SUMMARY AND IMPLICATIONS
The role of various forms of power is seen very differently by those with the constrained and the unconstrained visions. The amassing of military power by a peaceful nation is dangerously counterproductive, according to the unconstrained vision, and absolutely essential to preserve peace, according to the constrained vision. These opposing views are as common today as they were in the eighteenth century- and as highly correlated with their proponents' respective positions on unrelated domestic social issues involving income and wealth differences or crime and punishment. Even issues of more recent vintage, such as abortion or Third World development, divide controversialists along lines reflecting different underlying assumptions that go back for centuries.
The constrained vision of human intellectual and moral capabilities relies less on articulated rationality to convince and more on incentives to influence behavior. This vision sees unprovoked aggression- whether by criminals or nations- as something to be systemically deterred, rather than something that can be rooted out by better understanding conveyed to those lacking it, or by defusing emotions which might otherwise override judgment. Neither criminals, war-makers, nor Third World peoples are seen as requiring, or likely to derive much benefit from, the articulated rationality of the intellectually or morally advanced segments of society. Nor is the law seen as benefiting from their fresh insights being substituted for the implicit wisdom of systemically evolved procedures.
By contrast, the unconstrained vision necessarily sees a larger gap between current human capabilities and the ultimate intellectual and moral potential of the species. It is consistent with, if not entailed by, this vision that the existing intellectual and moral variance between the ordinary person and those who have traveled further along the road toward larger human potentialities would be greater than in the constrained vision. This imposes on the elites a duty to seek more influence on the course of events, whether in law, international relations, or Third World development. In this context, deference to less advanced popular beliefs or ancient institutions and traditions would be an almost fetishistic abdication of responsibility. This is especially so where resort to force, or the threat of force, is involved. Proposals that they observe such deference often evokes amazement, scorn, or even a questioning of the honesty of those who make such proposals-which are indeed irrational, given the assumptions of the unconstrained vision. But those who make such proposals are often operating under entirely different assumptions.
Contemporary controversies revolving around differences in the very conception of power often go back to centuries-old differences in the visions of man and social causation. Whenever one individual or group can change the behavior of another, then the former has power over the latter, as power is conceived by J. K. Galbraith, Gunnar Myrdal, Laurence Tribe, or other modern thinkers in the tradition of the unconstrained vision. Those with the constrained vision reject this conception of power, when behavioral changes are made in response to a quid pro quo, and conceive of power as the ability to reduce someone's pre-existing options. The result may be the same in both cases, whether achieved by threat or reward, but the constrained vision is not a vision of results but of processes.
If one conceives it to be within the capabilities of man to control the exercise of power and to limit it to socially desirable results, as those with the unconstrained vision do, then it is arbitrary to do so only with power defined as the ability to reduce pre-existing options. But if monitoring the desirability of myriad individual results is in general beyond the capabilities of any individual or council, as those with the constrained vision assume it to be, then efforts to produce social benefits must focus on general processes and on power restrictions-meaning restricting the ability of some to reduce the options of others.
Both visions see the abuses of power, whether direct force or in other social forms. They disagree widely and fundamentally on the means of controlling it.
Chapter 8
Visions of Justice
dam Smith and John Rawls each made justice the prime virtue of a society, but they said it in such different senses as to mean nearly opposite things. Moreover, the differences between them were not due simply to their very different conceptions of what constituted justice-a process in Smith, a result in Rawls-but more fundamentally were due to how they wanted the principle of justice applied. According to Rawls:
Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice ... does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many... The only thing that permits us to acquiesce in an erroneous theory is the lack of a better one; analogously, an injustice is tolerable only when it is necessary to avoid an even greater injustice. Being first virtues of human activities, truth and justice are uncompromising.1
Rawlsian justice is not to be traded off, even for the existence of an otherwise well-run society. Others with a similar vision speak of rights based on justice as "trumps" which invariably prevail over other social considerations.2 There are different values of trumps, so that one must give way to another, but all trumps prevail over all non-trumps. The "superior claims of justice" have been part of the unconstrained vision as far back as William Godwin.3 Those with this vision may differ among themselves as to the specifics of justice, as there are differences within the tradition of the constrained vision as well, and they differ especially as to the extent to which government is the instrumentality of enforcing these moral principles.4 But what is consistent in the unconstrained vision is that (1) justice is categorically paramount and that (2) rights derived from justice inhere in individuals and for individuals.
A very different view of justice is found in the constrained vision of Adam Smith, who said, "society cannot subsist unless the laws of justice are tolerably observed."5 Smith asserted:
Society may subsist, though not in the most comfortable state, without beneficence; but the prevalence of injustice must utterly destroy it.6
Justice thus derived its importance from the need to preserve society- not society its raison d'etre from the need to produce justice. Moreover, justice need only be "tolerably observed" to serve its social function of maintaining order, and that overriding need for social order was due to the limitations of man. According to Smith:
Men, though naturally sympathetic, feel so little for another, with whom they have no particular connection, in comparison to what they feel for themselves; the misery of one, who is merely their fellow-creature, is of so little importance to them in comparison even of a small convenience of their own; they have it so much in their power to hurt him, and may have so many temptations to do so, that if this principle [justice] did not stand up within them and overawe them into a respect for his innocence, they would, like wild beasts, be at all times ready to fly upon him; and a man would enter an assembly of men as he enters a den of lions.?
Here the elements of Smith's constrained vision stand out in stark contrast to those of the unconstrained vision. While man, as conceived by Smith, had natural sympathy- that was the cornerstone of the moral code elaborated in his Theory of Moral Sentiments- this sympathy and man's reason serve to provide mankind with general principles for society, rather than with direct restraints on individual behavior. Where derived and refined principles of justice serve as an individual restraint, it is not because of sympathy and reason but because the social inculcation of justice serves to "overawe" the individual. Because society "cannot subsist among those who are at all times ready to hurt and injure one another,"8 justice is- instrumentallysociety's prime virtue.
The instrumental nature of justice, and its
consequent subordination at times to other social imperatives, is a recurring theme in the constrained vision- and is anathema to the unconstrained vision. Implicit in this subordination of justice to order in the constrained vision is the conclusion that man will suffer more by the breakdown of order- even an unjust order- than by some injustices. Those with the constrained vision accept this trade-off because the inherent limitations of man, as they conceive man, leave no solution to hope for. In this vision of incremental trade-offs, the categorical concept of "trumps" is completely inapplicable.
LEGAL JUSTICE
The Constrained Vision
Oliver Wendell Holmes illustrated the way in which the inherent limitations of human beings were central to the concept of legal justice, as seen in the constrained vision:
The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. It does not attempt to see men as God sees them.... If, for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of heaven but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account .9
Holmes thus established two standards of justiceand deliberately chose the lower standard as the proper one for human beings to administer, given the inherent limitations of man. It was a conscious trade-off of justice for the interest of the society as a whole. Holmes said, "justice to the individual is rightly outweighed by the larger interests on the other side of the scales."10 He opposed "confounding morality with law."11 Law existed to preserve society. Criminal justice, for example, was primarily concerned with deterring crime, not with finely adjusting punishments to the individual:
Public policy sacrifices the individual to the general good. It is desirable that the burden of all should be equal, but it is still more desirable to put an end to robbery and murder.12
Once again, Holmes rejected the higher standard of justice-the "desirable" tailoring of punishment to the individual-in favor of the lower standard of justice. Implicit in putting aside the solution in favor of the trade-off was the assumption that the solution was beyond human capability-a point already made explicitly in his discussion of civil liability, where the courts of men were said to have to operate differently from the courts of heaven. Even when the civil law prescribed the forcible sterilization of the mentally incompetent, to prevent their breeding more incompetents, Holmes on the Supreme Court sustained the law in the name of "the public welfare," declaring: "Three generations of imbeciles are enough."13
Law, as Holmes conceived it, was not the deliberate logical creation of great minds, but rather represented the evolved and codified experience of vast numbers of people:
The life of the law has not been logic: it has been experience. ... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.14
Holmes did not deny that there was logic in law or that great minds had in fact contributed to its development, nor did he fatalistically accept whatever law existed. He in fact became famous as "the great dissenter" on the Supreme Court. "I venerate the law," he said, but "one may criticise even what one reveres."15 What Holmes denied was that law had historically evolved by the application of logic, though there was a general logic in its propositions, arising systemically. He recognized "the countless number of great intellects that have spent themselves in making some addition or improvement" in the law- "the greatest of which," he said, "is trifling when compared to the mighty whole."16 Here, as in other areas of the constrained vision, it is the experience of the many rather than the brilliance of the few that is to be relied upon, and historical evolution rather than excogitated rationality that is paramount.
The social benefits of known law, as a framework within which the many could make their own decisions, were weighed in a similar fashion by the celebrated English legal theorist of the eighteenth century, William Blackstone. The trade-off between individual justice and the social benefits of certainty was particularly striking within the British legal tradition, where "courts of equity" were institutionally distinguished from "courts of law"- the former to make exceptional adjustments for the sake of individual justice. Blackstone said:
Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to positive law. And on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, tho' hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would be almost as many rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.17
The parallel of such reasoning with other conclusions in the tradition of the constrained vision was not merely coincidental. Blackstone's vision of man was that "his reason is corrupt, and his understanding full of ignorance and error." To Blackstone, "the frailty, the imperfection and the blindness of human reason"18 made it an unreliable instrument for the direct creation of law. Reason was necessary but not sufficient. When Blackstone said, "what is not reason is not law," he added immediately:
Not that the particular reason for every rule in law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded. And it has been an antient observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.19
In short, like Holmes and like the constrained vision in general, Blackstone found evolved systemic rationality superior to explicitly excogitated individual rationality. Blackstone thus became the great expositor and advocate of the British common law- "doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage."20 Moreover, in interpreting the written law, Blackstone urged following the original intentions of those who wrote the law, seeking to "interpret the will of the legislator" by "exploring his intentions at the time when the law was made," taking his words "in their usual and most known signification," establishing their meaning "from the context" if necessary, and only as a last resort "when the words are dubious" trying to carry out the intent or spirit of the law.21
Like Holmes later in the law, or like his contemporary Burke in politics, Blackstone did not advocate an unchanging law or society. What distinguished his position was the mode of change and the caution about change:
The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust: for though their reason be not obvious at first view, yet we owe such deference to former times as not to suppose they acted wholly without consideration.22
Though Blackstone and Holmes were the most famous exponents of the constrained vision in the laws of their respective countries, their views were not unique, not confined to legal theorists. Other exponents of the constrained vision in other fields expressed similar views when they mentioned the law. To Burke, for example, jurisprudence "with all its defects, redundancies, and errors, is the collected reason of the ages."23 To Hayek, the law "does not owe its structure to the design of either judges or legisl
ators."24 Adam Smith saw "the sacred and necessary law of retaliation" for murder as "antecedent to all reflections upon the utility of punishment,"2S and natural resentment in general as "the safeguard of justice and the security of innocence."26 With all, law evolved as an expression of the natural feelings and experiences of human beings in general, not the articulated rationality of intellectual or moral leaders. Moreover, human nature was not considered to vary fundamentally over time. Holmes assumed that "the earliest barbarian . . . had a good many of the same feelings and passions as ourselves."27 Here too his assumptions were typical of the kind of equality conceived by the constrained vision.
The Unconstrained Vision
The unconstrained vision has likewise been consistent over the centuries in reaching opposite conclusions on justice and the law. Although the argument has been made that modern psychological and sociological thinking enables courts today to individualize punishments to the criminal rather than the crime, the argument for individualizing the application of law to the criminal goes back at least as far as the eighteenth century, and has been as much a part of the unconstrained vision as the opposite view has been part of the opposite vision.
A Conflict of Visions: Ideological Origins of Political Struggles Page 16
