On Adam Smith's Wealth of Nations by Fleischacker Samuel;

Author:Fleischacker, Samuel;
Language: eng
Format: epub
Publisher: Princeton University Press
Published: 2008-03-07T16:00:00+00:00

38. Critical Jurisprudence and the Problems in Defining “Harm”

If justiciable harm is a socially relative category, it will be difficult to find any laws of justice that must be realized by every society. It will therefore be very hard for Smith’s account of natural justice to get any critical bite on each society’s norms and practices, as he wants it to do. If we swallow the fact that “harms” and “reasonable expectations” are socially structured, what can we say, in the name of natural and universal justice, about the following cases?

a. X is a wealthy man in a society where concubinage is widely accepted. Partly for this reason, he has been willing to enter into a loveless marriage; like many other men he knows, he seeks his sexual pleasure, and has always expected to seek his sexual pleasure, outside of marriage. His concubines have likewise planned their lives around the understanding that concubinage is acceptable: They would not want to be regarded as prostitutes, and if that was the standard attitude toward concubinage, they would have settled for a lower standard of living along with a respectable marriage. X’s wife may suffer under the system, or perhaps she too was willing to settle for his lovelessness, along with his wealth, because she knew that they would not have to be very intimate.

Abolition of concubinage would violate reasonable expectations central to the lives of X and his family, and therefore be unjust to them. Yet concubinage may well itself perpetuate harms that justice should rule out; it may well be that no one should expect to live under such a system.

Suppose now that a reformer arises in this society. She will, first, find it not all that easy to convince others in the society that concubinage really is an injustice—given that the wives and concubines themselves do not necessarily regard themselves as “harmed.” Second, she will face a difficult practical dilemma: How can the sytematic injustices of concubinage be ended without perpetrating individual injustices against the people whose lives are based on that system?15 Given Smith’s strong commitment to the notion of harm as the violation of reasonable expectations, and of injustice as primarily a matter of harm to individuals, he has little help to offer the reformer as regards either of these difficulties.

And that is a serious problem for him. Not only does he himself have to avoid calling concubinage “unjust” when he criticizes it (LJ 151–3), but very similar difficulties arise for other systematic ills that he does regard as unjust, like primogeniture and slavery.

b. Society X castrates some of its young boys, so that they will be fine singers.

Society Y expects its young girls to undergo clitoridectomy, so that they will direct their energies away from sexuality. Society Z expects its young children to participate in violent and risky sports, like boxing or rugby. All of these societies systematically urge their members, at an age when consent can at best be partial, to inflict serious damage on their bodies.

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