Robin Paul Malloy identifies and describes “three pillars of civil society” (p. 5) in Chapter 4 of Law and the Invisible Hand, three key concepts that appear in various parts of the work of Adam Smith: utility, authority, and justice. In brief, “authority” (pp. 41-44) refers to the power of the sovereign to resolve disputes and protect one’s person and property, while “utility” (pp. 44-49) refers to propriety of the methods used by sovereign to perform these essential tasks (i.e. society as a whole is better off when disputes are resolved peacefully and when everyone’s personal safety and property are protected), but of these three pillars, Malloy devotes the most space to “justice” (pp. 49-57). According to Malloy’s interpretation of Smith, “justice” refers to the protection of one’s person and property and is the most important of these three pillars, the one that holds the edifice of society together (p. 40).
This tripartite picture of “civil society” is no doubt a useful and reasonable one, but is it really the picture that Adam Smith himself would have painted? I pose this key question here because Smith himself never developed a theory of justice. Yes, Smith acknowledged that one of the principal duties of the sovereign is “to protect, as far as possible, every member of the society from the injustice or oppression of every other member of it.” [See The Wealth of Nations, Glasgow edition, pp. 708-709 (para. 1).] And, yes, Smith defined justice as “a mere negative virtue” (i.e. not harming others) in his treatise on moral sentiments. [See The Theory of Moral Sentiments, II.ii.1.9.] But as I mentioned in a previous post, Smith never completed his promised book about law and justice.
Furthermore, to equate justice with restraint from harming others (justice as a negative virtue), as Smith does in The Theory of Moral Sentiments, or conversely, to equate injustice with oppression, as Smith does in The Wealth of Nations, is not enough to build a full-fledged theory of justice. Why not? Because one man’s harm or oppression is another man’s natural liberty! We therefore need to define what forms of conduct constitute “harm” and what types of acts constitute “oppression”, and we also need to identify the circumstances, if any, in which such harms and acts of oppression can be justified or excused. In short, at a minimum, we need a theory of harm as well as a theory of justification and excuse.
Perhaps, however, we could we use one of Adam Smith’s three metaphors–the invisible hand, the man in the mirror, or the impartial spectator, or some combination thereof–to fill this massive gap in Smith’s work, i.e. to develop “a Smithian theory of justice.” As it happens, this is precisely what Professor Malloy attempts to do in Chapter 5 of Law and the Invisible Hand, his most original and thought-provoking chapter. In the alternative, perhaps this gap in Smith’s work was an intentional one; that is, perhaps Smith came to believe that developing a comprehensive theory of justice would be a complete waste of time! Either way, I will proceed to Chapter 5 in my next blog post.