Justice concerns the proper ordering of things and persons within a society. As a concept it has been subject to philosophical, legal, and theological
reflection and debate throughout history.
Discussions of justice can be divided into two broad fields. Distributive
justice is concerned with the proper distribution of good things - wealth, power, reward, respect - between different
people. So, for instance, egalitarianism is a theory of distributive justice which says
that the proper distribution of wealth (and perhaps other goods) is an equal distribution: no-one in the relevant group should
have more or less than anyone else in that group. Retributive justice is
concerned with the proper response to wrongdoing. So, for instance, the lex
talionis (law of retaliation) is a theory of retributive justice which says that the proper punishment is equal to the
wrong suffered: "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, wound for wound, stripe for
stripe."[1]
A number of important questions surrounding justice have been fiercely debated over the course of western history: What is justice? What does it demand of individuals and societies? What is the proper distribution of
wealth and resources in society: equal, meritocratic, according to status, or some other arrangement?[2] There is a myriad of possible answers to these questions from
divergent perspectives on the political and philosophical spectrum.
Some theorists, such as the classical Greeks, conceive of justice as a virtue—a property of
people, and only derivatively of their actions and the institutions they create. Others emphasize actions or institutions, and
only derivatively of the people who bring them about. The source of justice has variously been attributed to harmony, divine command, natural law, or human creation. It may be considered subordinate to a
different ethical value.
Virtue or results?
Between a just (or unjust) punishment and the just (or unjust) judge who imposes it, which of these senses is more
fundamental? Justice has been thought, primarily, the morally right assignment of good and bad things (including wealth, power,
reward, respect and punishment); alternatively, it has been thought the virtue of a person who expresses or acts for that right
assignment. Either actions are just because a just person does them, or a person is just because they do just things. The
twentieth-century moral philosopher Elizabeth Anscombe influentially argued that
modern philosophy had gone wrong in focusing on actions and their results over the character of actors, and so inspired modern
virtue ethics, which follows Aristotle in considering
justice as one of the virtues of a good person, and only indirectly as a
property of a state of affairs.[3]
- Further information: Aretaic turn
Understandings of justice
It has already been noted that justice is distinguished from other ethical standards as required and as
overwhelmingly important: Justice can be thought of as distinct from, and more important than, benevolence, charity, mercy,
generosity or compassion. All of these things may be
valuable, but they are supererogatory rather than required. We need to know more than this: we need to know what justice is, not
merely what it is not, and several answers to that problem have been proposed.
Justice is linked, both etymologically and conceptually, to the idea of justification:
having and giving decisive reasons for one’s beliefs and actions. So, attempts to understand justice are typically attempts to
discover the justification – the source or basis – of justice, and therefore to account for (or disprove) its overwhelming
importance.
Justice as harmony
-
In his dialogue Republic, Plato uses the character of Socrates to argue for a single account of justice which covers both the just person and the just
city-state. Justice is a proper, harmonious relationship between the warring parts of the
person or city. A person’s soul has three parts – reason, spirit and desire – and the just person is the one in whom reason
commands the other two and each keeps to its task. Similarly, a city has three parts – lovers of wisdom, soldiers and workers –
and the just city is the one in which the lovers of wisdom rule the other two, and in which everyone sticks to his or her own,
appropriate tasks. Socrates uses the parable of the chariot to illustrate his point: a chariot works as a whole because the two
horses’ power is directed by the charioteer. Lovers of wisdom – philosophers, in one sense of the term – should rule
because only they understand what is good. If one is ill, one goes to a doctor rather than
a quack, because the doctor is expert in the subject of health. Similarly, one should trust one’s city to an expert in the
subject of the good, not to a mere politician who tries to gain power by giving people what
they want, rather than what’s good for them. Socrates uses the parable of the ship to illustrate this point: the unjust city is
like a ship in open ocean, crewed by a powerful but drunken captain (the common people), a group of untrustworthy advisor's who
try to manipulate the captain into giving them power over the ship’s course (the politicians), and a navigator (the philosopher) who is the only one who knows how to get the ship to port. For Socrates, the only
way the ship will reach its destination – the good – is if the navigator takes charge.[4]
Justice as divine command
-
Advocates of divine command theory argue that justice, and indeed the whole of morality, is the authoritative command of a
deity or deities, for instance, the Christian God. Murder is wrong and must be punished, for instance, because, and only because, God commands that it be so.
A common response to Divine Command Theory is the Euthyphro dilemma, which asks: is
what is right right because it is commanded by God, or does God command what is in fact morally right? If the former, then
justice is arbitrary; if the latter, then morality exists on a higher order than God, who becomes little more than a passer-on of
moral knowledge. Divine command advocates have the option of responding by pointing out that the dilemma is false: goodness is
the very nature of God and is necessarily expressed in his commands.
Justice as natural law
-
For advocates of the theory that justice is part of natural law, it involves the system of consequences which naturally
derives from any action or choice. In this, it is similar to the laws of physics: in the
same way as the Third of Newton's laws of
Motion requires that for every action there must be an equal and opposite reaction, justice requires according individuals
or groups what they actually deserve, merit, or are entitled to. Justice, on this account, is a universal and absolute concept:
laws, principles, religions, etc., are merely attempts to codify that concept, sometimes with
results that entirely contradict the true nature of justice.
Justice as human creation
In contrast to the understandings canvassed so far, justice may be understood as a human creation, rather than a
discovery of harmony, divine command, or natural law. This claim can be understood in a number of ways, with the
fundamental division being between those who argue that justice is the creation of some humans, and those who argue that
it is the creation of all humans.
Justice as authoritative command
According to thinkers including Thomas Hobbes, justice is created by public,
enforceable, authoritative rules, and injustice is whatever those rules forbid,
regardless of their relation to morality. Justice is created, not merely described or approximated, by the command of an
absolute sovereign power. This position has some similarities with divine command theory
(see above), with the difference that the state (or other authority) replaces God.
Justice as mutual agreement
-
According to thinkers in the social contract tradition, justice is derived from the mutual agreement of everyone concerned;
or, in many versions, from what they would agree to under hypothetical conditions including equality and absence of bias.
This account is considered further below, under ‘Justice as fairness’.
Justice as less important than we think
According to utilitarian thinkers including John Stuart Mill, justice is not as
fundamental as we often think. Rather, it is derived from the more basic standard of rightness, consequentialism: what is right is what has the best consequences (usually measured by the total or
average welfare caused). So, the proper principles of justice are those which tend to
have the best consequences. These rules may turn out to be familiar ones such as keeping contracts; but equally, they may not, depending on the facts about real consequences. Either way, what is
important is those consequences, and justice is important, if at all, only as derived from that fundamental standard. Mill tries
to explain our mistaken belief that justice is overwhelmingly important by arguing that it derives from two natural human
tendencies: our desire to retaliate against those who hurt us, and our ability to put ourselves imaginatively in another’s place.
So, when we see someone harmed, we project ourselves into her situation and feel a desire to retaliate on her behalf. If this
process is the source of our feelings about justice, that ought to undermine our confidence in them.[5]
- Further information: Utilitarianism, Utilitarianism (book), John Stuart Mill
Eternal Justice
In Human, All Too Human, philosopher Friedrich Nietzsche dismantles the notion
that 'the world' treats everyone fairly:
- One common false conclusion is that because someone is truthful and upright toward us he is speaking the truth. Thus the
child believes his parents` judgments, the Christian believes the claims of the church's founders. Likewise, people do not want
to admit that all those things which men have defended with the sacrifice of their lives and happiness in earlier centuries were
nothing but errors. Perhaps one calls them levels of truth. Basically, however, one thinks that if someone honestly believed in
something and fought for his belief and died it would be too unfair if he had actually been inspired by a mere error. Such an
occurrence seems to contradict eternal justice. Therefore the hearts of sensitive men always decree in opposition to their heads
that there must be a necessary connection between moral actions and intellectual insights. Unfortunately, it is otherwise, for
there is no eternal justice.
Justice as Economics
Justice as a concept has next to no meaning for those who do not have clean water, education, housing etc and are never to
know the justice which comes from having some form of secure income. Thus the appeal of a cry for justice − essentially meaning a
cry for economic justice − which has lain behind movements such as socialism.
However, the redistribution of wealth or income is not a justice in itself because it does not address the question of
efficiently creating the wealth and income in the first place. It is the claim of binary
economics that it does address both the efficient creation and the justice issues by being a market economics whose
markets work for everybody rather than just a few; and which upholds private property but private property, again, for everybody
rather than just a few. A summary might be – a justice which creates efficiency and an efficiency which creates justice..
Theories of distributive justice
Allegory or
The Triumph of Justice by
Hans von Aachen
Theories of distributive justice need to answer three questions:
- What goods are to be distributed? Is it to be wealth, power, respect, some combination of these things?
- Between what entities are they to be distributed? Humans, sentient beings, the
members of a single society, nations?
- What is the proper distribution? Equal, meritocratic, according to
social status, according to need?
Distributive justice theorists generally do not answer questions of who has the right to enforce a particular favored
distribution.
This section describes some widely-held theories of distributive justice, and their attempts to answer these questions.
Egalitarianism
-
According to the egalitarian, goods should be distributed equally. This basic view can be elaborated in many different ways,
according to what goods are to be distributed – wealth, respect, opportunity – and what they are to be distributed equally
between – individuals, families, nations, races, species. Commonly-held egalitarian positions include demands for
equality of opportunity and for equality of
outcome.
Giving people what they deserve
In one sense, all theories of distributive justice claim that everyone should get what he or she deserves. Where they diverge
is in disagreeing about the basis of dessert. The main distinction is between, on one hand, theories which argue that the basis
of just dessert is something held equally by everyone and therefore derive egalitarian accounts of distributive justice; and, on
the other hand, theories which argue that the basis of just desert is unequally distributed on the basis of, for instance, hard
work, and therefore derive accounts of distributive justice according to which some should have more than others. This section
deals with some popular theories of the second type.
According to meritocratic theories, goods, especially wealth and social status, should be distributed to match
individual merit, which is usually understood as some combination of talent and hard work. According to needs-based
theories, goods, especially such basic goods as food, shelter and medical care, should be distributed to meet individuals’
basic needs for them. Marxism can be regarded as a
needs-based theory on some readings of Marx’s slogan, ‘From each according to his ability, to
each according to his needs’.[6] According to
contribution-based theories, goods should be distributed to match an individual's contribution to the overall social
good.
- Further information: Meritocracy, Need,
From each according to his ability, to each
according to his need
Fairness
-
In his A Theory of Justice, John Rawls used a social contract argument to show that justice, and especially distributive justice, is a form of
fairness: an impartial distribution of goods. Rawls asks us to imagine ourselves behind a veil of ignorance which
denies us all knowledge of our personalities, social statuses, moral characters, wealth, talents and life plans, and then asks
what theory of justice we would choose to govern our society when the veil is lifted, if we wanted to do the best that we could
for ourselves. We don’t know who in particular we are, and therefore can’t bias the decision in our own favour. So, the
decision-in-ignorance models fairness, because it excludes selfish bias. Rawls argues that each of
us would reject the utilitarian theory of justice that we should maximize welfare (see
below) because of the risk that we might turn out to be someone whose own good is sacrificed for greater benefits for others.
Instead, we would endorse Rawls’s two principles of justice:
- 1. Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a
similar system of liberty for all.
- 2. Social and economic inequalities are to be arranged so that they are both
- a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and
- b) attached to offices and positions open to all under conditions of fair equality of opportunity.[7]
This imagined choice justifies these principles as the principles of justice for us, because we would agree to them in a fair
decision procedure. Rawls’s theory distinguishes two kinds of goods – (1) liberties
and (2) social and economic goods, i.e. wealth, income and power – and applies different distributions to them – equality between
citizens for (1), equality unless inequality improves the position of the worst off for (2).
Having the right history
Robert Nozick’s influential critique of Rawls argues that distributive justice is not a
matter of the whole distribution matching an ideal pattern, but of each individual entitlement having the right kind of
history. It is just that a person has some good (especially, some property right) if and
only if he or she came to have it by a history made up entirely of events of two kinds:
- 1. Just acquisition, especially by working on unowned things; and
- 2. Just transfer, that is free gift, sale or other agreement, but not theft.
If the chain of events leading up to the person having something meets this criterion, then he or she is entitled to it: it is
just that he or she possesses it, and what anyone else has, or does not have, or needs, is irrelevant.
On the basis of this theory of distributive justice, Nozick argues that all attempts to redistribute goods according to an
ideal pattern, without the consent of their owners, are theft. In particular, redistributive
taxation is theft.
- Further information: Anarchy, State, and Utopia, Economic libertarianism
Welfare-maximization
-
According to the utilitarian, justice requires the maximization of the total or average welfare across all relevant
individuals. This may require sacrifice of some for the good of others, so long as everyone’s good is taken impartially into
account. Utilitarianism, in general, argues that the standard of justification for actions, institutions, or the whole world, is
impartial welfare consequentialism, and only indirectly, if at all, to do with rights, property, need, or any other
non-utilitarian criterion. These other criteria might be indirectly important, to the extent that human welfare involves them.
But even then, such demands as human rights would only be elements in the calculation of overall welfare, not uncrossable
barriers to action.
Theories of retributive justice
Theories of retributive justice are concerned with punishment for wrongdoing, and need to
answer three questions:
- why punish?
- who should be punished?
- what punishment should they receive?
This section considers the two major accounts of retributive justice, and their answers to these questions. Utilitarian
theories look forward to the future consequences of punishment, while retributive theories look back to particular acts of
wrongdoing, and attempt to balance them with deserved punishment.
Utilitarianism
According to the utilitarian, as already noted, justice requires the maximization of the total or average welfare across all
relevant individuals. Punishment is bad treatment of someone, and therefore can’t be good in itself, for the utilitarian.
But punishment might be a necessary sacrifice which maximizes the overall good in the long term, in one or more of three
ways:
- Deterrence. The credible threat of
punishment might lead people to make different choices; well-designed threats might lead people to make choices which maximize
welfare.
- Rehabilitation. Punishment might make bad people into better ones.
For the utilitarian, all that ‘bad person’ can mean is ‘person who’s likely to cause bad things (like suffering) ’. So,
utilitarianism could recommend punishment which changes someone such that he or she is less likely to cause bad things.
- Security. Perhaps there are people who are irredeemable causers of bad things. If
so, imprisoning them might maximize welfare by limiting their opportunities to cause harm.
So, the reason for punishment is the maximization of welfare, and punishment should be of whomever, and of whatever form and
severity, are needed to meet that goal. Worryingly, this may sometimes justify punishing the innocent, or inflicting
disproportionately severe punishments, when that will have the best consequences overall (perhaps executing a few suspected
shoplifters live on television would be an effective deterrent to shoplifting, for
instance). It also suggests that punishment might turn out never to be right, depending on the facts about what actual
consequences it has.[8]
Retributivism
-
The retributivist will think the utilitarian's argument disastrously mistaken. If someone does something wrong, we must
respond to it, and to him or her, as an individual, not as a part of a calculation of overall
welfare. To do otherwise is to disrespect him or her as an individual human being. If the crime had victims, it is to disrespect
them, too. Wrongdoing must be balanced or made good in some way, and so the criminal deserves to be punished.
Retributivism emphasizes retribution – payback – rather than maximization of welfare. Like the theory of distributive justice as
giving everyone what he or she deserves (see above), it links justice with desert. It says that all guilty people, and only
guilty people, deserve appropriate punishment. This matches some strong intuitions
about just punishment: that it should be proportional to the crime, and that it should be of only and all of
the guilty. However, it is sometimes argued that retributivism is merely revenge in
disguise.[9]
- Further information: Deontological ethics
Institutions
-
In an imperfect world, institutions are required to instantiate ideals of justice, however imperfectly. These institutions may
be justified by their approximate instantiation of justice, or they may be deeply unjust when compared with ideal standards —
consider the institution of slavery. Justice is an ideal which the world fails to live up to,
sometimes despite good intentions, sometimes disastrously. The question of institutive justice raises issues of legitimacy, procedure, codification and interpretation, which are considered by legal
theorists and by philosophers of law.
Another definition of justice is an independent investigation of truth. In a court room lawyers, the judge and the jury are
supposed to be independently investigating the truth of an alleged crime. In physics, a group of physicists examine data and
theoretical concepts to consult on what might be the truth or reality of a phenomena.
See also
References
- ^ Exodus 21.xxiii-xxv.
- ^ Barry, Brian (1989). Theories of Justice. Berkeley: University of California Press,
xiii.
- ^ Elizabeth Anscombe, ‘Modern Moral Philosophy’, Philosophy 33(1958):
1-19. See further Alasdair MacIntyre, After Virtue (2nd edition, London: Duckworth, 1985); Onora O'Neill, Towards
Justice and Virtue (Cambridge: CUP, 1996), chapter 1.
- ^ Plato, Republic trans. Robin Waterfield (Oxford: OUP, 1984).
- ^ John Stuart Mill, Utilitarianism in On Liberty and Other
Essays ed. John Gray (Oxford: OUP, 1991), Chapter 5.
- ^ Karl Marx, ‘Critique of the Gotha Program’ in Karl Marx: Selected
writings ed. David McLellan (Oxford: OUP, 1977): 564-70, p. 569.
- ^ John Rawls, A Theory of Justice (revised edition, Oxford: OUP,
1999), p. 266.
- ^ C. L. Ten, ‘Crime and Punishment’ in Peter Singer ed., A Companion to
Ethics (Oxford: Blackwell, 1993): 366-72.
- ^ Ted Honderich, Punishment: The supposed justifications (London:
Hutchinson & Co., 1969), Chapter 1.
Bibliography and further reading
- Brian Barry, Theories of Justice (Berkeley: University of California Press, 1989).
- Harry Brighouse, Justice (Cambridge: Polity Press, 2004).
- Anthony Duff & David Garland eds, A Reader on Punishment (Oxford: OUP, 1994).
- Colin Farrelly, An Introduction to Contemporary Political Theory (London: Sage, 2004).
- David Gauthier, Morals By Agreement (Oxford: Clarendon Press, 1986).
- Robert E. Goodin & Philip Pettit eds, Contemporary Political Philosophy: An anthology (2nd edition, Malden Mass.:
Blackwell, 2006), Part III.
- Ted Honderich, Punishment: The supposed justifications (London: Hutchinson & Co., 1969).
- Will Kymlicka, Contemporary Political Philosophy: An introduction (2nd edition, Oxford: OUP, 2002).
- Nicola Lacey, State Punishment (London: Routledge, 1988).
- John Stuart Mill, Utilitarianism in On Liberty and Other Essays ed. John Gray (Oxford: OUP, 1991).
- Robert Nozick, Anarchy, State, and Utopia (Oxford: Blackwell, 1974).
- Plato, Republic trans. Robin Waterfield (Oxford: OUP, 1994).
- John Rawls, A Theory of Justice (revised edition, Oxford: OUP, 1999).
- David Schmidtz, Elements of Justice (New York: CUP, 2006).
- Peter Singer ed., A Companion to Ethics (Oxford: Blackwell, 1993), Part IV.
- C.L. Ten, Crime, Guilt, and Punishment: A philosophical introduction (Oxford: Clarendon Press, 1987).
External links
- Stanford Encyclopedia of Philosophy entries:
- [1] www.sterlingharwood.com
http://www.h4jusa.com
nrm:Justice
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