“Social justice”—the goal of a host of progressive projects, from opposition to mass incarceration to the #metoo campaign against sexual assault to immigration reform—combines the political imperative of egalitarian social change with the legalistic ideal of justice. The civil rights litigation of the mid-20th century is a paradigm of social justice: Law and lawyers achieved dramatic reform within the established institutions of the very political order they sought to challenge. In this, social justice movements represent our Constitutional democracy at its best, part of a remarkable political order that contains within itself the mechanisms of self-correction that can produce non-violent paths to durable social change that gain widespread acceptance by association with familiar and conventional procedures and rituals.
But some of the appeal of social justice comes from the comforting but misleading implication that political and social reform can be as orderly as the day-to-day justice that lawyers, courts, and judges typically dispense; that the victims of bigotry, intolerance, and systematic exploitation could be “made whole” as readily as the victims of, say, negligence or burglary. This is rarely so.
Worse, the legalistic conception of social justice can imply that only a discrete group of wrongdoers and their victims need be involved. But many practices contribute to inequality and injustice, not by needlessly injuring members of vulnerable groups, but instead by forcing them to bear a disproportionate share of unavoidable costs that should be more equitably spread: for instance, the tensions involved in interactions between police and minority communities, or in workplaces where some romantic encounters are welcome and others are abusive. Accordingly, a large number of today’s social justice claims involve not only demands to eliminate objectively harmful behavior but also demands to redistribute the unavoidable burdens of day-to-day social interactions—something that requires changes and sacrifices from people who don’t seem like bigots, predators, or wrongdoers. This inevitably strikes some people as unfair and a good reason to reject the demands, but from the perspective of the groups seeking social justice, it’s much fairer than the status quo, which leaves them bearing a disproportionate share of the burdens.
For instance, typical police practices—to say nothing of more aggressive “broken windows”-type policing—harm many innocent members of heavily policed communities by subjecting them to humiliating, intimidating, and potentially dangerous encounters with often-aggressive police officers. Because of the importance of crime prevention, the law typically allows police to act with impunity unless those injured by policing can prove animus, recklessness, or bad faith. This limited legal recourse doesn’t come close to covering all of the costs that even well-justified law enforcement practices impose on heavily policed communities: Typical police preventative surveillance and investigation inconveniences and intimidates many innocent people, and sometimes even diligent and fair-minded police will mistakenly detain, arrest, or use force against the innocent. Social justice movements like #blacklivesmatter don’t just demand that bigoted or abusive officers are held responsible, they also call for law enforcement (and, indirectly, taxpayers) to bear a larger share of these collateral costs—spending additional resources to avoid conflicts and mistakes and to compensate victims—instead of leaving them to fall disproportionately on minority communities.
Or consider #metoo and the campaign against sexual assault. Naturally, the effort began with unambiguous serial predators like Harvey Weinstein. But pretty quickly it began to also target less clearly culpable offenders, including some whose only transgression was failing to promptly stop harassment by others, like Representative Brenda Lawrence, who came under fire for tolerating the harassment of an aide, or Representative Elizabeth Esty, who was forced to abandon her political career for being slow to fire an abusive staff member. Here, #metoo is not simply punishing bad actors and preventing injury; it is redistributing costs that, from the perspective of employers like Lawrence or Esty, are unavoidable.
For example, preventing harassment requires employers to monitor and possibly intervene in social relationships that most adults of both sexes typically prefer to keep private; responding to harassment can require firing otherwise valued employees, who may respond with their own claims of defamation or wrongful termination. But if employers don’t bear some of the costs of preventing harassment, the targets of sexual aggression are forced to bear all of them: For instance, women regularly have to endure sexual taunts and unwarranted overtures, avoid social engagements that might inadvertently encourage lecherous men, think and rethink their wardrobes to avoid sending the “wrong signal” and, ultimately, just suck it up if all of these tactics don’t work and they are harassed or assaulted anyway. The goal of #metoo is not only to call out unambiguous predators, but also to shift some of these costs from the targets of unwanted sexual advances to their perpetrators and to those who tolerate them.
Sometimes the people asked to bear new burdens in the name of social justice have benefited from the injustices they are asked to help correct, in which cases reform seems like a form of just compensation. But this is not always so: Reform can be hard on all members of an institution and new burdens tend to fall of those best positioned to bear them, not necessarily on those most responsible for past wrongs. That’s how a prominent anti-sexual assault activist like Elizabeth Esty found herself on the wrong side of #metoo.
Viewed in this way, social justice isn’t as neat and emotionally satisfying as courtroom justice. It’s messy and open ended, like politics, where even well justified policies often involve some moral arbitrariness. That doesn’t make it any less necessary, but it does help to explain why our current moment of activism is often disquieting, even for many of those who have long sought the changes it promises.