Part of the Philosophy Papers series
The goals of justice and liberty are ultimately irreconcilable. These goals are ultimately irreconcilable for three reasons: justice obligates behaviour while liberty seeks to rid interference; justice focuses on the collective while liberty focuses on the individual; lastly, the goals of justice and liberty come from different approaches to understanding society. These contrasting goals make them ultimately irreconcilable.
By liberty, I mean the ability to do as one pleases without interference, except in self-protection (Mill, Ryan and Mill, 2006). Liberty bases itself on the importance of an individual’s self-determination. Liberty is then intrinsically tied to the idea of individualism as the freedom of the individual is of utmost importance. It also entails a lack of interference to do as one pleases, which means that restrictions on doing what one pleases go against the concept of liberty.
By justice, I mean “the perpetual and constant will to render to each one his right” (Aquinas, Shapcote, Mortensen and Alarcón, 2012). Justice bases itself upon entitled and obligated behaviour. If an individual has a right, they are entitled to some behaviour/service/item, which then obligates another to render them that right. This regulation of behaviour must be constant and perpetual to make each right a lasting condition in justice. Justice also focuses on the behaviours within a collective body. These can be broken up into what an individual is obligated to render to the whole community, what individuals are obligated to render to each other, and what the community is obligated to render to each individual (Aquinas, Shapcote, Mortensen and Alarcón, 2012).
Firstly, justice obligates behaviour, while liberty seeks to rid interference. I will argue this point by considering a hypothetical where a community sees their elderly as a burden. This community collectively agreed that all elderly people had to take their own life at a certain age. This warped and disturbing understanding of justice obligates that these elderly people make a difficult choice. There may be some who understand the rationality of why this is being done and freely carry it out. Others, while extremely reluctant, may carry it out because of a sense of obligation. Lastly, others may have refused and were later executed. Would we say that these elderly people were exercising liberty?
It seems clear that we would say those who were reluctant were not exercising liberty because their actions were out of a sense of obligation and not freely willed. We would also say that those who refused, while exercising a certain amount of liberty through refusing, ultimately lost their liberty by being executed. However, what of those who willingly carried out the act? There seems to be a prima facie case that they exercise liberty because they are doing what they please. However, we must first ask why they are carrying this out freely. I argue that because there was an obligation to do a particular behaviour, it was not entirely free. It may not have been what they pleased if that obligation was not first there. Therefore, the obligation itself places an interference on one’s liberty regardless of one’s cooperation. I argue that this can extrapolate to all matters of justice, where the very fact of having obligated behaviour restricts one’s liberty. Liberty is thus doing what one pleases without any sense of obligation.
It can be objected that this hypothetical is very extreme, and there is not a restriction of liberty in much more mild examples. However, I believe that even mild obligations can still limit an individual’s liberty. Slavoj Žižek gives a great example of a father that convinces his son to visit his grandmother (Žižek, 2015). The father could say to the son that he has to go and see her in a demanding way. Here this obligation restricts the child’s liberty, but the child still has the freedom to internally rebel against the father. The other way the father could convince his son is through appealing to the son’s empathy. In this case, not only is the obligation still restricting the child’s liberty, but a further obligation has been placed on the son to want to go and see his grandmother, which restricts his freedom to internally rebel. Here, I agree with Žižek that even these milder forms of obligation restrict one’s liberty. Therefore, the goals of liberty and justice are irreconcilable.
Second, the object of liberty, the individual and justice, the rights of the collective, are incompatible. Liberty focuses on the individual doing as he pleases without the interference of others. On the other hand, justice focuses on a collective and the rights each party owes to the other. The object of these goals, being the individual and the collective, differs to such a degree that we start to neglect the other if we focus on one. As an example, take the idea of property distribution: If we approach this concept from the perspective of liberty, the focus is on doing what one wills with their property. That could result in the hoarding of property, or theft of other’s property, or the owner’s free distribution to others. However, from the perspective of justice, the collective must be considered. Justice distributes property depending on each individual’s rights and may take from some to give to others. The difference between these objects means that one approach will have to be prioritised over the other.
An objection to this point is that liberty being either a human or civil right would make liberty an object of justice. If someone has a right to liberty, then justice’s goals would become reconcilable with those of liberty. To respond to this objection, we must first consider whether liberty falls under natural law or positive law. Firstly, I argue that there are no such things as natural rights. While civil rights have a natural enforcer being the state, human rights have no natural enforcer. Thus, to many who are stateless and do not receive the rights of the country they live in, the idea of human rights becomes some hopeless idealism or mere hypocrisy because their host country will not enforce them (Arendt, 1962). However, it has been objected that the individual is the natural enforcer of their human rights and not the government since the right lies within the individual (Paine, 1791). Yet, there is no way of the individual knowing what natural rights they can enforce. Natural rights are a modern phenomenon that have no corresponding concept in any language until only recently. Claiming that certain human rights are self-evident truths means that either most of human history did not know about them, or they do not exist (MacIntyre, 2012). Another objection is that the United Nations (UN) enforces human rights as per the Universal Declaration of Human Rights (The United Nations, 1948). However, ‘human rights’ in this sense is a misnomer. They are not natural rights but civil rights by an international government. This does not invalidate these ‘human rights’ but merely states that the basis of these rights is on a civil authority rather than something man has by nature.
Therefore, we must conclude that liberty would have to be a civil right. However, such a right creates a paradox. If liberty is an enforceable right in a country, it must logically include liberty from any justice system, since as we discussed, any obligation restricts one’s liberty. This right would be unenforceable because any justice system that enforces it would go against the right itself. If we assume that we mean liberty in a specific sense, like freedom of speech then we need to consider other contradictions. Freedom of Speech as a civil right would still have to be qualified in excluding defamation, perjury, and incitement to protect other rights such as self-protection. Therefore, these freedoms are merely licenced freedoms and not true liberty since restricting positive freedoms would also be contrary to liberty. This shows that the objects of liberty and justice are irreconcilable.
Lastly, the philosophical foundations of the goals of justice and liberty are incompatible. Justice views that man, to survive, has a sense of belonging and, by avoiding isolation, is obligated to co-operate with others (Fromm, 2001). He cannot be atomised from his relations to others. This grouping of people then organises towards a common good and are thus called societies (Crean and Fimister, 2020). These societies, to co-operate towards their common good, need to regulate behaviour through positive law. This positive law forms the beginning of justice. However, liberty views that man naturally is in a state of perfect freedom to do what he wants within the law of nature without considering the will of any other. He is also in a natural state of equality where all men share an equal claim to jurisdiction, without submission or subjugation (Locke and Laslett, 1988). Then some men, through either inheritance or conquest, established their authority over others. This situation created a struggle between authority and liberty, which may have been seen as necessary, but it was dangerous too. This struggle led the governed to limit this authority’s power over them so that they may exercise liberty (Mill, Ryan and Mill, 2006).
These approaches to society come from irreconcilable origins. Justice comes from the view that society ought to co-operate together towards common goods. On the other hand, liberty views an inherent antagonism between those who rule and their subjects. An objection to this point is that many legal systems seem to balance both justice and liberty. If justice and liberty can be balanced within a system, then they can be reconcilable. The problem with this argument is that it conflates the ability to be balanced with reconcilability. For example, say one partner wishes to save all the couple’s money in a bank account that cannot be spent. The other wishes to spend all the money in the bank account and not leave any money saved. While these ideas are incompatible, there can be a balance between them if each partner is willing to compromise. Likewise, with many of the legal systems that find a balance between justice and liberty, we find there is usually a significant compromise on the side of liberty to become subordinated to justice. This relationship is not one of compatibility but one of subordination. This divide between cooperation and antagonism makes the goals of liberty and justice irreconcilable.
In conclusion, it has been demonstrated that the goals of justice and liberty are not reconcilable for three reasons. First, that justice obligates behaviour while liberty tries to rid interference, responding to the objection that mild obligations do not restrict liberty. Second, that the objects of liberty and justice are not compatible, answering the objection of considering liberty as a right. Last, the philosophical foundations of the goals of liberty and justice are incompatible, critiquing the objection that liberty and justice can be balanced. Therefore, instead of focusing on the goals of justice and liberty in isolation, we should instead understand how we can be free within a just society.
Aquinas, T., Shapcote, L., Mortensen, J. and Alarcón, E., 2012. Summa Theologiae Secunda Secundae, 1-91. Lander, Wyoming: Aquinas Institute for the Study of Sacred Doctrine. pp.535-537
Arendt, H., 1962. The Origins of Totalitarianism. 7th ed. Cleveland, Ohio: The World Publishing Company. pp.267-269
Crean, T. and Fimister, A., 2020. Integralism. Leck, Germany: Editiones Scholasticae. pp.11-13
Deneen, P., 2019. Why liberalism failed. New Haven: Yale University Press. p.3
Fromm, E., 2001. Escape from freedom. Abingdon: Routledge. pp.9-11
Locke, J. and Laslett, P., 1988. Two treatises of government. Cambridge: Cambridge University Press. p.106, 141
MacIntyre, A., 2012. After virtue. Notre Dame, Ind.: University of Notre Dame Press. p.69
Mill, J., Ryan, A. and Mill, J., 2006. On liberty. London: Penguin. pp.6, 16.
Paine, T., 1791. Rights of Man: Being an Answer to Mr. Burke’s Attack on the French Revolution. 2nd ed. London: J.S. Jordan.
The United Nations. 1948. Universal Declaration of Human Rights.
Žižek, S., 2015. Slavoj Žižek: Political Correctness Is a More Dangerous Form of Totalitarianism. [online] Big Think. Available at: <https://bigthink.com/videos/slavoj-zizek-political-correctness-is-fake> [Accessed 20 May 2021].
 Legal justice  Communitive Justice  Distributive Justice  Being the Individual and the collective  Or Human Rights (these terms will be used interchangeably)  As a negative freedom  As a positive freedom