Justivus: A Holiday to Celebrate Adam Smith’s Three Kinds of Justice

In a Seinfeld episode, George Costanza’s father, frustrated with the commercialization of the end-of-year festivities, creates a new holiday called “Festivus,” celebrated on December 23. Its aim: to recapture the true spirit of the holidays. The episode was such a cultural phenomenon that Festivus made the improbable jump from fictional holiday to real holiday.

With Festivus as the mold, I am taking my own shot at creating a new holiday. I am calling this holiday “Justivus.”

Justivus is against commercial expressions of justice that have emerged in much social justice talk. The holiday is intended to rediscover a more coherent framework of justice, one that may better judge the goodness of ourselves, others, and the policies which bring us (or throw us) together as a “society.”

The celebration of Justivus, like Festivus, proceeds in three stages. Each stage corresponds to a justice in Adam Smith’s The Theory of Moral Sentiments (1757), and is aided by the reading of that text by Dan Klein.

The Bare Thing of Justice

Seinfeld’s Festivus begins with the erecting of a bare aluminum pole. It is aluminum because of its strength-to-weight ratio; it is bare because tinsel is a distraction.

There is a justice which is the metaphorical aluminum-pole-of-all-justices. It is called commutative justice (CJ), or the justice of ownership, exchange, and promises due.

CJ has long been treated as having a special nature. For Smith, it is that plain sense, that “mere justice,” a violation of which “calls out the loudest for vengeance and punishment.”

CJ is achieved simply through each of us “abstaining from what is another’s.” Or as Klein writes, CJ is “not messing with other people’s stuff.”

This justice is the most “precise and accurate” of justices, the least contentious. Any given society can coalesce to a workable sense of CJ as it does to a sense of grammar.

CJ is like the Golden Rule. Murder, physical harm, false imprisonment, and slavery are all messing, as are actions which happen through the economic market: theft, fraud, cartel and government manipulation of prices, and the prohibition of voluntary exchange, et cetera. Each violates the potential of “person, possession, and promises” in the pursuit of plans, hopes, and dreams.

The origin story of civilization is wrapped up in CJ, as are the rebirths of nations. CJ consists of the “self-evident” truths in the pronouncement heard around the world for “life, liberty, and the pursuit of happiness.”

Justivus erects the aluminum pole of CJ.

The Airing of Grievances

The second stage is the “airing of grievances.” Here Smith’s second justice will be of service.

Smith’s second justice is distributive justice (DJ). Smith describes it as “proper beneficence, the becoming use of what is our own…to those purposes either of charity or generosity.”

DJ occurs when we let flow from our person that which is good for humanity. DJ charges us with showing compassion, energy, attention, love, knowledge, approval, voice, charity, et cetera. DJ is the charge of being truly social in society, of offering social capital—something beyond labor or human capital.

To fail to use properly what we have is to fall short in DJ. For example, to stay silent when we have special knowledge is to fall short. To acquiesce to worrisome social trends does the same. Therefore, Justivus allows us to air grievances where they may be helpful.

The perennial first grievance of Justivus is a simple one: our aluminum pole has become the “forgotten justice.” CJ trends toward obscurity while a thing called social justice (SJ) has risen into the general education requirements of our universities. “Social justice” is now uttered 185 times as frequently as “commutative justice.” Yet, as will be seen in stage 3, SJ cannot be sensible without CJ.

The Feats of Strength

The third stage is the “feats of strength.” In Seinfeld it involved family members wrestling.

Here we add Smith’s third justice. We may call it estimative justice (EJ).

EJ is the proper estimation, or assessment, of things. Smith’s overt example is art. One generates EJ for oneself and for the object (and for the object’s maker) by appreciating it. To appreciate the magnificence of the world rewards the self and the other; it encourages more. To condemn the horrors is to discourage their existence.

EJ is the act of wrestling with the merits and demerits of things—to include claims of acts of justice. And thus the feats of strength take place when we come together, assess with EJ, and debate the merits of acts throughout the year.

EJ starts by assessing the nature of the justices themselves.

Adding DJ to CJ is very unlikely to create any great threat. Adding charity and kindness, for example, to security of possessions is apt to make for a better world (but maybe not always). DJ tends to be additive, Pareto improving.

EJ is tricky. It can be beneficial when it comes from a place of knowledge and sensitivity, and when exercised in proportion to the object. Attempts at EJ can get ugly: enthusiasm-induced amnesia from a Taylor Swift concert, or robust criticism of a 9-year-old in a Native American costume at a Chiefs game. EJ, in application, can be either additive or subtractive, either social or woke.

SJ is trickier still. We first need a workable definition, but in practice it tends to be a “catch–all justification” for any sort of action or policy. Still its most basic element can be identified. SJ typically involves the government. Smith’s DJ is voluntary; SJ is coercive. SJ relies on the government, as agent, to redistribute joys and to apply a supposed evening of the playing field.

The merits and demerits of this governmental SJ are perhaps best revealed by its necessary assumptions. Among those are that 1) all people have worth and tend to be a product of circumstances, 2) the market contributes to unfair circumstances (due to historical or modern imbalances), 3) government has the practical ability and knowledge to improve the circumstances, and 4) nobody but the government can improve the circumstances.

Smith was an early and remarkable champion of 1. (He was also an early abolitionist.) He clarified that 2 is typically due to prior governments’ not respecting CJ, as opposed to a flaw of markets. And he found little merit in 3 and 4.

Smith’s approach, then, to a greater society was his threefold justice system and the ideation of a government respectful of it. The continued virtues of markets and the misbehaviors of governments and cronies have generally proved him right.

Bigotry and disadvantages undeniably exist today, and we should attempt to move beyond CJ. Sympathy naturally calls us to take action, as Smith rightly stated in the first sentence of The Theory of Moral Sentiments.

Yet SJ’s call can be a siren song. The confident technocrat almost certainly lacks the knowledge and incentive (or even approval!) to identify injustices properly or fix them—or, even more challenging, to fix them without breaking other justices.

When the government sings SJ we must take heed to bind ourselves to that aluminum pole, lest we wreck upon the rocks.

The just and generous Walter Williams held firm to CJ. He used to say something such as, “If you can tell me which part of my money is yours, I will give it to you.” After we affirm CJ, we can then get to the business of trying, face to face, to wrestle with proposals for individual and collective action. The time is ripe for Justivus. 2023 was yet another year of SJ doing daily violence to justice. SJ enthusiasts from San Francisco State University violently attacked and held hostage swimmer Riley Gaines for her resistance to men playing in women’s sports. (The school even sympathized with the students.) Harvard, it was judged, took spots away from Asians for more favorable minorities. California mandated that its fast-food restaurants pay a $20 minimum wage—an act sure to harm more than it helps. BlackRock’s ESG investment approach risked investors’ money while still failing its SJ mission. And so forth. For all their good intentions, these examples demonstrate the trifecta of injustice: they harm CJ and embarrass DJ and EJ.

CJ gives life and livelihood. DJ helps the becoming of our best. EJ helps find wonder and awe in the good of the world. These are a regular Maslow hierarchy of justices. Yet SJ threatens each.

Conclusion

Justivus is intended to be an annual event, but it has no precise date. DJ would suggest one sets it for when it may have the greatest effect: a specific class, a workshop, a club gathering, a gathering of the extended family. Justivus can be the playful, structured, safe way to be able once again to “talk religion and politics” around the table.

One can prepare for Justivus year-round. To appreciate CJ better, one may consult the great empirical narratives of economic history so well surveyed, for example, by Jared Rubin and Mark Koyama. For DJ, one may take inspiration from the courageous voices of Friedrich Hayek and Ludwig von Mises against communist sympathies (and more recently Phil Magness against The 1619 Project and intersectionality). For EJ, one should browse Deirdre McCloskey’s telling of the important historical shift toward esteeming the moral worth of markets.

“Justivus for the rest of us!” is the carol of Justivus because so many reasonable voices have been lost in the cacophony of SJ-talk. But ultimately the goal is discourse and analysis which can lead us more reliably towards Justivus for all of us.

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