Justice

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Stephen Ewen 22:35, 18 February 2007 (CST)

Justice is the ideal, morally correct state of things and persons, whatever that contested ideal may turn out to mean. For many, justice is overwhelmingly important: "Justice is the first virtue of social institutions, as truth is of systems of thought." For many, it has not been achieved: "We do not live in a just world." It is not clear, however, what justice and injustice demand of us. We are in the difficult position of thinking that justice is vital, but of not being certain how to distinguish justice from injustice in our characters, institutions or actions, or in the world as a whole.

This problem of uncertainty about fundamentals has inspired philosophical reflection about justice, as about other topics. What exactly justice is, and what it demands of individuals and societies, are among the oldest and most contested of philosophical questions. For example, the proper distribution of wealth in society — should it be equal? meritocratic? according to status? — has been fiercely debated for at least the last 2,500 years. Philosophers, political theorists, theologians, legal scholars and others have attempted to clarify the source, nature and demands of justice, with widely various results.

We might picture justice as a virtue — a property of people, and only derivatively of their actions and the institutions they create — or as a property of actions or institutions, and only derivatively of the people who bring them about. The source of justice may be thought to be harmony, divine command, natural law, or human creation, or it may be thought to be subordinate to a more central ethical standard. The demands of justice are pressing in two areas, distribution and retribution. Distributive justice may require equality, giving people what they deserve, maximising benefit to the worst off, protecting whatever comes about in the right way, or maximising total welfare. Retributive justice may require backward-looking retaliation, or forward-looking use of punishment for the sake of its consequences. Ideals of justice must be put into practice by institutions, which raise their own questions of legitimacy, procedure, codification and interpretation.

Virtue or results?

We speak both of a just (or unjust) punishment, and of the just (or unjust) judge who imposed it. But 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.

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 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. For Socrates, the only way the ship will reach its destination – the good – is if the navigator takes charge.

Justice as divine command

Advocates of divine command theory argue that justice, and indeed the whole of morality, is the authoritative command of God. Murder is wrong and must be punished, for instance, because, and only because, God commands that it be so. This faces an objection known as the Euthyphro dilemma, which asks: is what is right whatever is commanded by God, or does God command what is in fact morally right? If the former, then justice is arbitrary, and we have no reason to conform to it; if the latter, then morality is independent of God and he becomes little more than a passer-on of moral knowledge. Either way, it appears that divine command theory is refuted. A defender of the theory could respond by arguing 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 may turn out to be familiar rules 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 is the source of our feelings about justice, that ought to undermine our confidence in them, at least when they clash with the requirements of utility.

Further information: Utilitarianism, Utilitarianism (book), John Stuart Mill

Demands of justice in distribution and retribution

Justice can be divided into two broad types. 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, burning for burning, wound for wound, stripe for stripe."

Theories of distributive justice

Theories of distributive justice need to answer three questions:

1. What goods are to be distributed? Is it to be wealth, power, respect, some combination of these things?
2. Between what entities are they to be distributed? Humans, sentient beings, the members of a single society, nations?
3. What is the proper distribution? Equal, meritocratic, according to social status, according to need?

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’. 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 status, 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.

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-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:

1. 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:

1. 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.
2. 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.
3. 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.

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.

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.

See also

• Criminal justice
• Distributive justice
• Ethics
• Global justice
• Just war
• Retributive justice
• Social justice

Bibliography & 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:
  • Distributive justice, by Julian Lamont.
  • Justice as a virtue, by Michael Slote.
  • Punishment, by Hugo Adam Bedau.