Justice
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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, a theory of distributive justice,
advocates an equal distribution of wealth (and perhaps other goods): 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.
The lex talionis (law of retaliation), a theory of retributive justice,
advocates an equal punishment 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]
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.
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Understandings of justice
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 desirable 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
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. 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. It is like a ship in open ocean, crewed by a powerful but drunken captain (the common people), a group of untrustworthy advisors 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.
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 whether God's command is in fact morally right. If so, then morality exists on a higher order than God, who becomes little more than a dispenser of moral knowledge. Divine command advocates point out that goodness is the very nature of God and is 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. [Hindu equivalent is karma]
Justice as commanded by authority
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 similarities with divine command theory (see above), with the difference that the state (or other authority) replaces God. [Legal justice]
Economic Justice
Justice as a concept has little, even 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
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, 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 desert. The main distinction is between, on one hand, theories which argue that the basis of just desert 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.
Fairness [Rawls' Theory of Justice]
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 lifeplans, 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 maximise 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 [Nozick's critique of Rawls]
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;
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.
Welfare-maximisation
According to the utilitarian, justice requires the maximisation 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? 2. who should be punished? 3. 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 maximisation 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 maximises 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 maximise 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 maximise welfare by limiting their opportunities to cause harm.
So, the reason for punishment is the maximisation 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 emphasises retribution – payback – rather than maximisation of welfare. Like the theory of distributive justice as giving everyone what 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]
Institutions
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.
[edit] 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.
[edit] 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).