Justice: Necessary, but not sufficient
Adam Smith's Three Justices, Part 1, Commutative Justice
Do you have a coherent system of justice? One that you can draw on when you are making a judgment about your interactions with others, your judgment of the action of others, your support or opposition to government policy, as well as how you will live your own life? I’d like to propose that Adam Smith’s theory of three justices provides a coherent framework that can answer these questions. It’s one I have studied and I use, to the best of my ability. If you’ve been reading my work for a while, you will probably recognize these constructs. Sometimes I call them out, sometimes I just allude to them. But for these next three BITW newsletters, I plan to talk about each of these justices. I’m going to divide up the discussion because each is worth considering by itself, and I hope I can just refer back to these individual letters when I reference the ideas again in the future.
First, who was Adam Smith? Today he is remembered as the father of modern economics. His book, An Inquiry into the Nature and Causes of the Wealth of Nations, usually just referred to as The Wealth of Nations (“WN”), was published in 1776. It is a remarkable text that provides much of the foundation for modern economics. He got some stuff wrong, but he got so much more right that the book is still appropriately revered. But for my discussion here, his much less remembered book, The Theory of Moral Sentiments (“TMS”), published in 1759 is going to give us most of what I want to talk about. In his own day, Smith taught law, and was regarded as a moral philosopher based on TMS. Whereas WN focuses on societal and economic issues, such as trade, specialization, and the interaction of government and market forces, TMS focuses primarily on individual psychology and philosophy and one-on-one relationships. Interestingly, there was a whole line of scholarship in the 19th century that argued that the views of human beings and human character between the books were incompatible. I don’t happen to agree, but the fact that smart people argued over it is a good illustration of how robust the two books are. The American Founders read Adam Smith and other Enlightenment authors, and these authors had an impact on the philosophy behind the Declaration, as well as the Constitution. So whether you know it or not, if you are an American citizen, your life has been shaped, at least in part, by the writings of Adam Smith.
So that’s enough table setting, let me get to the point: Adam Smith writes clearly about three justices. There may be a fourth, but I am going to ignore that because I don’t think it was sufficiently well-developed. So I’ll summarize each of the three with a phrase. I am going to write about the first (commutative justice) today, and then I’ll circle back and write about the latter two in the next two subsequent letters.
Adam Smith’s Three Justices:
Commutative Justice: Not messing with other people or their stuff, and not breaching contracts.
Distributive Justice: A becoming use of one’s own.
Estimative Justice: Accurately evaluating relative importance and worth.
Commutative Justice
The phrase commutative justice (“CJ”) doesn’t have resonance in the modern mind from my perspective. I’m not sure why he chose commutative to modify justice to refer to this kind of justice. But regardless, I am going to use that phrase. Smith describes CJ in this passage where he is describing each of the justices:
The first sense of the word [justice] coincides with what Aristotle and the Schoolmen call commutative justice, and with what Grotius calls the justitia expletrix, which consists in abstaining from what is another’s, and in doing voluntarily whatever we can with propriety be forced to do. (TMS, p. 269)
The wording is a little convoluted, but he is saying CJ is not messing with another’s stuff and generally doing all the things that we could be forced to do. Using force against another human without justification is one of the major violations of CJ, and it is only appropriate when someone violates the tenets of CJ. In the same part of TMS he says,
This is that justice which I have treated of above, the observance of which may be extorted by force, and the violation of which exposes to punishment. (TMS 269)
So if you violate CJ, you can be punished, by force if necessary. What are the tenets of CJ? My mentor and co-author, Dan Klein calls these tenets the “Three staples of justice: Person, property, promises due.” So you violate CJ if you physically hurt a person, take or damage their property, or fail to deliver on a contract. Smith ranks the violations in this order:
As the greater and more irreparable the evil that is done, the resentment of the sufferer runs naturally the higher… Murder, therefore, is the most atrocious of all crimes[.] . . . To be deprived of that which we are possessed of, is a greater evil than to be disappointed of what we have only the expectation. Breach of property, therefore, theft and robbery, which take from us what we are possessed of, are greater crimes than breach of contract, which only disappoints us of what we expected. The most sacred laws of justice, therefore, those whose violation seems to call loudest for vengeance and punishment, are the laws which guard the life and person of our neighbor; the next are those which guard his property and possessions; and last of all come those which guard what are called his personal rights, or what is due to him from the promises of others. (TMS, pp. 81-82)
So Smith says these are the three tenets of CJ (my phrasing), in order of seriousness:
Thou shalt not murder (or physically assault)
Thou shalt not steal
Thou shalt not breach a contractual obligation
Smith makes a big point about CJ being governed by general rules. You have to follow the tenets of CJ and if you don’t, people will be justified in punishing you. That justification is pretty much the only allowance for violating a CJ rule. You can physically assault someone if they are trying to murder you, hurt you, or take your stuff. The response has to be matched to the violation - if someone tries to grab your purse while you are walking down the street, you are justified in punching them to get it back, but you aren’t justified in shooting them dead. The violation is clear - but the response has to be gauged appropriately. Smith says that the rules of CJ are “the only rules of morality which are precise and accurate” (TMS. p. 327). He goes on to compare the rules of CJ to grammar:
The rules of [commutative] justice may be compared to the rules of grammar; the rules of the other virtues, to the rules which critics lay down for the attainment of what is sublime and elegant in composition. The one, are precise, accurate, and indispensable. The other, are loose, vague, and indeterminate, and present us rather with a general idea of the perfection we ought to aim at, than afford us any certain and infallible directions for acquiring it. A man may learn to write grammatically by rule, with the most absolute infallibility; and so, perhaps, he may be taught to act justly. (TMS, pp. 175-176)
When he talks about the other rules, he’s referring to the other two justices which we will continue with next time. The rules of CJ are clear, and can be learned. There aren’t that many of them, so I think that’s pretty plain.
I use the word “obligation” a lot in this newsletter because I am drawing on the Smithian concept of CJ. Sacred obligations sometimes don’t come with written contracts. You don’t sign a contract when you have a kid, but not taking care of your kid is, to me, a CJ violation. Not all obligations rise to CJ level, and that is one area where Smith’s theory of justices gets a little murky. For example, if you promise to meet a friend for dinner and you forget, that isn’t really punishable. You could argue it wasn’t really a contract, anyway. It’s kind of crappy, and you should feel bad, but you shouldn’t get a beating for it. Some obligations more rightly come under the Distributive Justice definition, and knowing which ones they are is part of Estimative Justice.
A final point: you can fulfill all the rules of CJ and that is a necessary but not sufficient condition for being a good person and living a worthy life. Smith says:
Mere justice is, upon most occasions, but a negative virtue, and only hinders us from hurting our neighbor. The man who barely abstains from violating either the person, or the estate, or the reputation of his neighbors, has surely very little positive merit. He fulfills, however, all the rules of what is peculiarly called justice, and does everything which his equals can with propriety force him to do, or which they can punish him for not doing. (TMS, p. 82)
There’s nothing admirable about not hurting people, not taking their stuff, and living up to your contractual obligations. That’s just not being a bad person. Not being a bad person is not the same thing as being a good person. Not being a bad person makes you fit for society. By obeying the tenets of CJ, you get to stay in society. But no one is going say, “Bonica is such a great guy - look at all the people he didn’t murder, all the stuff that wasn’t his that he didn’t take, and oh yeah, he paid all his bills.” Basically CJ is a series of thou shalt nots. It’s about what you can’t do, not what you should do. To understand what it takes to be a good person, someone worthy of admiration, we have to get into the other two justices - which we will do next week.
So three really important takeaways from Smith’s system of justice with regard to CJ:
Commutative justice is a violation of a person, her/his stuff, or a breach of contract.
The only time it’s ok for one person to use violence against another person in Smith’s system of justice is in response to a violation of CJ.
Obeying the rules of CJ is necessary but not sufficient for being regarded as a good person and living a worthy life.
See you next time for part 2, Distributive Justice.
Smith, A. (1976). The theory of moral sentiments. Liberty Fund.