Short Take: Co-Opting “Social Justice” Into The Rule of Law?

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.

14 comments on “Short Take: Co-Opting “Social Justice” Into The Rule of Law?

  1. Norahc

    “Social justice is the antithesis of due process, the demand that outcomes must reflect assumptions about equality without regard to how they are achieved.”

    Social justice does appear to have twisted “all men are created equal” into “all persons must end up equal”.

    1. SHG Post author

      The assumption is that because everyone is equal, every unequal outcome must, by definition, reflect inequality. Because equality is the overarching goal, skip the step about how to get there and go straight for the result. But aside from the opportunity/outcome problem, there is a far deeper problem that makes it untenable: since benefits are a zero sum game (believing women means that black accuseds must be wrongfully convicted), it requires a victim hierarchy to determine who wins when both sides lack privilege (who must always lose, because privilege) and yet someone’s status demands they prevail over the other lesser marginalized person.

      This ain’t “wonderful.” This ain’t equality either.

      1. Shadow of a Doubt

        The first part of this paragraph is some of the best plain English explaining of why “social justice” as a goal is wrong I have ever seen. Hope you don’t mind if I use it.

    2. B. McLeod

      The current version of “social justice” has nothing to do with “equality,” but simply seeks to reshuffle the winners and losers.

  2. Richard Kopf

    SHG,

    Perhaps unintentionally Brother Kay has illustrated through his incoherence why judges and lawyers should do law and not justice. Lawyers and judges know the law. Philosophers know justice. Law and justice are two distinct things. I would even go so far as to say that the two are often mutually exclusive. For those of us called to the bar and bench, we would do well to stay in our own lane. We are insufficiently intelligent (or trained) to cross into the other path. When we do, we make a muddle of things.

    All the best.

    RGK

    1. SHG Post author

      Law is hard. Justice is a lot easier. Is it too late for me to change my name to Søren Aabye Kierkegaard?

      1. Richard Kopf

        SHG,

        No, it is never too late.

        I would, however, suggest that a better fit is Diogenes the Cynic. After all, he spent his time looking for an honest man.

        All the best.

        RGK

  3. Rojas

    “Any child can understand the need for social justice But to understand why we need due process—for that you need to be an adult.”

  4. Morgan O.

    Justice is a strange word. It’s a noun, but when you apply any kind of adjective it immediately means the opposite of its original meaning.

  5. Dan

    If “social justice” actually had anything to do with justice, then its connection to due process would not be so misguided. Due process, properly implemented, does tend to produce just results–or, at least, more just results than when it is denied. As you’ve mentioned several times, these principles are not sui generis rules that we made up just to complicate the legal process–they’re there because they’re important. They’re there because they facilitate the search for truth, without which there can be no justice.

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