Nicholas Wolterstorff and George Grant -- by Henry Smidstra

In response to my review of Nicholas Wolterstorff’s book, Justice: Rights and WrongsJustice: Rights and Wrongs Ron Dart asked how this book compares to, or differs from, George Grant’s book, entitled English Speaking Justice, 1974. That will take some effort at recall, as it has been a while since I read Grant’s book. I thank Ron for asking that question in that it is making me realize the amount of work I still need to do to grasp the justice and human rights issues, especially Grant’s critique of contractual justice (contractarian, the “social contract” concept) of liberal democracy. Wolterstorff does not address the topic of the social contract. 

Now, I am not an expert in the discussion on human rights, coming at it from reading and research on criminal justice and restorative justice. I am also coming at the topic from a still developing, personal theological and historical perspective, having being raised and educated in a neo-Calvinist tradition. Ron’s question, I am coming to realize, is tremendously important for my personal contemplation, and also for wider dialogue on justice issues. I have come to see that justice and politics are intimately related, a multifaceted reality of life, like faith, not merely a personal and private affair between me and God. There are numerous perspectives on justice and some paradoxical strands of theory and practice in my own Reformed and Evangelical tradition. I am convinced that our emotional intelligence and cognitive frameworks, as related to personal models of justice, are intimately linked to the kind of “politics” we experienced in our families and communities of origin. To think differently about justice and the role of the state, as both are intimately interconnected, takes considerable introspection and contemplation. I have learned much about the role of the state by taking a close look at the criminal justice system and its last “door”, the prison, the execution chamber of life-time, as implied by the neo-classical maxim, “you do the crime, you do the time.”

From my notes of reading Grant’s book quite some time ago, I would say that both he and Wolterstorff definitely agree on the transcendent value that God places on all human beings by virtue of His creation and love. They also underline that goods precede rights, and not as in the liberalism’s apothegm, that rights precede goods.  Justice is what we are due, or as Grant puts it, justice is what we are fitted for. Justice is ours, not by virtue of a personal choice and contractual agreement, but by virtue of the value God has inhered in us and in all humanity, as Wolterstorff suggests. Wolterstorff also notes that rights are relational, responsive unconditionally to others as human beings, to serve human flourishing; rights are normative social bonds. He denounces possessive individualism, and he explicates in detail how Stoicism, with its vital interest in personal tranquility and self-control, so to express justice, cannot be grounds for the concept of justice as inherent rights. However, Wolterstorff has little to say about liberalism, the social contract, or about John Rawls, the modern advocate of contractualism, or contractarianism. Grant on the other hand is explicit in warning about the weakness and danger of liberalism’s flower child, the social contract. Liberalism’s concept of the social contract seeks to serve individual happiness, but ultimately destroys the social fabric of the common good.

It seems that Wolterstorff is reticent to speak on areas other than moral philosophy; his focus is on rights relating to the interpersonal realm of life, and he does not declare himself in the area of political or economic philosophy. Perhaps there are other reasons for his avoidance of discussing the social contract and the modern political economic belief systems that support the cash-cows of modern technological society. He suggests that Rawls is probably an inherent rights theorist, and not a right order theorist, but does wonder if Rawls’ project of a non-transcendently grounded theory of justice will succeed. Wolterstorff maintains that only a theistically grounded notion of rights can safeguard the unconditional worth of all human beings. However, I would like to see how Wolterstorff would intertwine his theory of individual inherent rights with the public, political-economic spheres of society. I found him “evading” in the issue of retributive justice. Public, rectifying justice (retributive) is generally considered the sole responsibility of the state; and, likewise, I suspect, in the public political realms for Wolterstorff, justice is to be regulated by social contract, that the rule of law is sufficient and sovereign, facilitated by the state for the benefit of the individual.

George Grant clearly does not endorse the concept of the social contract as a way of governance for public life. Grant declares that justice is what we are fitted for based on transcendent Good, and he clearly distinguishes this good from justice grounded in the social contract.  Liberalisms’ rule of justice has become wholly contractual and abstract, absolutzing faith in contractual technology, in the service of techne, according to Grant.  Horizontal ordering of life by contract within the public for individual interest, gives, gives technology free reign in the gap between the individual and the fabric of social and national life, for unrestrained service for profit and progress: not in the service of primary good for public human life.  Justice as a good for which human beings are fitted, loses its transcendent grounding, sacrificed to utilitarian pragmatism for economics’ sake. Without a transcendent grounding, there is a moral vacuum as a result, and social contracting makes ends up as it goes; morality becomes whatever public opinion or public confidence happens to be.   Grant passionately prophetic, out of concern for the common good of human life, alerts us that in our modern liberal society, “winning is not only everything, it is all there is.”  And, I add, so much for the good of those Christ advocated for, societies’ losers.  Grant bids us to be vigilant and consistent for the moral transcendent nature of justice as what we are fitted for, not just in one’s personal private interests, but especially in our public life of economics and justice for the common good.  We will need to change the way we think about justice. We cannot solve modern problems of poverty, and crime and punishment, by the same thinking that created the problem in the first place. We may need to look at pre-modern wisdom here.

Wolterstorff spends very little time on Rawls, or on theory of the social contract, and I suspect that Wolterstorff is implicitly contractarian in his political philosophy; whereas Grant adamantly adheres to a non-contractarian transcendent orientation for justice, and prophetically critiques public resource development as it proceeds unhindered in serving the pursuit of individual happiness. Wolterstorff offers little direction in the area of public, political policy of “possessive individualism”.  Both George Grant (Lament For a Nation,1965) and Ron Dart, (The Canadian High Tory Tradition: Raids on the Unspeakable, 2004)) point out  that the traditional Canadian political focus on the common good has moved  toward the American Republican tradition of autonomous freedom for the pursuit of individual happiness.  Justice becomes merely what human beings can agree on with laws of their own creation, constrained only by the libertarian utilitarian creed of negative rights. A basic challenge for us is to look at how the 16^th 17^th century concept of the social contract, as well as its modern applications, relate to a theistic or transcendent source of authority for all of life. How justice as inherent human rights and the common good fit together harmoniously. How do Calvinists, evangelicals, and Christians generally, relate to the values and attraction of liberalism’s creed of unfettered progress and wealth for autonomous individual self-interest? Also, what theoretical model do they think and act from in terms of criminal justice?  Here I wish Wolterstorff would intertwine his theory of primary relational justice as inherent rights, with justice in the political and social economic public sense as justice for the common good of  all human beings, for as Wolterstorff declares, all are precious in God’s sight.

Grant suggests that Calvinists especially, are susceptible to contractualism; could it be that Calvinists, who find liberalism and humanism abhorrent, are latent liberals anyway, favouring libertarian creeds of individualism and unfettered free enterprise? The sovereignty of God is a matter of confession by Calvinists, and no doubt their social political stance reflects an implicit individual responsibility in the social contract they have “signed on to”; but how does that relate to all the other autonomous contracts being made in the community and society in which they live and move and have their being?  We no longer live in the largely homogenous, yet socially stratified, cultural and social systems of the 16^th 17^th and 18^th centuries when the social contract made its way into social political life and thought. By 1688, after a century of immense change and conflict, at the “victory” of the Glorious Revolution, law and contract was king, and Kings were mere figure heads; the sovereignty of God was transferred to inhere in the laws and contracts made here below on earth, usually to benefit the realms of estates of the emerging managerial class for profit in the newly developing economic and industrial structures. A new paradigm was born, sovereignty for the individual, versus state authority. Modern liberal thought focuses on the individual and the economy. However, I will add, the utility matrix, rational choice, the social contract, and retribution, are also the foundation of the modern criminal justice system.  Using Wolterstorff’s suggestion that we need to change the way we think about justice, I will extend to both our thinking on social justice, and to criminal justice.

British Criminologist, David Garland, in his insightful book, Punishment and Modern Society,1990, uses the image of a palimpsest in attempting to capture the multiplicity of factors in penality. A Palimpsest was used as a rewritable manuscript , however, after each use a residue of old script remained on the parchment, and after numerous uses, there were many invisible traces of old narratives along with contemporary images. I suggest that this is an apt way to think about modern political economic philosophy as well.  Imbedded in the script of the social contract are the old narratives of fear, one of fear of earthly governments, and the other fear of humanity.  There is an inherent phobia about “big government” that intervenes in the affairs of personal freedom; and there is a fear of people, especially the masses who must be restrained by the state otherwise chaos will return to earth, with vagrants and knaves, all depraved, rising up and disturbing the social order. So two main roles for the state: to punish the wrongdoer, and to maintain a social order in which the economy of each individual can flourish. The fathers of state formation and the social contact of the 16^th, 17^th and 18^th centuries, men such as Hobbes, Locke, Paine, and Kant, wrote under the influences of the conditions of their time. However, some of their old scripts of fear and bias are still implicit in social contract theory today.

Perhaps the folks that drew up this philosophy for public governance knew little what they were getting in to. The fathers of 17 and 18^th century state-formation created a bifurcation of authority and power; that of the State was differentiated absolutely from that of the church, and thus social theories were isolated from any direct explicit religious direction. No wonder then that there is a moral vacuum, a disconnect, between the lordship of Christ, and His cause for justice, and the state; Christ was champion of the poor and marginalized. Christ certainly did not walk around in fear and loathing of the masses either, he joined in with them as incarnated God. He did not demonize people, he humanised them. He did not place people on pedestals and enthrone them as autonomous individuals either. He treated them with worth, addressed real existential creational needs within the social political context of that time. Neither Christ nor St. Paul glorified the rule of the state, not Caesar, nor the Sanhedrin; they did not demonize the state either. The state is to be servant for the Good; the state has a transcendent, theistically grounded, mandate to serve for the common good. Abuse of this mandate does happen, but that does not annul the state sovereignty altogether.

 Social contract thinking is linked to the 16^th and 17^th century struggle for freedom from oppression of the doctrine of divine right of kings at that time in history. However, sovereignty was reduced to the individual who chooses, regulated by new laws and the implicit social contract. The resulting technology for governance via the social contract was an individual calculation to choose for personal pleasure and to avoid pain of retaliation should wrongs be done: the calculation was to serve deterrence.  By personal conscientious contract, individuals join in an implicit social consensus of individuals, individually agreeing to abide by the restrictions to individual freedom to avoid pain.  Anyone who violates that contract has chosen the hard punishment of the law to be enforced and administered by the magistrate. Thus the baby of a transcendent grounding of justice has been thrown out with the bath water of the struggle for personal liberty; and, now in the 21^st century, contractual separation of the individual and politics, the driving force of modern technology has achieved a virtual oppressive life of its own.  The individual is now at the mercy of technology, and the social fabric is frayed by social distance.

 Violation of the social contract is now also the grounds for retributive justice, by design of the liberalism’s classical school of criminology of the 18^th century as crafted by Beccaria and Bentham. They combined the rational calculus and the apothegm of utilitarianism: choosing pleasure versus pain, “lightning calculus”. Violating the social contract was grounds for punishment; equally for all. However, we know, then as now, that equality of resources is a myth, and the rich get a good lawyer and counselling, while the poor and “undesirables” get jail.  Criminal acts are theorized to be failures of  personal utilitarian calculus, of rational choice; wrongdoers are assumed to be absolutely healthy and rational all the time, and simply bring punishment onto themselves. No need for compassion or empathy here, they made their bed so to speak. To be clear, oppression by any ruler, or harmful violation of another and the common good, is not part of God’s intention for life, and demands rectification. God’s design for the common good is for life flourishing. Our modern criminal justice system, built on liberalism’s design of individual rationality, the social contact, and deterrence, has created more war than peace, and the common good is wanting.

In speaking casually with people, many comment on politics, on what’s going on in Ottawa or Victoria, as much as they might about the weather.  Two topics often come up: crime, and the economy. What I hear are passionate opinions, implicitly reflecting certain theoretical models of justice and state that are believed to be morally right. Personally, I have come to understand the criminal justice system, from experience and study, as the coercive power and monopoly of the state, one of the most legal invasive powers in society over personal freedom and human and civil rights; a coercive power, I insist, we should use as seldom as possible and sparingly. The state does have an important role in providing alternatives here, however, but there is usually considerable disagreement about the role of the state in distributing resources and facilitating justice.  We have a right to the goods of personal freedom and safety, and so do all our neighbours. How we respond to wrongdoers defines us, and reflects our assumptive world view of the state, the economic, and the punishment system.  David Garland suggested we think of our present practice of crime control as civil war in miniature, revealing a struggle within ourselves.  Wars are declared, which by contractual consensus we actually wage on ourselves, for we are all co-human beings, image bearers, neighbours, all our own flesh and blood. Modern liberalism seems to declare war on almost everything, on crime, drugs, poverty, especially if wrongs violate the profit or property principle. Reflecting on what Dostoyevsky and Churchill implied when they suggested that the measure of a nation’s civilization or social health is revealed by looking inside a nation’s prisons. Jesus implied that a nation’s justice is indicated by the health and wellbeing of its poorest members, not society’s notion of righteousness. The common good is not indicated by looking at the bottom line of an aggregate sense of contracted individual self-satisfaction, or the balanced nature of a nation’s economy.  It seems to me that we need to look at the more excellent way that St. Paul suggested the way of love, of compassion, and of reconciliation, nourishing healthy community and national life; a more ancient way of looking at justice, the state and the common good.