons you owe him. Such exceptions aside, Palemarchus’s definition isn’t all that bad. Thrasymachus however takes what will sound today to be a very modern position, and a realistic one, that justice is in effect the rich and powerful getting what they want. Professor Scott Masson of Tindale University makes the interesting point that advocates of social justice today are in effect siding with Thrasymachus (see my video for Professor’s Masson’s thinking on this).

As “equality” or levelling replaces justice, you can begin to understand state policies that seem terribly unjust, at least to some of us, but are permitted to exist and spread as they have a fundamentally levelling effect. Two recent example illustrate the point.

The dominant religion in the West remains Christianity, even in an atenuated, customary or non-practicing form. Thus, as Christian churches are burnt in places like Canada and France, there is little outcry and little if any attempt to investigate or prosecute. Why is that? The reason is simple and to be found in equality theory and social justice. As the social objective is to see the dominant oppressor religion put in its place, church burning is both payback for past alleged wrongs, but also serves to allow other creeds to move in and become more vocal. Supportive of the destruction, like a Trudeau, can barely hide their glee, noting that it is all “understandable”.

Another good example is the migrant crisis, or rather “program”. A migrant to a nation in the West should in an ideal Platonic world occupy the lowest rank in society, if part of the society at all. He has contributed nothing, and would historically be happy and indeed could expect no more than a cot in a military barracks and repatriation when the political situation back home stabilizes. You can probably count the Syrians returning to their native land on one hand. Indeed, what we see across the West is immediate access to housing, interest free loans, loaded debit cars, free cell phones, free medical care, all looking very permanent. How is this fair? The media and politicians may point to international agreements all they want, but that is just window dressing. There is much more going on here.

First, Canadians, whose families have been in Canada for generations, have undoubtedly paid into the system, in labour, taxes, military service and the women who have by their labour, contributed young citizens to the nation. This gives them, to a progressive egalitarian way of thinking, an “unfair” advantage, especially since progressives continually challenge the legitimacy of original occupation. To the trans-national progressive way of thinking, there needs to be leveling, and this is what migrant policies do, in a spectacular way. Justice? That has nothing to do with it.

Law and Justice is replaced by “law and equality” and “law and injustice”, but that’s okay. If an injustice occurs, well that’s “understandable” because political factors such as historical injustice and systemic failures of the system call for reallocations. Social justice is very much a perverse form of distributive justice in the Aristotelian sense.

We turn now to formal justice and equality. Long before substantive equality was enshrined as the ultimate value in the West, in Bills of Rights, Charters Declarations of the Rights of Man and Human Rights codes, we had the idea of equal treatment. This is an ancient notion that, likes should be treated alike. The basic idea of formal justice is that the law is “supposed to be applied equally in all situations and to all persons to which it relates without fear or favour, to rich and poor, to powerful and humble alike. A law which is applied without discrimination in this way may be regarded as the embodiment of justice.”⁹

It has always been recognized that minors and the mentally incompetent should probably not be treated equally. In all decency, they do well to have their rights curtailed or their affairs managed by court order until they reach the age of discretion, or regain their senses. This isn’t unfair. It is an application of the principle of treating likes, alike, but at a more particular level. No one should deny the purpose is fairness or justice, although I am sure today there will be some objectors out there to any limits on the tights or minors or the insane as this is a violation of perfect equality and may have to be undone, whatever the consequences. It also presents obstacles to the ideology that gender can be declared at any age. Likewise, depriving a non-citizen or a prisoner of the vote did not used to be controversial. It is very much so today.

But if police and prosecutors choose only to investigate and prosecute offenders depending on the race of the perpetrator or the creed of the victim, we are no longer seeing equal treatment. US Supreme Court Justice Robert Jackson warned about prosecutorial discretion in his paper, the “Federal Prosecutor” back in 1940:

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated … [he] can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a change to be heard.¹⁰

The term “anarcho-terrorism” was first used I believe by writer Sam Francis. It is an apt term. I use it to mean the selective application of laws based on political criteria. In no way does this satisfy the criteria of equal treatment or formal justice. But it may well be an aspect of “social justice” in the eyes of progressives, a necessary tool to fight enemies of equality. Formal equality is largely seen today as an empty vessel, compared to the real powerhouse of the equality movement: Equality of Outcome.

Another tool in the arsenal of equality of outcome is lawfare, selective prosecution of political enemies as mentioned by Jackson with the purpose of harassment and financial ruin. Often these cases are simply dropped before trial. The punishment is the prosecution and the costs of legal counsel, delay, shaming and social isolation. It can be very effective. Likely, as the judiciary is severed from its ancient traditions and absorbed into the executive, we see the courts with increasing frequency ignore longstanding practice and custom in prosecution and sentencing, and proceeding with a wink from the government, to a swift trial and the imposition of very stiff penalties. This is the fate of those considered Class A political enemies. Here we see a breakdown of the notional division of powers, with the judiciary serving to advance the interests of the executive, which directives are communicated, often publicly, through mass media.

Perhaps one of the more troubling effects of “social justice” and equality theory is the breakdown of what would until recently have been seen as a natural response to crime in the population, and more particularly the response of a parent to the death of a child or vice versa. There is nothing more natural and ancient than demands by family members for justice (or vendetta) in the case in assault, injury or wrongful death inflicted on a family member. What we see more and more frequently today in the First World is the death of natural affection, a remarkable neutralization of these senses, the relegation of justice for the victim through the agency of the family to a lower rank, with parents for example advocating the interests of the perpetrator in the name of equality and social justice. This is obviously a powerful social phenomenon, of almost religious intensity.

As Michael Rectenwald has written:

Once beliefs are unconstrained by the object world … the possibility for assuming a pretense of infallibility becomes almost irresistible, especially when the requisite power is available to support such beliefs. In fact, given its willy-nilly determination of truth and reality on the basis of beliefs alone, philosophical and social idealism [for which post-modernism is infamous] necessarily becomes dogmatic, authoritarian, anti-rational, and effectively religious.¹¹

1. D. Lloyd, “Idea of Law” (Penguin, 1985) at 116 (first published in 1964)

2. Plato, “The Republic” (Penguin, 2007)

3. “Idea of Law” supra at 119

4. supra at 118

5. supra

6. “The Sociological Tradition” (Routledge, 2017) at 121, 124

7. W. Scheidel, “The Great Leveler: Violence and the History of Inequality from the Stone Age to the Twenty-First Century (Princeton University Press, 2017)

8. supra at 6

9. “Idea of law”, supra at 119

10. “The Federal Prosecutor” Robert A. Jackson (Paper, April 1, 1940)

11. M. Rectenwald, Chronicle Magazine (September 2014) at p. 12