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For True Social Justice, Do Not Assume the Original Position

When “lost world” or original position doctrines inform our search for justice, we are much less likely to work to improve social conditions in the real world. “Second-best justice,” on the other hand, seeks the reasonable solution to a dispute, one acceptable to all parties that repairs communal harmony to the greatest extent possible. Perfection does not enter the equation, either as an original state or as a goal.

As evidenced by the increasing number of “cancellations,” flares of protests, and heightened speech policing, twenty-first century Westerners are agitating for a just society. But there’s often little clarity on what exactly justice means.

Political philosopher John Rawls presented one systematic and highly influential account in his 1971 book, A Theory of Justice. In it, he argues social justice can be best obtained when institutions and public goods are arranged in accordance with an imagined “original position.” This original position requires a “veil of ignorance,” a figurative device that requires individuals to imagine that their identities and social circumstances are concealed to themselves and all others. This device is supposed to guide how leaders and citizens decide on social policy. If everyone could somehow be gathered in a state of pure anonymity, then rules of justice could be fairly reached. For Rawls, an imagined pristine origin is the engine for achieving fairness.

To many, Rawls’s theory seemed novel and groundbreaking. But in reality, the original position doctrine can be seen as a part of a “lost world” tradition in Western thought. This intellectual tradition imagines an ideal point, age, or state of being in which mankind can find reprieve, even salvation. In Rawls’s attempt to find the formula for arranging a better world by starting over from scratch (or at least pretending to), we can see echoes of an Edenic state of nature that is somehow supposed to instruct later societies. In the “original position” argument, one can see the contours of so many of the social and legal philosophies of at least the past four hundred years. But when lost world or original position doctrines sway our search for justice, we are much less likely to work to improve social conditions in the real world. By measuring the possible against the idealized and the good against the perfect, we tend to lose sight of what we can do right here and now to help our neighbor and improve our little corner of the world.

The good news is that this is not the only way of conceptualizing social justice. Although the “original position” argument has dominated in the West, other intellectual traditions can offer a corrective. In particular, Japan’s legal tradition can help Westerners see that society is messy, and the only way to improve is to start where we are, with what we already have.

 

Original Position Thinking in the Modern West

Rawls’s original position theory has close parallels in earlier modern political thought. The late nineteenth- and early twentieth-century German thinker Ferdinand Tönnies provides a social framework that can map onto many earlier original position theories. Tönnies’s thought also anticipates Rawls’s own theory, and foreshadows the endemic flaws in such thinking.

Tönnies’s greatest insight was in identifying two predominant kinds of societies: Gesellschaft and Gemeinschaft. The “Gemein” in Gemeinschaft means “common.” As in English, “common” can have a pejorative sense, as in déclassé, base, or coarse, but Tönnies wanted to emphasize the in-common-ness, the communal living, of groups of people embedded in longstanding communities, where relationships were personal and involved the whole person. By contrast, Tönnies saw Gesellschaft as the modern form of social interaction, the abstraction we call “society,” wherein relations are modulated by institutions and corporations and governed ultimately by government power. Gesellschaft had replaced Gemeinschaft, and not for the better. People grew alienated from one another and social interactions became impersonal and transactional, no longer bathed in the glow of human community.

For some theorists, the polarity was reversed, however. The past was seen as a mire to be escaped rather than a golden age to which we might return. Thomas Hobbes, for example, famously imagined a “state of nature” that was a perpetual war of all against all. Only later is an ideal point reached, with the establishment of a sovereign who could restrain men’s warlike ways and establish a hard peace. French social and political thinker Jean-Jacques Rousseau, by contrast, posited that man was once in an innocent state but then devolved into corrupting political empire-building, the Gesellschaft that robs men of their pristine souls.

Tönnies’s distinction was later picked up and elaborated on by Max Weber, and the influential Gemeinschaft–Gesellschaft distinction touched a nerve in a rapidly modernizing world. There was a palpable sense of loss in Tönnies’s day—of the medieval peasant community dissolving under the pressures of modern life, with its factories, crowded cities, and railroads. If only men and women could go back to the simpler times, many began to think, to the good old days before the rupture with tradition that modernity entails. The social ills of the city—prostitution, drugs, alcoholism, abandoned families, disease, loneliness, crime—would be solved by a return to man’s original state, before the arrival of the steam engine and the textile mill.

 

Marxism is also an original-position doctrine, and it was birthed by the same sense of alienation that the Gemeinschaft–Gesellschaft distinction captures. Marxism is, at heart, a fable about a lost world. It advances a theory of primitive accumulation that spoiled early communism. In Part VIII, Chapter 26 of Das Kapital, Marx actually likened primitive accumulation to the “original sin” of “Political Economy.” Rapacious plunderers, in Marx’s view, used “conquest, enslavement, robbery, [and] murder” to accumulate private property, after which they coated their theft in tales of the indolence of the poor and the intelligence of the rich. For Marx, such primitive accumulation is the origin of capitalists and of capitalism. Marx thus sees the return to communism as the project of the leader who has achieved enhanced consciousness of this perpetual injustice.

All these varieties of “lost world” thinking tear political focus away from on-the-ground, immediate problems in communities. As suggested by the preceding overview of its theoretical development, original position theories breed detached nostalgia or utopian longing that can lead to revolutionary fervor based on delusional political designs.

“Second-Best Justice” and Japanese Jurisprudential Tradition

A better and more grounded approach to social justice is best summed up by what is known in East Asian legal studies as “second-best justice,” the title of a 2015 book by Harvard legal historian J. Mark Ramseyer about jurisprudence in Japan.

Ramseyer’s conception of second-best justice is explained on the very first page of chapter one: “doing well by making do.” Ramseyer starts from the premise that the Japanese legal system “works just fine.” The reason, Ramseyer says, is that “Japanese do not expect as much of their courts” as do Americans. “They do not aspire to run a perfect system or to offer perfect justice.” Ramseyer cites the work of many scholars, such as R.G. Lipsey, Kevin Lancaster, Richard Epstein, and Douglas Baird, alongside a bevy of evidence from Japan to illustrate that Japanese “accomplish more by attempting less.” They do not try to reinvent the wheel or, to extend the metaphor, to make the wheel perfectly round down to the molecular level. “They adopt strategies that are mostly right,” Ramseyer emphasizes, “and stop the inquiry.”

Second-best justice brings more and better justice in the real world. Take the cases presided over by Ōoka Tadasuke, Echizen-no-Kami (1677–1752), a magistrate during the Tokugawa period. Magistrate Ōoka is legendary in Japan—literally. Many of the tales told about this real person are exaggerated, and some are invented out of whole cloth. But Ōoka has become a Japanese folk hero precisely because of the important work that he did in his courtroom. He applied the law creatively, overlooking it here and there where needed, to effect justice.

 

One of the most popular Ōoka cases involved a young boy who was walking home one day past the moat of a castle owned by the grand Tokugawa family. As boys often do, he stopped and began throwing rocks into the water. By accident, he hit and killed one of the waterfowl paddling along in the moat. To kill an animal on the shogun’s property was death under the law. The boy was arrested and brought before Magistrate Ōoka, who, by law, had no choice but to condemn the boy to be executed. But Ōoka had another idea. “Bring me the dead bird,” he ordered. The evidence, consisting of one very dead duck, was brought in and deposited on the magistrate’s desk. In a transparent maneuver, Ōoka then produced from under his desk a live duck and switched it out for the dead one. “This bird is alive,” Ōoka declared. “Case dismissed.”

It took great moral courage for Ōoka to bend the law in this way. The Tokugawa dispensation was essentially martial law, after all. Ōoka was risking his life to do the right thing by the poor. But many of his peers and superiors in government came to recognize his moral authority, and even mighty warrior-rulers sought out his rulings on difficult cases. Ōoka was not attempting to perfect society. He was just trying to do the right thing within the given circumstances. It took imagination, creativity, and even a bit of winking at the law. What it did not require was a grand social theory. Ōoka sought what we might call second-best justice, a willingness to tolerate an imperfect society in order to achieve the greater good.

Social Justice Begins and Ends in Real Societies

In an original position society, one in which the perfection of order is sought, this kind of legerdemain is not possible. We seek too much when we seek to set the clock of injustice all the way back to midnight and begin the story anew on the right foot. Perhaps there is a way to uplift people in real communities—right in the midst of our alienated and impersonal Gesellschaft—without striving to implement some lost Gemeinschaft of yore.

In reality, justice will always be somewhat improvised because all societies are messy. Law and reality are often greatly at odds. The example of Japanese jurisprudence, “second-best justice” both in the Tokugawa time and today, teaches us that justice is not the pursuit of a lost world. It is this world, rearranged just a little bit so that the good can be done and the wrong can be avoided—imperfectly, in a very human way. In Japan, “right” and “wrong” can be considered absolute principles conceptually, of course. But in practice they are questions of possibility, of lateral ranges of choice in a complex world. Counterintuitively for Westerners, who seem prone to original-position thinking, Japanese justice often works better, as Ramseyer says, by attempting less.

Second-best justice has no posited origins or telos. Second-best justice seeks the reasonable solution to a dispute, one acceptable to all parties that repairs communal harmony to the greatest extent possible. Perfection does not enter the equation, either as an original ground or as a goal. Social justice, even on large scales like institution-building, works best when people avoid “systemic” justice schemes and simply do the right thing without aiming for a complete restitution of the world to an original position.

Justice is not original, and it is not a position. It is dynamic, a work in progress, calling forth the best of human creativity working right here and now, in medias res.

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