The Concept of Justice in Marx, Engels, and OthersAuthor(s): William Leon McBrideSource: Ethics, Vol. 85, No. 3 (Apr., 1975), pp. 204-218Published by: The University of Chicago PressStable URL: http://www.jstor.org/stable/2380048Accessed: 26/05/2010 03:10

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The Concept of Justice inr Marx, Engels, and Others

William Leon McBride Purdue University

The concept of justice has always been among the foremost concepts of concern to political theorists. So it was at the beginning with Plato, whose Republic is a ten-book-long effort at defining justice in the state and in the individual. So it is as Western civilization, at least in the narrowly geographi- cal sense of the term, enters into its period of decline, as John Rawls's A Theory ofJustice and the many articles parasitic upon that flawed but monu- mental work dominate the attention of American political theorists.

For those of us who find Plato compelling but fundamentally wrong, and Rawls charming and admirable but anachronistic and abstract, Karl Marx is the most obvious theorist to whom to look for clarification. Surely, one is moved to suspect, there must be much wisdom about the concept of justice in those obsessively voluminous writings, published and unpublished, that Marx bequeathed to the twentieth century. Marx was thoroughly versed in the writings of classical politics, and was thus aware of the place that justice occupied in them; he knew his Hobbes, at least to some extent, and he was therefore aware of what we today would call the extreme legal positivist position on the subject. He also had some familiarity, at least second-hand, with Immanuel Kant's legal philosophy, in which justice is again the key term.

Unfortunately for us, a perusal of Marx's writings yields practically nothing that might satisfy these expectations. Perhaps a sophisticated scan- ning device might some day be employed to ferret out all the instances in which the word Gerechtigkeit appears in his works. I am. confident that the yield would be amazingly impoverished-much smaller than the results of a similar analysis of practically any popular journalistic columnist of whom one could think. Marx wrote extensively about innumerable topics of interest to political theorists, even though he does, it is true, regard the whole domain of politics as somehow dependent upon that of economics and upon histori- cal, material conditions. Therefore, it seems reasonable to speculate, it must have involved a considerable effort to keep his references to justice so sparse.

204

205 The Concept of Justice

Such speculation turns out to be well founded. In a brief note to Engels concerning a then recent criticism of volume 1 of Capital by an economist named Hildebrand, Marx says that he was moved to laughter at the thought that "now even political economy is to be dissolved into twaddle about 'conceptions of justice!' "I Both in this note and in a few other places in his works, Marx seems to agree with Engels in the total condemnation of justice-talk as mere ideology, and consequently in a totally relativistic analysis of the concept. 'Justice,' for both of them, seems never to mean anything more than "justice within a particular socioeconomic system." There was feudal justice, and there is bourgeois justice. Within the framework of the latter, it cannot be said to be unjust to extract surplus value from workers, though it might well be unjust to refuse to pay them agreed-upon wages. The thoroughgoing Marxist critique of the entire capitalist system and of the ideology of political economy that supports it cannot, therefore, rely to the slightest extent on the claim that that system is unjust. As Engels says by way of clarifying his attack on Proudhon's moralism in the supplement to his essay The Housing Question:

And always this [ideal of justice, eternal justice] is but the ideologised, glorified expression of the existing economic relations, now from their conservative, and now from their revolutionary angle. The justice of the Greeks and Romans held slavery to be just; the justice of the bourgeois of 1789 demanded the abolition of feudalism on the ground that it was unjust. ... The conception of eternal justice, therefore, varies not only with time and place, but also with the persons concerned, and belongs among those things of which Mulberger correctly says, 'everyone understands some- thing different.'2

It is this passage more than any other, I think, that has inspired two recent American treatments of the subject of Marx on justice, namely, an article by Allen Wood in Philosophy and Public Affairs, and a chapter in Robert Tucker's The Marxian Revolutionary Idea.3 Both are in substantial agreement that Marx did not take the bourgeois order or the capitalist system as such to be unjust, although Wood, whose article was the later of the two to appear, finds Tucker guilty of reading too much into Marx's motives for taking this position. In particular, Wood does not believe, as Tucker does, that Marx was highly fearful of workers' becoming trapped, by sloganizing about jus- tice, into accepting measures of mere reform within the existing system (although Wood acknowledges that perhaps Marx ought to have feared this greatly); and Wood thinks that some of the linkage claimed by Tucker be- tween the concept of justice and that of equality in Marx's mind is sheer interpolation on Tucker's part. At any rate, the important point is the agree-

1. Marx to Engels, July 20, 1870, in Correspondence, 1846-1895, by Karl Marx and Friedrich Engels (New York: International Publishers, n.d), p. 293.

2. Karl Marx and Friedrich Engels, Selected Works, vol. 1. (Moscow: Foreign Languages Publishing House, 1962), p. 624.

3. Allen Wood, "The Marxian Critique of Justice," Philosophy and Public Affairs 1, no. 3 (Spring 1972): 244-82; Robert Tucker, The Marxian Revolutionary Idea (New York: W. W. Norton & Co., 1969), chap. 3, pp. 37-5 3, reprinted from Nomos VI: Justice (1963).

206 Ethics

ment between the two writers and their consequent dismissal of the idea around which Ralf Dahrendorf, for instance, constructed an entire mono- graph, Die Idee des Gerechten im Denken von Karl Marx. The point common to Wood and Tucker has caught on: I find a writer in a more recent issue of Philosophy and Public Affairs, for instance, using their joint authority to ex- clude Marxism from consideration under the rubric of "socialism" as he at- tempts to juxtapose an ideal-typical socialist conception of justice, which would distribute rewards on the basis of effort, with an ideal-typical capitalist conception of it, which would distribute them on the basis of success.4 And John Rawls himself adverts to The Marxian Revolutionary Idea when he makes a very rare reference to Marxism by name; on Tucker's authority, Rawls tentatively labels Marxism as one of those systems of thought which holds as its ideal a form of social order beyond justice.5

On the other hand, it remains indisputably true that Marx's Critique of the Gotha Programme contains a sketch of possible future stages on the road to a fully socialistic society, the last of which is to be characterized by the slogan, "From each according to his ability, to each according to his needs!" Tucker is quick to point out that this is the only occasion on which Marx uses this borrowed slogan and that it occurs in the context of a vehement criticism of the Lassalleans, who had drawn up the Gotha Programme, for overem- phasizing the theme of distribution, as opposed to production.6 Marx never wavered from the conviction that arrangements in the latter sphere deter- mined those in other spheres of the economy and determined other social institutional arrangements as well; consequently, a radical change in the sphere of production would automatically bring about a similar alteration in distribution. Moreover, it seems clear that the mention of this slogan was not intended by Marx to constitute a general blueprint for the society of the future; blueprinting was a utopian occupation that Marx scorned. So perhaps the famous slogan should not be taken so seriously. It is, unquestionably, the one sentence in all of Marx that can most readily be stamped "Marx's concept of justice" and then placed in a show window along with all the other for- mulas that have been proposed over the centuries.

I am inclined to think that Engels was quite serious in his ultra- relativistic approach to the concept of justice. I am also convinced that "to each according to his needs" is not intended by Marx as a directive for a distribution formula; he does not, for instance, expect us to quantify relative needs along a 100-point scale as a prelude to understanding how society ideally might be organized, or anything of the sort. However, I am struck by the continued existence of large numbers of unasked questions about the concept of justice in Marx and, since there is not much of a concept of justice in him, about the concept of justice in Engels. Raising these questions will, I

4. Michael Slote, "Desert, Consent, and Justice," Philosopby and Public Affairs 2, no. 4 (Summer 1973): 324.

5. John Rawls, A Theory of Justice (Cambridge, Harvard University Press, 1972), p. 281. 6. Tucker, p. 48.

207 The Concept of Justice

hope, contribute to placing the concept of justice elsewhere in a somewhat new perspective, in light of Marx's critique.

11

To begin with, I feel somewhat uneasy about the failure of the two commentators whom I have mentioned to explore the bare possibility, at least, that there may exist some implicit diversity of views between Marx and his colleague, Engels, on the subject. This is a familiar general problem in Marxist scholarship, and a good deal has been written about it with respect to certain other topics, such as Engels's idea of a "dialectics of nature." It is a difficult matter to deal with, since the collaboration and mutual expressions of approval between the two were so total and frequent, and since Marx never explicitly contradicted Engels, to my knowledge, on any important theoretical issue. Nevertheless, everyone admits that there is a considerable difference in style and emphasis between them, and I think it would be surprising, on the face of it, if this difference were based on no differences whatever in their respective patterns of thought. Thus Wood is following a very commonplace custom when, immediately after citing a strong statement by Engels alone to the effect that capitalism cannot be considered "unjust," he refers to this view as being that of "Marx and Engels."7 But perhaps this identification of the two is a bit too hasty. At least, as I have said, the possibility may be worth exploring.

Let us consider two passages written by Marx himself (and intended, unlike his letters, for publication) in which the concept of justice seems to arise. The first, cited by both Wood and Tucker, occurs in volume 1 of Capital. Apropos of the capitalist's extraction of surplus value from the worker by virtue of obtaining a full day's labor from him while paying him wages, in the example being used, that are equivalent to the productivity of only a half-day's labor, Marx says:

The circumstance, that on the one hand the daily sustenance of labour-power costs only half a day's labour, while on the other hand the very same labour-power can work during a whole day, that consequently the value which its use during one day creates, is double what he pays for that use, this circumstance is, without doubt, a piece of good luck for the buyer, but by no means an injury to the seller.8

In the old, standard translation that I am using, the key word, as it will have been noticed, is 'injury.' In German, the word is Unrecht. Tucker, conscious of the demands of good scholarship, translates it as 'injustice' but places Unrecht in parentheses immediately following it. Wood simply translates it as 'injustice.' Germanists would be much better equipped than I to decide which of the two translations is better. It is clear, at any rate, that this passage brings us into confrontation once again with one of those primitive linguistic facts that hold innumerable theoretical implications for students of

7. Wood, p. 246. 8. Capital, vol. 1, trans. Samuel Moore and Edward Aveling (Moscow: Foreign Languages

Publishing House, 1961), chap. 7, sec. 2, p. 194.

208 Ethics

politics, namely, the well-known fact that the stem, recht, from which the German words for both wrong or harm or injury (Unrecht) and for justice (Gerechtigkeit) arise also serves as a word in itself, to convey the meanings of the English words 'right' and 'law.' It is clear that this fact was very much on Engels's mind when, in leading up to the passage that I cited earlier from The Housing Question, he wrote of the close historical connection between succes- sively dominant legal systems and the successive and mutually contradictory ideologies of justice that have been used to support them. But this whole series of considerations leaves somewhat ambiguous, it seems to me, the question of whether Marx really intended to make a decisive pronouncement about the concept of 'justice' in this passage in Capital. In fact, the broader context of the passage, and especially the following paragraph, make it obvi- ous that Marx is delineating the inherent ambiguity of the worker-capitalist relationship itself. Of course, no injury has been done the worker in terms of the legal definitions of 'right' and 'wrong' within the capitalist system. But the chapter in which the passage occurs is the very one that Marx introduces with his famous depiction of the descent from the sphere of circulation, where all has appeared to be "Freedom, Equality, Property, and Bentham," to the sphere of production, where the worker walks behind the capitalist with an air of expecting nothing but "a hiding." And immediately after the sentence concerning the lack of Unrecht in this disproportionate, unequal bargain between worker and capitalist, Marx says: "Our capitalist foresaw this state of things, and that was the cause of his laughter"; a few sentences later he concludes: "The trick has at last succeeded; money has been con- verted into capital." The use of the word 'trick' here is significant; it should not be forgotten.

Now let me turn to the second of my passages from Marx. It occurs in volume 3 of Capital in a discussion of interest. In a footnote, Marx refers to a book, The History and Principles of Banking, by William James Gilbart, in which it is claimed that it is "a self-evident principle of natural justice" that some portion of money that has been borrowed for the purpose of making a profit for the borrower should be given to the lender. Apropos of this, Marx says:

To speak here of natural justice, as Gilbart does ... is nonsense. The justice of the transactions between agents of production rests on the fact that these arise as natural consequences out of the production relationships. The juristic forms in which these economic transactions appear as wilful acts of the parties concerned, as expressions of their common will and as contracts that may be enforced by law against some indi- vidual party, cannot, being mere forms, determine this content. They merely express it. This content is just whenever it corresponds, is appropriate, to the mode of production. It is unjust whenever it contradicts that mode. Slavery on the basis of capitalist production is unjust; likewise fraud in the quality of commodities.9

In this passage Marx can be seen to adhere much more unambiguously than

9. Capital, vol. 3 (Moscow: Foreign Languages Publishing House, 1962), pp. 333-34.

209 The Concept of Justice

in the first to the extreme Engelsian relativism concerning the concept of 'justice.' I would merely like to point out that the perspective from which Marx, in this passage, treats of 'fraud' as an example of an unjust action under capitalism seems quite different from the perspective from which he desig- nated 'trickery,' a synonym of 'fraud,' as being a basic characteristic of the worker-employer contractual relationship under capitalism in the passage cited previously.

Enough, and probably more than enough, of exegesis. What are we to conclude about the concept of justice in Marx? At the very least, I think, we should conclude that Allen Wood is misleading us and others who have read his article when he uses such language as the following: (a) "the fact that Marx does not regard capitalism as unjust,"'10 or (b) "Marx's insistence on the justice of capitalism."" Of course, to take these phrases out of context is not to do justice, if I may be permitted the expression, to Wood's generally thoughtful and well-reasoned argument, but I am much more concerned at the moment with talking about justice than with doing it. And I am afraid that these phrases do misrepresent Marx's position, and probably even that of Engels.

III

We ought to begin our reformulation of that position (or those positions, if they are not totally identical) by recalling an elementary distinction, that between justice within a given ethico-legal system and justice from a perspec- tive external to that system. Clearly, neither Marx nor Engels had any difficulties about admitting the meaningfulness of speaking of justice within the limits of a given system; it was for this very reason that they were so highly skeptical of talk about justice eternelle. Aristotle, after all, whom Marx greatly admired in certain respects, had thought that slavery in his slave society was eminently just, as long as the appropriate individuals served as the slaves. So the issue resolves itself into one of whether Marx and Engels, or perhaps Marx alone, would have been willing to concede that there was any meaning whatever to talking about the 'justice' or 'injustice' of a system from a perspective external to it. In one sense, of course, we have our answer already: in the passage from volume 3 of Capital that I cited, Marx says that slavery is unjust from the point of view of capitalist production. Similarly, Engels pointed out that feudalism appeared unjust to the bourgeoisie of 1789. But it is easy to report about what others have said; any would-be historian, for example, could quickly collate a great many statements that were once made about phlogiston, a term that Engels actually analogizes to 'justice' in The Housing Question, without thereby committing himself to any personal theories about phlogiston.

What is the perspective of Marx and/or Engels themselves on the con- cept of 'justice'? For Engels, clearly, it is that that concept is "social phlogis-

10. Wood, p. 245. 11. Ibid., p. 272.

210 Ethics

ton," as he expresses it.12 It is illusory, not a reality at all. But can the analogy really hold? 'Just' and 'unjust,' after all, were admitted by Engels and Marx to be meaningful words when applied from within the capitalist system to certain kinds of practices; therefore, the terms 'just' and 'unjust' must have real referents within that actual historical system. 'Phlogiston,' on the other hand, served a function within a certain early chemical theory, but Engels is too much of a realist to want to say that phlogiston ever actually existed. Eventually, he points out, most of the properties of oxygen came to be ascribed to this illusory element, but even after that the fight to acknowledge its illusoriness was a long and bitter one. Is there any exact or nearly exact parallel to be drawn in the case of the possible future of the concept of justice? In other words, phlogiston:justice::oxygen:X. Perhaps some sort of answer could be worked out, but I think that my point has been made: the two sorts of concepts are sufficiently dissimilar to put into question the value of the analogy.

Moreover, Engels is certainly contradicting himself, at least when we attempt to take him very literally, in conceding the correctness of his oppo- nent Mfilberger's claim that "everyone understands something different" about justice. If the basic Marxist point about the ideological function of the concept of justice in all past and present societies is to be taken seriously, as I think it should be, then there must have been a considerable core of agreement about its meaning in various places and at various times in the past.

In short, Engels cannot carry his ethical, historical relativism too far with respect to the concept of 'justice' without undermining the entire Marx- ist theoretical program. If that concept has had as powerful a function in shoring up both ideological and practical conformity to existing social struc- tures as he rightly claims it to have had in the past and in his own era, then it is only at his peril that he can dismiss it as mere "illusion." Most especially, he cannot shift from treating justice as a class-bound concept to treating it as a totally equivocal term, a mereflatus vocis-perhaps an utterance of emotional approval, like 'hurrah!' as the ethical noncognitivists would have it-without depriving the Marxist account of ideology of its explantatory power. I think that there are several passages, not only in The Housing Question, but also in the so-called Anti-Diihring, in which Engels's zeal to eliminate all talk of "eternal truths," after the fashions of Plato and Duhring and Proudhon, brings him dangerously close to the brink of total dissolution of the truth- claims of Marxist theory.

Marx himself was much more cautious than his colleague in such mat- ters; I like to think of Marx as the greater genius of the two, and to ascribe his caution to a greater awareness of some of the fundamental theoretical prob- lems. Of course, Marx steered away from justice-talk because he thought of it as ideological twaddle, certain to detract from his rigorous critical analysis of the capitalist system if he should once introduce it in any explanatory role, however minor; as we have already seen, he was far more thoroughgoing

12. Engels, in Marx and Engels, Selected Works, p. 625.

211 The Concept of Justice

than was Engels in abiding by this self-imposed prohibition. Marx wrote Capital from a radically critical perspective external to that of capitalism; from the fact that he regards, for example, wage labor as just within the premises of the capitalist mode of production, does it follow that he considers that mode of production as such to be a just one? He certainly never says so explicitly, pace some recent commentators. And I suppose that, if asked the question, Marx would have said that it was a poorly formulated question, unanswerable without considerable prior clarification of the terms in which it had been asked.

Iv

One way in which we might consider beginning to undertake such a clarification is to consider certain other terms, similar to justice in the sense of being abstractions that have frequently been thought to embody major social values. I shall now propose three such terms and proceed to discuss very briefly how Marx's and/or Engels's treatments of each, in turn, might shed some light on the problem of what we ought finally to say about the concept of justice. The three terms are equality, freedom, and rationality.

1. The question of equality is a particularly interesting one for those seeking clues as to what Marx and Engels really thought about the concept of justice. Equality is important because it has so frequently been linked with justice: in the influential and magisterial treatment of the subject by Aristot- le, for example, the idea of justice as "proportional equality" looms very large. The metaphor of the balanced scales is just one particularly graphic instance of the very close historical linkage between justice and equality. Marx and Engels never posed as complete egalitarians. In his 1844 Manu- scripts, for instance, Marx sketches a conceptual outline of a state of affairs that he calls "crude, egalitarian communism," which he sees as characterized by leveling, envy of all special talent, and, in effect, the universalization of the notion of private property rather than its abolition. In his Anti-Diibring, Engels includes an entire chapter on equality; its most revealing paragraph reads as follows:

The demand for equality in the mouth of the proletariat has, therefore a double meaning. It is either . . . the spontaneous reaction against the crying social in- equalities, against the contrast of rich and poor, the feudal lords and their serfs, surfeit and starvation; as such it is the simple expression of the revolutionary instinct, and finds its justification in that, and indeed only in that. Or, on the other hand, the proletarian demand for equality has arisen as the reaction against the bourgeois de- mand for equality, drawing more or less correct and more far-reaching demands from this bourgeois demand, and serving as an agitational means in order to rouse the workers against the capitalists on the basis of the capitalists' own assertions; and in this case it stands and falls with bourgeois equality itself. In both cases the real content of the proletarian demand for equality is the demand for the abolition of classes. Any demand for equality which goes beyond that, of necessity passes into absurdity. 13

13. Friedrich Engels, Herr Eugen Dfihring's Revolution in Science, trans. E. Burns (New York: International Publishers, 1939), pp. 117-18.

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Engels is claiming, first, that the call for equality sometimes has a positive value for revolutionary activity; second, that it may be useful to stress the contradictions between bourgeois ideas about equality and inegalitarian bourgeois practices; third, that the demand that all individuals have "equal- ity" of class status can be translated and clarified into the demand for the abolition of class differences and hence of classes; and fourth, that the de- mand that all individuals in a possible future classless society be made equal in every way is an unjustifiable and senseless demand. He is also implying, quite obviously, that 'equality' is not a very useful conceptual tool with which to undertake a rigorous, and in that sense scientific, analysis of existing social structures. In this respect, there is a great deal of similarity between Marx's and Engels's treatments of equality and what we have seen concern- ing their treatments of justice; but there is no equivalent, in the case of justice, to Engels's more positive remarks concerning the potential strategic usefulness of the demands for equality. Could this fact perhaps be due more to circumstance-that is, to the far greater abuses traceable to the ideological cant about justice among other nineteenth-century writers-than to any dif- ference in principle of a radical and ineluctable sort, between the two con- cepts considered as social values? Could it also be due in part to the fact that 'equality' has an unquestionably legitimate use as a key concept in mathe- matics and logic, whereas 'justice' can boast no similar legitimacy?

2. 'Freedom' is a term found frequently throughout the writings of both Marx and Engels. The latter, at least, finds no difficulty in referring to it as a principal characteristic of postcapitalist society; he speaks of the ascent to the reign of freedom. Marx, once again, is somewhat more cautious. In the Critique of the Gotha Programme, for example, he is highly critical of the Lassalleans' call for a "free state," because this implies perpetual retention of political structures that Marx considers eliminable. And in his description of the wage contract, he emphasizes that the worker is indeed a 'free laborer," by comparison both with the ancient slave and with the feudal serf. At the same time, however, he readily admits that the worker is radically subser- vient to the economic structures within which he operates, and hence highly unfree, from his (Marx's) own critical perspective. In the case of the term 'freedom,' then, we find a pattern of dual meanings-meanings the relation- ship of which to one another can be spelled out, and yet meanings that are substantially different from one another. The worker, in short, is, according to Marx, truly free within the legal conceptions of the capitalist system, and yet truly unfree from the vantage point of critical, proletarian consciousness.

3. 'Rationality' is another interesting abstract value-term to compare with 'justice' in the present context. It may seem to us a trifle less emotive and value-laden than the first two. At any rate, it is a characteristic that is frequently said to be supremely present in the modern state and legal system, and the practice of so ascribing it owes much, historically speaking, to an intellectual tradition traceable from Max Weber through Marx back to Hegel. Both Hegel and Marx were fascinated by the achievements of the

21 3 The Concept of Justice

science of political economy in discovering the intricate inner rationality of capitalism, and Marx's mature work consists primarily, of course, in working within that intellectual tradition in order to undermine both it and the system that it analyzed. The more we read what Marx has to say about rationality, the more we are struck by the duality-or perhaps plurality-of meanings that he considers the concept to contain. He finds no difficulty in accom- modating the two meanings even within the same sentence, as when he says the following about the evolution of agriculture under capitalism: "The rationalizing of agriculture, on the one hand, which makes it for the first time capable of operating on a social scale, and the reduction ad absurdum of property in land, on the other, are the great achievements of the capitalist mode of production."'14 Marx's meaning is clear enough, I think. He is claiming that modem developments, bringing agriculture increasingly within the capitalist orbit, are resulting in more efficient farm production, but that at the same time the irrationality, or absurdity, of private ownership of land is being made increasingly evident. A system may well be simultaneously a rationalizing one, from an internal point of view, and supremely irrational, from an external standpoint.15

What are the implications of Marx's discussion of these three abstract concepts, rationality, freedom, and equality, for his theory of justice? Ra- tionality from the standpoint of a "higher form of society" might well be called, without great distortion, a "higher rationality"; the freedom of Engels's "reign of freedom" might quite legitimately be called, in the Hegelian terminology, a "fuller realization of freedom"; a classless society might be said to be a state of greater equality than any in the past, though only in a very specific, delimited sense. (It would be senseless to speak of a "higher equality," and it would be misleading to speak of anticipating the achievement of greater equality in every way.) Justice, in the thought of Marx, is different from all these in some significant respects, because it is totally epiphenomenal and dependent on the existing order, whereas none of the others is quite as completely so. And yet, and yet . . . I do not see how Marx and Engels could, if pressed on the matter, logically avoid recognizing that justice, too, can meaningfully be referred to from a standpoint at least par- tially external to any particular past or present socioeconomic system. It, too, must, I am convinced, be said to be dualistic or pluralistic in meaning, so that at least at the present stage of society it cannot be understood strictly in terms of the standards of capitalism.16

14. Capital, 3:604. 15. As Marx expresses it near the end of his treatment of agriculture: "From the standpoint

of a higher economic form of society, private ownership of the globe by single individuals will appear quite as absurd as private ownership of one man by another" (ibid., p. 757).

16. I thus seem to have come, by a very different route, to share some of Herbert Marcuse's insights concerning the function of abstract terms in both classical philosophy and modern dialectical thought. While there are serious deficiencies, I think, in his critical analyses of both operationalism in the social sciences and linguistic analysis in philosophy, as he expounds them in One-dimensional Man (Boston: Beacon Press, 1964), he is correct in seeing the importance of

214 Ethics

Engels and Marx never pretended to be legal positivists in the simple fashion of Hobbes: justice, for them, is not simply action in conformity with the existing legal system, itself taken as a logically consistent whole. For the domain of ideology, of which justice-talk is a part, is a complex one in both a vertical and a horizontal sense. It is vertically complex with respect to justice, in the sense that it consists of several levels: the implicit and occasionally explicit statements concerning what is and is not just within the statutes themselves; the glosses on the statutes, especially within a common law system, by jurists and other officials of the system; the idealizations of the justice of the system, often involving reformist suggestions for its modification, by theoreticians; and the rough-and-ready, commonsense con- ceptions of that same justice that are held by the subjects of the system, or at least by that segment of its subjects who either belong to the dominant class or, not belonging, nevertheless accept its dominance. The meaning of 'jus- tice' is certainly not univocal across all these levels. Moreover, as I have said, there is a horizontal complexity about justice that goes to the heart of the Marxian conception of dialectic: practical contradictions are constantly de- veloping within the capitalist mode of production in its unfolding through time, through history. Consequently, it is totally inadequate for Marx to say that justice consists in the correspondence between a given concrete transac- tion and the mode of production dominant at the time, because this seems to imply that the mode of production is a rigid, inflexible structure within which certain practices either fit or do not fit; it is obviously not so simple as that. Rather, if dialectical processes are at work in every sector of a society, we would expect dissonances to develop among the various ideological for- mulations of the dominant conception of 'justice,' reflecting the dissonances in the socioeconomic structure itself. This, of course, is in fact what happens constantly.

At this point, Engels's remarks concerning the senses in which the demand for equality may be legitimate, from a proletarian standpoint, should be recalled. He spoke of the proletariat's "drawing more or less correct and more far-reaching demands" out of the bourgeois demand for equality. I see no reason for not extending this pattern to the area of justice. Conflicts among different conceptions of justice within a capitalist framework might well be utilized to demonstrate the limitations of that framework itself. One possible way of expressing the results of such an approach would be to say that

retaining a two-dimensionality in our understanding of such abstract terms if we wish to be genuinely critical thinkers. As he says: "The Socratic discourse is political discourse inasmuch as it contradicts the established political institutions. The search for the correct definition, for the 'concept' of virtue, justice, piety, and knowledge becomes a subversive undertaking, for the concept intends a new polis" (p. 134). The situation of Marx is more complicated, of course, inasmuch as he is "intending" a postpolitical society, rather than a new polis. And I have found, in rereading One-dimensional Man, that Marcuse feels much more at home with discussing such concepts as 'equality' and 'freedom' than with discussing justice. Nevertheless, he has performed an important service in showing that Marx's thought lies within the old tradition of Socratic- Platonic dialectic in some very important respects.

215 The Concept of Justice

injustices, in terms of capitalist conceptions of justice, are bound to occur within even a perfectly functioning capitalist system, or that such a system can in principle never satisfy its self-generated "demands" for justice. If this can indeed be shown, then it might well be sensible to follow Marx's and Engels's advice and Marx's nearly exceptionless personal example, in his writings,'7 and to retire the very term 'justice' from our vocabularies. But in the meantime it would have served one last, useful function in abetting its own self-destruction, and it could not have been used in this way if it had had a purely univocal meaning that was purely internal to the capitalist system.

Realistically speaking, of course, there is little chance indeed that justice-talk will disappear from the discourse either of ordinary individuals or of political philosophers (better expressed, perhaps, "either of political philosophers or of other ordinary individuals") in the foreseeable future. Certainly not in this country, in the eras of Watergate and Rawls. Certainly not in the Soviet Union, where the expression, 'Soviet justice,' is used with as little hesitation as is the expression, 'Communist ideology,' despite all the pejorative connotations that Marx and Engels attached to the term 'ideology.' Moreover, Marx and Engels were not interested in posing as mere language reformers; they anticipated the withering away of justice-talk as only one by-product of a possible future fundamental social change from capitalism to socialism. (Coincident with this change would be both an increase in abun- dance, resulting in a diminution in the importance of those problems of distribution that have traditionally been linked so closely with justice, and the famous withering away of the state and its legal system, for which the invocation of 'justice' has always been one of the strongest ideological de- fenses. But it is impossible to discuss in detail in this paper the full range of factors supporting the Marxist belief that the transition to socialism would obviate references to justice in a future society.)

Such a fundamental change would have to be a collective one, not the result of a decision by just a few individuals. On the other hand, the fact remains that Marx and Engels, especially Marx, did provide what I have called personal examples of how to undertake extensive discussions in the area of social and political theory while making scarcely a single reference to 'justice.' It is an interesting specific and concrete illustration of attempting to cope with the revolutionary's dilemma: the need simultaneously to live somehow in the anticipated future, with its new patterns of life and even speech, and to function within the structures, including the linguistic struc- tures, of the present social system. Some of the puzzlements with which I have been grappling concerning possible uses of the term 'justice' within a Marxian context can better be understood in the light of that dilemma.

17. References to 'justice' must be clearly and carefully distinguished from talk of historical "justification" of certain actions and practices. The legitimacy or illegitimacy of such talk is a rather different issue, though there are points at which it touches on the present one. Marx did not, on the whole, place much stock in the metaphorical personification of History as the Supreme Judge, the Final Arbiter of justice. But he did, of course, see the passage of events as clarifying the comparative worth of acts.

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I would like to conclude this paper by referring very briefly to two individuals who are very much alive at present in the general area of Ameri- can political theory; one of them shares the Marxian conviction concerning the ultimate eliminability of justice-talk, though he shares relatively little else with Marx, whereas the other has repopularized justice-talk with smashing success. The latter, of course, is John Rawls, to whom I have already re- ferred on several occasions, and the former is the philosopher and Nietzsche translator Walter Kaufmann, in his recently published book, Without Guilt and Justice.

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The Rawlsian world view is thoroughly permeated with a species of mitigated Platonism. What else is one to think of a writer whose first sentence in section 1, chapter 1, reads: "Justice is the first virtue of social institutions, as truth is of systems of thought," and who concludes the paragraph in which this occurs by saying: "Being first virtues of human activities, truth and justice are uncompromising"? '8Or who concludes, nearly 600 pages later, with a reference to the perspective of eternity, followed by the moving words: "Purity of heart, if one could attain it, would be to see clearly and to act with grace and self-command from this point of view"?19 In between, of course, there are many meanderings, and Rawls has absorbed and incorpo- rated all the standard objections to classical Platonism. For detailed criticisms of some of the most salient of these meanderings, I can only refer to my review of A Theory ofJustice in The Yale Law Journal;20 it would be impossible for me to repeat them here. There is an implicit, rudimentary sense of historical relativity in Rawls's thought, in the sense that he sanctions a sus- pension of the normal "lexical ordering" of his two basic principles, accord- ing to which equal liberty for all is to be secured first and an equitable distribution in conformity with his so-called difference principle second, in early stages of civilization in which it may seem reasonable to restrict liberties to some extent. But, he says, "Eventually there comes a time in the history of a well-ordered society beyond which the special form of the two principles takes over and holds from then on."'21 The very fact that present-tense lan- guage is employed here to describe a development that, from the point of view of actual history as we know it, is a pure idealization shows how little Rawls's thinking has been influenced by the sorts of considerations

considerations, for example, about the uses to which ideologies of justice have been put and even about the etymological histories of the word and of its equivalents in other languages-that have been most influential in think- ing about justice within the Marxian tradition. For Rawls, there will always be a justice; any suggestion to the contrary is unthinkable.

18. Rawls, pp. 3-4. 19. Ibid., p. 587. 20. "Social Theory Sub Specie Aeternitatis: A New Perspective," Yale Law Journal 81, no. 5

(April 1972): 980-1003. 21. Rawls, p. 542.

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The situation is quite different in the case of Walter Kaufmann. He has absorbed, while retaining a critical stance toward, some of Nietzsche's theories about the origins of justice, and he is impressed by the impossibility-in small, apparently manageable situations as well as on a society-wide scale-of making exact determinations concerning distributions of goods according to any criterion of merit or need. Thus, he attacks the concept of distributive justice as the last bastion of the historical concept of justice as such, and he looks forward, as Marx and Engels did, to a world in which ideological talk about justice will have ended. Unfortunately, how- ever, Kaufmann sees no inconsistency in expounding such a vision and at the same time preaching the gospel of what he calls "the New Integrity," in which four virtues-love, "humbition" (his neologism for a combination of humility and ambition), courage, and honesty-reign supreme.22 In doing this, he shows that he has not absorbed the spirit either of the Marxian critique of ideological thinking or of Nietzsche's vision of a culture "beyond good and evil"-two intellectual achievements of the nineteenth century that, as increasing numbers of scholars are coming to recognize, have a great deal in common in their critical aspects (which are the more important as- pects for both). There is nothing particularly radical about Kaufmann's vi- sion of the future; there cannot be, since his principal concern remains, in the spirit of much of early existentialism, individual moral conduct, and the political dimension enters into his thinking only incidentally, in large mea- sure because of the felt need to undertake a critique of justice. His example is an interesting one for us to have taken note of, however, because it illustrates how difficult it is to walk the tightrope between absurdity and banality when one attempts to reexamine in depth a concept so deeply ingrained in our thought and language as justice is-particularly when one goes about it with the passionate attitude of the moral reformer.

Most difficult of all, perhaps, is to try to imagine a world in which justice-talk would no longer be heard, not even among political theorists -except, perhaps, among historians of the discipline. No compulsion would be felt to place a verbal halo around positive, socially beneficial actions or rules that we might now tend to label "just." The hypocrisy level would have been considerably lowered; the famous sentence, "But it would be wrong!" would be regarded as a quaint anachronism. It is all simply too much to try to imagine. Still, our mind-bending efforts may receive some encouragement from one brief reflection on Plato's Republic, the most formidable of all writ- ings on justice, with a reference to which this paper began. Plato, it will be recalled, analogizes justice in the state to justice in the individual. In fact, ostensibly at least, Socrates makes his detour through the territory of the Republic in order to gain a clearer vision of what might be meant by justice in the individual. It is often forgotten, because Plato is so familiar to most Western political theorists, that there is a serious difficulty in trying to render

22. Walter Kaufmann, Without Guilt andJustice (New York: Peter H. Wyden, 1973), p. 184.

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Plato's basic schema contemporary. For the expression 'a just man' or 'a just woman' is an archaism, and there is no other phrase in our language (or, to the best of my knowledge, in the other major modern Western languages) that fully translates Plato's intended meaning, when he speaks of justice in the individual, that does not itself strike one as somewhat quaint or old- fashioned. In this one respect, then, we may be slightly less ideological in our thought and speech than our ancestors were. Is it not barely possible to conceive of a future in which the same state of affairs would obtain on the level of social 'justice,' as well?