Trying as hard as I could, it was still difficult to make sense of this:
As for social justice, it’s a wonderful thing. But remember that people have very different versions of what social justice looks like.
Many people in this room probably have a vision of social justice that includes less inequality, less racism, less Islamophobia, less homophobia, less transphobia, and better lives for indigenous people. But if you are a Trump supporter, social justice might also include, say, fewer refugees, and less affirmative action.
In life, you have to be careful what you wish for. If you decide that social justice trumps the rule of law, you may be horrified to see how that principle is applied by those whose views you find to be regressive.
Jonathan Kay writes to explain the virtues of due process, how it has served the goals of protecting the poor and downtrodden. But in doing so, his use of “social justice,” a “wonderful thing,” is so vague and meaningless as to encompass any outcome one prefers. Is this just another effort at taking a phrase that means whatever Humpty Dumpty decides and turning it back on its warriors?
Yet in the long run, I would argue, the rule of law—if faithfully applied, without favour or corruption—can build the social trust that is the true bedrock of social justice. In a healthy society, due process is the concession that competing groups extend to one another. We say to one another: “Yes, I disagree with you. But no matter our disagreements, this thing is something I cannot take away from you.”
In some cases, the impetus toward social justice can damage the rule of law by inciting an attitude of tribalism. If society is depicted as a pastiche of warring groups, in which powerful groups systematically exploit the disadvantaged, then this will encourage everyone to circle the wagons around their own tribe—and even to circumvent the rule of law on behalf of their own tribe if they can get away with it.
Whether this is just astounding ignorance or a manipulative lie is unclear, but either way, it’s fundamentally wrong. There are winners and losers in law, and when you favor the losers, no amount of sappy adjectives will “build the social trust that is the true bedrock of social justice,” whatever the hell that’s supposed to mean.
Is it too difficult to explain to the Law Society of British Columbia, to whom Kay gave this inspirational speech, that due process is a necessary goal in itself, not because it guarantees that your beloved outcome will prevail but because it offers the only means by which both sides get a fair hearing, regardless of outcome?
In such societies, loyalty to tribe is imagined to be more important than adherence to due process—especially among those tribes deemed to be disadvantaged. That is not a recipe for social trust.
If you’re speaking to a class of third-graders, you use arguments, words, that they’re capable of understanding. But these are lawyers. Are they that stupid that they can’t be told that sometimes the disadvantaged will lose? Are they that clueless that they can’t grasp that sometimes the woman who cries rape is a liar, and sometimes she’s right, and the best, if imperfect, means to distinguish between the two is due process?
The best I can make of this insipid, flowery nonsense is that Kay is trying to steal the vague phrase “social justice” from progressives and co-opt it to his own purpose, that being the promotion of the rule of law, of due process, as the best means of achieving it. As much as I share his view that due process is critical to the law, the notion of proffering the bizarrely false notion that it will somehow assure social justice is no less wrong than any other lie.
Social justice is the antithesis of due process, the demand that outcomes must reflect assumptions about equality without regard to how they are achieved. The question must never be whether due process produced a popular outcome, as if one side’s fantasies are so invariably better than the other side’s, but whether a fundamentally fair process for both sides is a virtue in itself.
Due process won’t guarantee you the outcome you want. That’s its feature, not its flaw. Suggesting otherwise is a lie, and lies you like because they produce the outcome you want are still lies. There is nothing about due process that favors social justice. Or any other end game. That’s why it matters.