Justice Is a Social Construct

If you’ve spent more than five seconds on the internet, chances are good you have heard of the concept of a social construct. Most notably, social justice warriors tout the idea that race or gender are social constructs. This discredits the idea that social constructs actually exist because race and gender are both biologically determined and determinant. There are distinct attributes that separate the races, and there are specific sex organs that separate the genders. These are scientific facts and the debate of which are outside the scope of this article. However, what I would like to discuss is the fact that justice is a social construct.

A social construct is defined as a jointly constructed understanding of the world that forms the basis for shared assumptions about reality. What then is justice? A cursory dictionary search will produce several definitions, but the only descriptive and meaningful definition in this context is, the administering of deserved punishment or reward. There are several questions that we must now ask. What is deserved punishment? Who decides what is deserved? How should it be administered? Who is responsible for administering the justice? We will see in the answering of these questions we must come to a shared and chosen agreement between ourselves as to what is just; we must construct in a social setting what we believe justice to be.

What is deserved punishment?

I think we would agree that the punishment must fit the crime. Surely taking off someone’s hand for stealing a loaf of bread is a bit extreme, however often the practice may have taken place in more barbarous civilizations in the Middle East and Africa. Letting the crime go unpunished also seems a bit too lenient. There is also the possibility that the owner of the bread may take mercy on the thief if he or she is starving and may let him or her have the loaf as an act of benevolence. We see then that there are many conditions that go into determining a just punishment. We must consider the crime, the intent and motivations of the perpetrator, and the wishes of the aggrieved. Surely it would not be just to throw a man in prison for stealing a loaf of bread when the baker that baked it would rather the man eat the stolen bread than go to jail. Also, it would not be just to let a rapist go free simply because he justifies his rape on the grounds of a lack of sex. We must also consider if killing violent offenders is something we consider just. Is jail the correct option, or is indentured servitude a better solution? This leads us to our next question.

Who decides what is deserved?

As we discussed earlier, who is aggrieved by the crime must have a say in what is deserved, at least in so far as if punishment should be administered. A grieving mother may want to see the murderer of her children flayed openly in the public square, however, the rest of the members of society may find that punishment to be entirely too severe, or at the least something not worth displaying publicly. Who else should be involved? The elders of the society who have seen the outcomes of crimes and punishments administered in the past? Perhaps scholars who have researched the best applications of different punishments? What about a jury of your peers? These are questions that must be answered and agreed upon by every member of society, otherwise no system of justice will be recognized as just.

How should justice be administered and who administers it?

Think of your current legal system. In America we have police, attorneys, prosecutors, judges, juries, and a prison system. We have determined that police should apprehend offenders, prosecutors should bring charges against them, a judge ensures their trial is fair, an attorney defends them, and a jury judges them. Sentencing is also often carried out by the judge, and then the administration of that punishment is carried out by the prison system. Is this the best solution possible? How do we even decide what the best solution ought to be? This leads to our final, and yet unasked question.

What is the purpose of justice?

The concept of justice is often represented as a blindfolded woman with a scale in one hand and a sword in the other. The blindfold assures there is no bias in the evaluation of wrongdoing; only the facts are heard. The sword ensures that the society and the system are defended and the capacity to mete out punishment is adequate. Finally, the scale is there not to ensure the punishment fits the crime, but to attempt to restore the value that was destroyed by the initial crime. If you steal my car, I not only lose the value of my car, but also the convenience of being able to transport myself wherever whenever. This may include my job, so I may lose wages. It may include my girlfriend’s house, so I may lose pleasure. It may include the movies, so I may lose leisure. Returning my car to me does not rebalance the scale. I am owed the value of my lost wages, pleasure, and leisure, plus the depreciation on the car that occurred while it was not in my possession. Replacing my stolen car with a new one may rebalance the scale, depending on the value of my old car. However, if it does not, I am owed some form of additional compensation. Locking a man in prison will most likely not regain me my lost value from the crime, so the punishment may not be just.

So what is the purpose of justice? The purpose of justice is to restore the value that was lost during the original crime. We as individuals have to decide the value of things in our lives, and we as members of society must agree upon a system that is best suited to restore that value when it is taken from us by acts of aggression and violence. We must agree that all values are subjective, and that any system we devise will be inadequate in restoring that value, regardless of how detailed or intricate our system is. This is why we must strive to live in a society without crime in the first place. It is only through such a pursuit that we can flourish, and it is why I believe in anarchy so much. We must be free to determine our own systems and beliefs by which we choose to live our lives because otherwise we will never be able to construct a system of justice, let alone a just system for life.

All Rights Are Positive Rights

If you’re not familiar with rights theory, two classifications of rights are said to exist, positive and negative. Negative claim rights came first, and they are called negative claim rights because they are considered to exist in absentia of other people. These include the right to life, liberty, and property mentioned in the Declaration of Independence, and the Bill of Rights in the Constitution of the United States. These are considered negative claim rights because they do not require other people in order for them to exist. Positive claim rights, on the other hand, do require other people to be involved. These include, but are not limited to the right to healthcare, education, social security, and any other promised free handout a government wants to sell you. I cannot get healthcare without a doctor to treat me, and I cannot get educated (in theory) without an educator to teach me. This is why they are positive claim rights. In this article, I am going to argue that all rights are inherently positive claim rights. They are all derived from a positivist approach to legal theory.

There are two theories of law, natural law and positivism. Natural law is the idea that our conduct as humans is governed by an observable, objective set of moral principles. Murder, rape, theft, and deception are all considered crimes under natural law because they have an observable victim that has been harmed. These laws are believed to exist as gravity exists; they are a condition of reality. Legal positivism, on the other hand, believes that laws are socially constructed, are relative to the society that creates them, and are established by best practices within a given society. Under such a legal system, you have the right to free speech if and only if the law allows it. The only rights you have are those granted to you by the government.

At this point it would make sense to connect natural law to negative rights, and positivism to positive rights, and that is typically what has happened throughout most of our public discourse on rights and legal theory. However, rights do not exist. They are not a tangible part of reality. My water bottle and this computer are tangible. My physical body is tangible. Rights are not. They are beliefs held in your head, and sometimes they are written on paper. No matter their presentation, whether in your head or on paper, they require recognition from other people in order to be real. It is not a right that is observed when someone does not steal from you. You are witnessing a choice being made by an individual person. Choices are real, and actions are observable. However, the reasons people have for their choices are always up for debate. In any case, your right to life and your right to property are every bit as dependent upon the choices and actions of others as are your rights to healthcare and education.

Due to the fact that negative claim rights are as dependent upon the actions of others as are positive claim rights, all rights must be characterized as positive claim rights. Natural law does not require the recognition of rights, only the presentation of an aggrieved party. Also, anarchy does not require the recognition of rights, only the recognition of reality, part of which is self-ownership, something I discuss here.

Now, the argument can be made that natural law depends upon the actions and choices of others to recognize the suffering of the aggrieved party and act in a way to ameliorate that suffering. It can also be argued that anarchy demands that others recognize self-ownership. While both arguments are valid, natural law and anarchy require only that members in society live in accordance with observable reality. It is easy to observe when someone is the victim of a crime, and it is easy to observe self-ownership. In fact, one is using self-ownership when they engage in the act of observing. Determining when something is wrong, in the sense that it does not comport with reality or violates self-ownership, is like observing the weather; you need only pay attention. I would like to note here that punishments for crimes, justice, vengeance, and retribution are all positive acts and thus require a positivist framework within which to operate. These are concepts outside the scope of this discussion.

I do not argue from a rights perspective because rights do not exist, and the argument over rights is like arguing about whether or not a hypothetical rain storm will extinguish the fire that is currently consuming your house. So much time, effort, thought, and language goes into arguing and debating rights that in so doing we miss the very obvious wrongs being perpetrated by our governments and the people that run them. Taxation is theft. War is murder. Citizenship is slavery. Until we, as individuals, start recognizing reality for what it truly is, we are doomed to live a dimmed existence of our potential selves.