The Mantle of Justice.

• Author: Martin, Adam G.
• Position: F.A. Hayek's argument - Critical essay

FA. Hayek famously argues that the concept of social justice is incoherent (1976, chap. 9). His argument is inseparable from his theory of spontaneous order. Spontaneous orders are distinct from planned organizations in that they lack central direction and have no coherent set of goals (Hayek 1973, chap. 2). Individuals and individual business firms can act toward a given end. Justice applies to the conduct of these individuals and organizations. If the word social, when appended to justice, means "interpersonal," it is redundant (Hayek 1967, 242). Justice is always social in this sense. But the "catallaxy," or market order, is a process of individuals and groups who frequently have incompatible goals and motivations interacting with one another. If the word social refers to the outcomes of this sort of spontaneous process, social justice becomes meaningless.

Because economic distributions are not products of human design, they can be neither just nor unjust. Justice and injustice apply to conduct. Any given distribution of economic rewards or resources is the result of a multitude of both just and unjust actions. No one controls the distribution of rewards or resources in a market economy. So claiming that a distribution is unjust is problematic because no identifiable individual or group can be said to have caused the purportedly unjust outcome. The concept of social justice "does not belong to the category of error but to that of nonsense, like the term 'a moral stone'" (Hayek 1976, 78).

Hayek's attempt to cut the legs out from under social justice talk has spectacularly failed. Academic institutions have become centers of social justice talk through curricula and other student services. Harvard, for example, offers a graduate certificate in social justice. In reaction to some of these trends, social justice warrior has become a pejorative reference to activists concerned with inequality. Over time, however, social justice has come to mean more than merely fairness in economic distributions. Modern social justice talk is broader, addressing issues of race, gender, and sexuality and discussing forms of social inequality beyond distributions of wealth, income, and other resources (see Martin 2017).

We might refer to this phenomenon as "justice creep": the language of justice is applied to an ever-expanding universe of moral evaluations. Table 1 reports a list of adjectives appended to the noun justice, each of which returns at least five thousand hits on Google Scholar. (1) The term social justice is still king, with more than 1.9 million hits in the scholarly literature. And a cursory examination of any of this literature makes it clear that these other justices are typically treated as species of social justice: they focus on the outcomes of social systems rather than on the justice of individual conduct. So although Hayek's critique has failed to substantially shift scholarly opinion, if he is right, his claims are more relevant than ever.

Hayek's rejection of social justice has also received substantial pushback or qualification in recent years from friendly thinkers who (at least nominally) embrace his concept of spontaneous order. In my reading of this literature, these responses take three primary forms:

* Planned Spontaneity: Spontaneous orders can be created and modified intentionally and so are subject to complaints about injustice.

* Specific Complaints: A theory of social justice can ground complaints about particular rules within a broader system of rules.

* Mere Semantics: Social justice is a normative standard all its own and need not have any relation to justice as Hayek conceives of it.

This essay explores these challenges to Hayek's argument in order to determine which are successful. Although I do provide examples, I focus on the types of claims rather than on specific texts for two main reasons. First, there are common themes across different arguments. Second, there is no apparent agreement among Hayek's friendly critics about the substance of social justice. What matters--and what makes Hayek still relevant--is that social justice concerns the outcomes of spontaneous processes. For each of these responses, I ask (a) whether the response gets Hayek's view of spontaneous order correct and (b) whether it successfully identifies a source of injustice. Ultimately, I defend the contemporary relevance of Hayek's arguments, in part on the grounds he endorses but also in part on Smithian grounds about the nature of justice.

Planned Spontaneity

In the preface to The Mirage of Social Justice, volume 2 of Law, Legislation, and Liberty--the very book in which Hayek mounts his full assault on social justice--Hayek states suggestively that his own thought has some affinity with that of John Rawls (1976, xiii). The Planned Spontaneity response takes this ball and runs with it. This response accepts that central planning of economic activity is undesirable or impossible or both. But the institutions that govern economic activity can be designed. Institutions include the rules that constitute markets such as property rights and contract law. Social justice is an evaluative standard for judging the design of such institutions. Do these institutions, in their current form, adhere to principles of justice?

John Tomasi articulates this view most direcdy. He refers to spontaneous order as a "strategy for social construction" (2012, 155). Because individual rules can be constructed, so can "whole systems of rules" (158, emphasis added). Tomasi goes so far as to claim that all political societies manifest this sort of intentionality in the design of their institutions (153). In doing so, he attempts to fully wed Hayek to Rawls, who famously claims that "society is a cooperative venture for mutual advantage" (1971,4). Economists typically ask whether such rules are efficient. But it is also perfectly coherent to ask whether the rules of such a venture are fair or unfair, just or unjust. Social justice is the justice of the system of rules itself.

This response misunderstands the relationship between society and state. The state is an organization--or a network of organizations--that exists within society (Hayek 1973, 46). It does not sit outside the social order, passing edicts from above. Political institutions are nested within and entangled with social, cultural, and economic institutions that influence how they operate. Hayek distinguishes bottom-up law from top-down legislation to make precisely this point (1973, chap. 4). To be sure, the state is a "big player" in society that often has a decisive impact...