In April 2015 I was asked to present a paper on ‘Towards A Just Society 2017’ to the West Cork Bar Association which, to my considerable surprise, was very well received by an audience encompassing a number of judges. I was then later that year asked to re-present it to the Irish Association of Law Teachers. After that presentation a prominent legal academic came up to me indicating how much he had enjoyed it and that I should publish it. There was then a remarkable exchange where he took me aside and said you are saying what we are all thinking but not saying to which my incredulous response was, “why not?”.
The “why not” is of course in ever restricted economic times driven by a culture of compliance, keeping the head down and not rocking the boat. This craveness is now also becoming a feature of academic life which should be the last holdout for sophisticated criticism. Such clichéd (non)-motivations as not rocking the boat I hear now on a daily basis so here is my response. Torpedo the boat. We need to build a new one. This is the guts of what I said. It is an elaboration on an earlier piece in Village on the Rule of Law. (March 2016).
The most important book of political philosophy since Karl Marx is John Rawls’ ‘A Theory of Justice’. The Rawlsean idea is that people are placed in an original position behind a veil of ignorance where they do not know their personal characteristics or the state of the civil society they are in but they know all about politics and economics. In the light of this veil of ignorance how would they choose a just society?
Rawls suggests they would first choose the maximum number of liberties, as they would be risk averse and would not like to end up in a society where civil liberties are not adequately protected – in case of course their rights were oppressed. Second, that they would choose the difference principle, some measure of the redistribution of wealth in favour of the disadvantaged members of the community.
After all as you might end up yourself poor in sub-Saharan Africa you would want some measure of social protection.
This principle was the one Nozick and neo-liberals despised.
Third, Rawls argues for equality of opportunity and the elimination of self-advancement based on birth, family ties or social position, a view also echoed by a modern ‘liberal egalitarian’, Ronald Dworkin.
Rawls has been chastised on the left for not addressing social and economic rights – as opposed to political and civil rights. If you look at the recent text by Amartya Sen, ‘The Idea of Justice’, the fundamental critique is that Rawls posits a one-size-fits-all theory of justice and thus fails to address the reality that the achievement of a Rawlsean society is resource-dependent. Of what value is the freedom of speech when you cannot afford a meal? Sen thus contends thus we should be focused on the worst off and build a just society based on our capacities and needs.
‘Anarchy, State, Utopia’ (1974) was the most subversive reaction against ‘A Theory of Justice’.
Robert Nozick suggested that redistributionist taxation that is not geared solely for the enforcement of contracts and the control of crime is akin to slavery or theft. I own my body, he argues, so I own everything my body produces and if the state takes way from me that which I produce it enslaves me or – more elegantly – “socialism forbids consenting acts between capitalist adults”.
The egregious fault with his argument is of course that it does not follow that because you own your body you own everything you produce. It also allows for no understanding of the human condition other than one based on radically disaggregated and individualistic human behaviour devoid of co-operation and communitarianism.
Now at the time many thought that Nozick was daft and that his ideas could not be implemented and would lead to a radically socially dislocated society. There is some suggestion that “Anarchy, State; Utopia’ was a form of intellectual joke or game perpetrated by Nozick. He was fond of conceits and subsequently wrote a further book with a radically different thesis, so perhaps he did not take what he fully said seriously. It certainly should never have been taken seriously.
It tends to indulge what underpinned Margaret Thatcher’s famous phrase: “There is no such thing as society. There are individual men and women”.
Thatcher was a decided fan of Friedrich Hayek who disapproved of the notion of ‘social justice’, an “empty phrase with no determinable content”. He compared the market to a game in which ‘there is no point in calling the outcome just or unjust’. He generally regarded government redistribution of income or capital as an unacceptable intrusion upon individual freedom. Thatcher once banged a copy of Hayek’s ‘Road to Serfdom’ on the table at a Conservative Research Department meeting, intoning: “This is what we believe in”.
The subversive set of arguments evoked by these stormtroopers has led to a number of unpleasant social developments and neo-liberalism. It was taken up by Thatcher, Reagan and in Ireland by the PDs and led to the veneration of the free market, economic liberalisation, and in practice to the breakdown of regulatory structures to favour the interests of multinationals.
The consequences have been economic collapse surging inequality, the gradual destruction of the middle classes, the privatisation and diminution in health care as a right, the lack of funding in social services, mass homelessness and evictions.
A modern variant of neo-liberalism is the truly disturbing and obnoxious “Law and Economics” movement out of The University of Chicago with two highly placed judges in Easterbrook (dangling for a Supreme Court judgeship) and the truly nefarious “most cited” legal scholar in the world Richard Posner. Here we have the perfect reductio ad absurdum: all of human activity reduced to the wealth maximisation thesis. Rape arises out of scarcity of resources and it is expensive for men to purchase sex so we should have a de-regulated prostitution market (Posner) or adoption should be de-regulated to deal with a competitive babies market where the product can be purchased by the demander based on the quality of same (Posner and Landes). Such nonsense reminds one of Jonathan Swift’s famous polemic ‘A Modest Proposal’ where he savagely satirized an earlier version of neo-liberalism with the argument that it would increase overall wealth if we ate babies.
A charmless Irish twist, in a country with low population density, has been dropping people into ever diminishing spaces to live battery-hen existences to further the interest of the plutocracy. The space we live in affects our very emotional well being as Alain De Boton argued in ‘The Architecture of Happiness’. Put people in a box and they will not work properly.
Further, It is disturbing to note that the behavioural patterns and mentality of much of our younger generation – Thatcher’s children (grandchildren?) or Bertie’s brats if you like – have unconditionally inhaled this consumerism and love of mammon: socially conditioned neo-liberalism. In my experience many have erected an unpleasant edifice with Money as God, learning a chore, technocratic and formal achievement elevated over education, consideration for others optional, entitlement central, community denigrated, civility and manners derided and ethics, and worst of all ethics neutralised. The Neanderthal Me generation.
On the other hand I have no doubt that many of our younger generation have a need, a felt want, to make a contribution and a difference but cannot see how that can be channelled through conventional political structures.
In my view we need crucially to make history compulsory at Leaving Certificate level and in order to engender critical rather than conformist thinking to ensure as the French do that philosophy is firmly on the syllabus compulsory also. In my teaching of the philosophy of law I am simply astonished of wholesale philosophical ignorance with all the effects that has on critical, imaginative or deep thinking.
We need, like the phoenix from the ashes, a new Obama, a leader with vision and with purpose. We also need the growth and endorsement of what Habermas calls “direct democracy” embracing referenda by the people. Further, we need civil disobedience to aid in the vitalisation of our democracy – and we have seen some interesting moves in Ireland.
When I initially gave this paper I invoked the memory of Declan Costello and his famous ‘Just Society’ document of the 1960s, which had such a touchstone effect in moulding Fine Gael around progress, a vision long abandoned. The caring Fine Gael has been hijacked by the marauding neo-liberals.
We need to revisit Declan Costello’s ‘Just Society’ blueprint for, in my view, unless drastic measures are implemented we are at three minutes to midnight.
There is nothing revolutionary about any of this, it is simple social democracy and Rawlsean fairness, which most of civilised Europe adheres to as of course.
It is about the fundamental appreciation that neo-liberalism is extremism.
David Langwallner is now Professor of Law in the Anglo American University of Prague