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Justice

Justice

Justice as general virtue

Procedural justice

Major philosophies of substantive justice

Justice as active process

BIBLIOGRAPHY

In the beginnings of recorded ethical and legal thought the term “justice” was used as equivalent to righteousness in general. Justice comprised the whole of virtue and complete conformity with the approved pattern of moral conduct. For purposes of rational analysis the classic philosophers, following Aristotle, preferred to restrict the term’s reference to a particular virtue, distinguishing, for example, between justice and equity or between justice and charity. Nevertheless, in common usage justice still retains significant traces of its original comprehensiveness. For this reason, the very broad concepts presented in the Hebrew Bible and in Plato’sRepublic continue to be important.

Justice as general virtue

The Bible

Aside from questions of theodicy and apologetics, the vast cultural influence of the Hebrew Bible has not been attributable to precision of concept or dialectical consistency. In certain pas-sages, the Scriptures seem to indicate that justice alone is sufficient to comprehend the entire scheme of divinely ordained behavior; in others, they place justice in various combinations of primary virtues, e.g., along with loving-kindness and reverence. Moreover, the emphasis shifts markedly from the Pentateuch, which can give a misleading impression of equating justice with mere obedience to ordained rules, to the prophetic books, which can give an opposite (and equally misleading) impression of rejecting all fixed rules in favor of rather vague ideals and general standards. Presented as they are in continual synthesis with a developing religion and in assumed involvement with divine purposes and sanctions, the Biblical teachings reach us not as definitions but as exhortations and exemplary episodes, not as abstract concepts but as practical, concrete, and progressive insights.

Taken as a whole and with due allowance for multiplicity of periods and authors, the Bible affords the following imperfectly conceptualized insights for secular application: (1) that (a) general standards of justice or righteousness (such as not oppressing one’s neighbor) may become too vague in outline and arbitrary in use without the specification that comes from definite rules (such as a prohibition against taking a man’s upper mill-stone in pawn);(b ) on the other hand, rules may become too inflexible and rigid without the emollient influence of general standards; (c) on occasion (e.g., the ostensible rules prescribed in Leviticus 25 for the jubilee year) a legislator may attempt to inculcate ideal standards of justice under the guise of declaring legal regulations; and (d) further, a people’s ethical sensibility may evolve to the point where it prompts a re-examination and a reinterpretation of inherited rules; (2) that in order to be considered just, a system of ethical or legal ordinances requires not only a conceived authoritative command but also a conceived popular consent, acceptance, or mutual covenant;

(3) that justice imposes a duty to perform group and individual acts of social reparation, welfare, and assistance; (4) that justice comprises the functionally related principles of impartiality and probity in rendering judgment, reciprocity in inter-personal transactions (including limited retaliation for violence), and equality of elementary rights not only between members of diverse economic classes but also between nations and races; and (5) that the emotional manifestation of justice consists in passionately abhorring all forms of oppression, exploitation, and cruelty, and its behavioral manifestation consists in denouncing and combating them.

Since the Biblical corpus, like Plato’s works, postulates a constant endeavor to edify the people and guide them into ways of virtue, it is suitable to add (6) that both Hebraic and Hellenic geniuses emphasized the potency of justice as a pedagogic influence. The Hebrew seers saw justice instilling rectitude, benevolence, and mutual trust among the populace, whereas Plato expected it to teach public order, private self-discipline, and the supremacy of reason. These educational doctrines might have been taken more seriously during ensuing centuries if high secular and ecclesiastical officials had provided more impressive examples.

Plato

The exposition of Plato’s thought reversed the Biblical sequence, moving from reliance on the discretion of the guardians, in the Republic, through a transitional discussion, in the Statesman, to reliance on detailed legal prescriptions, in the “second-best state” of theLaws. Although various modern scholars have rightly criticized the provisions for rigorous censorship and inquisition in Plato’s final dialogue, they have given him less credit than they might for replacing the dangerous notion of all-wise, unfettered philosopher—kings with a rule of laws.

In theRepublic, justice regulates and equilibrates the other virtues. Whether “writ small” within the individual psyche or “writ large” in the workings of the political state, its functions are to achieve harmony and to maintain equilibrium. To do these things, reason must rule within the psyche, and reason’s embodiment (the elite guardians) must rule within the state. Justice results from each element in society doing the appropriate task, doing it well, and doing it only. Here again Plato’s recent critics have been less than generous; although rightly condemning theRepublic’s hierarchic structure as undemocratic, they have said little about its anticipating modern sociological systems that base social solidarity on a deliberate separation of social functions.

Influenced perhaps by Plato’s imposing metaphysical dualism, subsequent philosophers, with few exceptions, have concentrated on the tension between (a) justice as an impartial application of established substantive rules and(b) justice as an ideal criterion or reformer or nullifier of such rules. In sharp contrast to common usage, most of them have neglected the extremely important subject of procedural justice. True, Plato decreed some procedural regulations in theLaws, but he gave them no role in a theory of justice; the Jewish sages who composed the Mishnah did much the same, though with greater sophistication. But common usage has surpassed the philosophers and sages. It reflects an infinitude of experience not merely in passing judgment but also in being judged, which can leave a searing and instructive impression. According to common experience in every species of economic and social activity, the problem of justice is at least as likely to arise out of, say, being condemned without a hearing as out of being condemned under an unfair substantive rule. In short, if it lacks a procedural aspect, any concept of justice may readily become a mockery.[See PLATO.]

Procedural justice

The paradigms

Procedural justice ’consists in employing correct methods to develop rules of con-duct, to ascertain the facts of a particular case, or to devise a total appreciation absorbing rules and facts into a final, dispositive judgment. Among the classic philosophers, only Aristotle and Thomas Aquinas showed sufficient awareness of the functional relations between standards and rules, evidence and facts, and facts and judgments to inquire with care into the principles of procedural justice. Their respective contributions were derived from two main sources: (a) the empirical wisdom of the times, and(b) the practices and nomenclature of the law courts.

Each of these sources reached a turning point in the eighteenth century. Empiricism then began its evolution into modern utilitarianship, pragmatism, and instrumentalism, while court practices began slowly to adapt themselves to modern ideals of human dignity and political democracy. Moreover, as former provinces of philosophy gradually be-came specialized into the new sciences of economics, psychology, sociology, and anthropology, these offered new guides, of varying degrees of dependability, for the progress of procedural justice.

As for fact-finding (i.e., the threshold process of sifting conflicting evidence and ascertaining what to believe about a unique and unrepeatable past event), the evolving methods of the law courts still presented an indispensable paradigm of judgment. Jeremy Bentham’s bold criticism of the English courts of his day helped to effect a gradual rationalization of judicial procedure. But other eminent utilitarians made no comparable contribution. In point of fact, the explicit utilitarian and scientific emphasis on generality of rules and propositions served to exclude an adequate concern for particular transactions.[See BENTHAM.] Bentham apart, the philosophers and social scientists can be said to have elevated the quality of procedural justice only through their influence on the general culture.

Since the eighteenth century, despite innumerable errors and injustices in the law courts, judicial procedure has undergone noteworthy reforms and advances. The procedural criteria compendiously known as “due process of law” have improved sufficiently in the United States of America and other mature democracies to offer a worthy paradigm for the exercise of ethical judgment. By and large, they make it possible to speak without embarrassment of “due process of moral decision.”

The requirements

In the law courts, the main requirements of due process, or procedural justice, are the following: No one must be accused of violating a rule of behavior unless he could have ascertained the existence and meaning of the rule before he committed the challenged act. When accused, a person is entitled to know the charge against him, to know the evidence adduced in sup-port of the charge, and to have a fair opportunity to collect and present his own evidence. The judge or other arbiter must be disinterested, unbiased, and attentive. If the accusation is grave, the accused is entitled to the assistance of a counsel and advocate (who in cases of informal charges like those that are bandied about in family life may be an advocate pleading within the self-same psyche that makes the accusation). Moreover, even if a person has been found guilty, procedural justice requires that some way be afforded to reconsider the case later and correct any serious error that comes to light.

Two influences have impelled the recent improvements in this paradigm. Foremost has been the rapid emergence of what may be called the “consumer perspective,” i.e., the view of law, morals, and justice in the perspective of the many who are subject to them instead of the few who officially declare and administer them. The second influence has consisted in a growing awareness of the gross imperfections inherent in fact-finding processes. Articulated by Judge Jerome Frank in his philosophy of “fact-skepticism,” this awareness has inspired, on the one hand, a variety of procedural reforms in the courts and, on the other hand, a growing resistance to irreversible sanctions, such as the death penalty.

Relation to substantive justice

In undervaluing the procedural aspect of justice, general philosophers have likewise neglected its influence on substantive rules. Granted that an impartial administration of justice can comport theoretically with an oppressive system of substantive law, the general experience of mankind demonstrates that this is true only in theory. In actual fact, procedural injustice not only accompanies substantive injustice; it also aggravates its cruelty. Procedural justice has the opposite influence; sooner or later it prompts and promotes advances in substantive justice. Thus, whereas unfair trials have aggravated the laws that discriminate against Negroes in certain American communities, fair trials and impartial tribunals have committed other American communities to the full vindication of equality and human dignity.

Major philosophies of substantive justice

Aristotle

Although Aristotle treated justice as a particular virtue, and the one most necessary to a state’s welfare, he recognized the prevalence of general justice in popular usage. Some interpreters believe that he reserved a role for it in his taxonomy of legal justice over and above the familiar categories of (a) “distributive” and(b) “corrective” (or “remedial” or “commutative”) justice. Distributive justice applies to the allotment of honor, wealth, and other social goods and should be proportionate to civic merit; corrective or commutative justice, which may apply in the first instance to private, voluntary exchanges outside the law courts, is confided peculiarly to the judiciary, whose duty is to restore a middle point of equality when-ever it is lacking between the parties. Commentators have taken the distinction between the two rather too literally, for it is evident that when the law grants or denies a commutative claim to re-cover damages for a specified type of injury (i.e., when it grants or denies a “cause of action”), it performs an act of distributive justice.

More characteristic of Aristotle’s profound practical wisdom were the several ways in which he delineated the antitheses and tensions (later to be called antinomies) of justice. Profiting by the insights of Plato, he produced a model for almost every subsequent assertion of value-relativism and for almost every subsequent effort to overcome or limit it. All later treatments of justice are indebted to him—even those that gainsay him by reducing justice to a list of immutable, universal, dogmatic precepts and those that gainsay him by seeking to expel justice from the realm of legal theory.

On the one hand, no philosopher has surpassed Aristotle’s tributes to the rational dignity of authoritative textual rules, which provide “justice according to law”; on the other, none has surpassed the keenness with which he criticized the inflexibility of legal precepts and their frequent unsuitability to the exigencies of a concrete case. His demand for individualization in the application of law, his appeal to judicial discretion, and his invocation of the magnanimous spirit of equity are as pertinent now as ever, yet so is his statement (quoted too often fromPolitics 1287 a without its contextual limitations) that he “who commands that law should rule may thus be regarded as commanding that God and reason alone should rule; he who commands that a man should rule adds the character of the beast.”

Although he occasionally adopted the usage of his day and condemned a practice such as usury as being “against nature,” he furnished a merciless expose of natural-law terminology, which he reduced to mere rhetoric and advocacy. One gathers that at bottom he rejected perceptual natural law and subscribed to a very general natural justice whose manifestations were much influenced by conventional and contingent data.

In moving away from Plato’s dualism, which would serve to exalt justice and denigrate positive law, Aristotle treated justice as immanent in the workings of law and thus gave it a markedly more effective function. Since immanent justice necessarily evokes difficult antitheses and tensions, it is to Aristotle’s enduring credit that, unlike most of his successors, he candidly left the unresolvable unresolved.[See ARISTOTLE.]

Thomas Aquinas

In Thomas Aquinas’ treatment of justice, most of Aristotle’s insights reappeared—modified, however, by the intervening influences of Stoic natural law, Christian doctrine, and the institutional interests of the medieval church in its conflict with the Holy Roman Empire. The result was a most ingenious amalgam, Christian throughout, yet susceptible of widely divergent uses. With one hand, Aquinas gave Cicero and the church fathers all they could have desired of eternal, divine, and ecclesiastical authority for the precepts of natural law; with the other, he explicated and underscored those variable, local, and contingent factors that must come into play whenever a precept of natural law is applied to the regulation of concrete human transactions. The “immutable” precepts in such a system would not necessarily stultify judgment.

In discussing the dangerous question whether a subject was in duty bound to obey or resist an un-just law, Aquinas adopted a prudent middle course. He demanded absolute resistance to any ordinance that might violate the divine good or divine law (of which, of course, the church was sole authoritative arbiter). If a law was unjust by being contrary to human good (e.g., a law imposed on subjects not for the common good but for the ruler’s cupidity, or one that exceeded the legislator’s authority, or one that imposed disproportionate burdens on members of the community), Aquinas held that it was not binding in conscience but that subjects should submit to it in order to avoid public scandal or disturbance. We need scarcely add that in practice these propositions have engendered many diverse and conflicting interpretations.[See AQUINAS.]

Kantians

Kant and his disciples have elucidated the concept of justice only tangentially. After giving a baldly positivistic definition of “just” and “unjust” in theMetaphysic of Morals, Kant devoted hisPhilosophy of Law (Rechtslehre) to analyzing right or law(Recht), not justice (Gerechtigkeit). His practical observations on legal and political rules and institutions were generally unimpressive. Hence his continuing influence on theories of justice has been due to (a) the sharp dichotomy between cognition and volition in his critical philosophy, which has had a markedly skeptical im-pact, and (b) the quality of rigorous objectivity, reciprocity, and universality in his ethical maxims (e.g., the categorical imperative and the admonition against using man merely as a means). Al-though the maxims do not appear to advantage in most of the concrete examples that Kant provided, their general tone has remained edifying. But as Huntington Cairns (1949) has made clear, Kant’s conclusions embodying ethical or legal content do not follow necessarily from the premises of his Rechtslehre. [See KANT.]

In the twentieth century, Rudolf Stammler (1911) attempted ingeniously but without success to articulate the governing maxims of just law, his formulation merely elaborating notions of reciprocity such as the anthropologist Bronislaw Malinowski (1926) was reporting more or less simultaneously from the Trobriand Islands. In an idealistic treatment that concluded, in Kantian manner, that justice was a quality not of social arrangements but of the human will, Bertrand de Jouvenel (1955) disclosed new values in the time-worn Stoic definitions of the concept. (Ulpian had defined justice as a species ofvoluntas, which Cicero had amended tohabitus animi.) Gustav Radbruch—a most impressive Neo-Kantian whose philosophic posture shifted radically after the rise and fall of Hitler Germany—conducted an unsur-passed examination into the antinomies of justice (1914).

Applying Kant’s critical epistemology, Hans Kelsen reiterated strongly over a period of years that justice is an irrational ideal.[See KELSEN.] “However indispensable it may be for volition and action of men, it is not subject to cognition” (1945, p. 13). Although like many other Kantians and NeoKantians Kelsen, as a jurist, supported a variety of just causes, his “pure theory of law” exerted a skeptical, and occasionally cynical, influence in this regard, particularly in central Europe and Latin America. Only at an unfortunately late date—after he had retired from teaching—did his readers learn that the above often-quoted words of dismissal referred exclusively to “absolute justice” (such as a supernatural authority might ordain) and that the author never intended to deny or disparage a humane conception of “relative justice” (cf. 1958, p. 1056).

The English utilitarians

Dangerous errors in the theory of justice have resulted from the rhetorical practice of calling it “the end of law”—as though the extremely complex social, intellectual, and institutional mechanism called law served only a single purpose and end. Since monisms inevitably beget rival monisms, which seek to absorb or destroy them, it is not strange that the concept of justice, taken in monistic relation to law, was un-congenial to the classic English utilitarians. The respective reactions evinced by Hume, Bentham, Austin, and Mill provide a chapter of unusual interest.

Hume, concerned mainly with the coherence and concinnity of utilitarian morals, was content to en-list justice in its service by submitting that “public utility is thesole origin of justice.” Not so Bentham. The adversaries of reform having misused the phrase “natural justice” too heinously to allow it room among utilitarians, he denounced it and all similar terms as mere invective and darkening of the intellect. Austin, a conservative utilitarian who had suffered special disappointments of his own, echoed Bentham on this score.

It was Mill alone who, having once subdued justice to the Procrustean bed of utilitarianism, waited to ascertain what he could observe while holding it there and insisting that “the just” was only a particular species of “the useful.” More clearly than any previous philosopher, Mill saw that because human beings experienced a primal need for security from attack they attributed a special moral value to the claim on their fellow creatures to join in making them safe, and that the felt intensity of the need distinguished this claim from common cases of utility and made it differ from them in kind.

Mill erred. He neglected procedural justice and preventive justice; often he leaped from the single individual to the whole of mankind without regard to intermediate groups, institutions, or national societies; and he made social utility the sole and final arbiter whenever men might differ with other men (as they almost invariably have and will) in their opinions of concrete justice.

Nevertheless, Mill was the first to discern some of the elemental psychic and emotional forces that impel men to strive for justice. “Justice,” he wrote, “is a name for certain classes of moral rules, which concern the essentials of human well-being more clearly, and are therefore of more absolute obligation, than any other rules for the guidance of life” (Utilitarianism, chapter 5). Others, from Heraclitus to Schopenhauer, had indicated in various ways that philosophers would profit from exploring the dynamics of injustice. Although Mill’s monistic utilitarianism blocked certain avenues of exploration and distorted some of his findings about justice, he deserves to rank among the concept’s foremost elucidators.[See MILL.]

Marx, Engels, and the Soviet jurists

Unlike Saint-Simon and various other socialist theorists, and unlike many of their own disciples, Marx and Engels allowed no place for “justice” in their analysis of economic relations. Like Bentham, they ridiculed the term, regarding it as a mere mask for capitalist exploitation and hypocrisy. In their view, its main defects were that: (1) since criticism of the capitalist system as “unjust” focused characteristically on inequalities or unfairnesses ofdistribution, it tended to obscure the essential nature of exploitation, which, they submitted, was a direct corollary of the capitalist mode ofproduction; and (2) since any attempt to rectify “injustices” on the distributive side must assume that some sort of equilibrium could be found between the irreconcilable forces in capitalist society, socialists who advocated “social justice” were misrepresenting the nature of the class conflict, diverting the workers from revolutionary uprisings, and postponing the achievement of total victory. Thus, in both its distributive and its equilibrium-maintaining implications they treated the concept as irrelevant and inept if not dangerous.[See ENGELS; MARX.]

During the 1920s the most creative Soviet jurist of the period, Evgenii B. Pashukanis, elaborating Marx and Engels’ analysis, argued that the notion of equality was a product of assumptions attached to the exchange of commodities under earlier stages of economic development and that morality, law, and the state, at least as theretofore known, were mere features of bourgeois society. Pashukanis regarded the concept of justice as interchangeable with that of equality—except that the former might afford greater possibilities for disguising in-equalities. His theories having been denounced by Stalin, Pashukanis simply disappeared from life during the purges of 1937; after Stalin’s death the list of those who were posthumously rehabilitated included his name (see Pashukanis 1927).

Although later Soviet writers cannot be said to have employed the term “justice” as a concept of juristic discourse, they have preserved certain limited aspects of its reference in their accepted phrase “socialist legality.” The principle of socialist legality requires all state organs as well as citizens to comply strictly with the provisions of Soviet legislation; it does not negative the taking of extraordinary measures against persons branded as class foes. Although during the post-Stalin era the climate of juristic discussion has by no means been stable, much less libertarian, there are unmistakable demands for greater procedural regularity and for a measure of popular participation in certain organs of state activity. Grounds for guarded optimism may be found when the government evinces a willingness to experiment, currently exemplified by the “comrades’ courts,” which involve lay citizens in adjudicating minor social infractions for the purpose of discouraging deviant behavior. Nevertheless, the old imperial or official perspective still prevails among Soviet jurists; even if some of them look beyond the libraries and see the masses, they seldom notice the individuals who make up the masses.

Justice as active process

Unaffected by the Neo-Kantian, utilitarian, and Marxist criticisms, common usage continues to treat “justice” as denoting some of the greatest of human needs and worthiest of social enterprises. Philosophers miss the reference of the term insofar as they fail to observe the occasions when it be-comes relevant to the concrete experience and dis-course of individuals and social groups. No concept would be adequate that identified justice with a merely ideal relation or static condition or list of preceptual standards. In common experience, men turn to the vocabulary of justice when they con-front a real or imagined instance of injustice. The ethical and biological functions of justice become evident inthe sense of injustice.

The sense of injustice is an indissociable blend of reason and empathy, evolutionary in its manifestations. It is not mere intuition or some mystical law-instinct (Rechtsgefiihl). Without reason, the sense of injustice could not identify the transactions that provoke it, nor could it serve the interests of social utility; without empathy it would lack its emotive heat and its capacity to impel men to act.

It derives logical and social justification from its efficacy, for it succeeds precisely to the extent that in any given case the relevant circumstances have been understood, felt, and appreciated. It is an immanent working factor not only within the institutions of law but throughout the cosmos of interpersonal transactions.

The sense of injustice is the equipment by which a human being discerns assault, recognizes oppression of another as a species of attack upon himself, and prepares defense. Among its facets, which should not be taken as categories, are the demands for equality, desert, human dignity, conscientious official behavior including due process of decision, confinement of government to its proper functions, and fulfillment of the common expectations of the given society. The sense of injustice does not provide a formula to relieve men of the duty of de-liberation and decision nor does it deprive them of their corresponding freedoms. Generally, it assists the decisional process rather by barring a course that is wrong than by selecting among courses that are right.

In this perspective, “justice” means the active process of preventing or remedying what would arouse the sense of injustice. Thus the experience of the sense of injustice is itself a dramatic species of social transformation, because it incites men to join with one another in perceiving danger, in resisting it, and in exulting over an achieved success —all of which are public acts of solidarity. Justice then is more than a static equilibrium or a quality of the human will; it is, as common usage has always hinted, an active process or agenda or enterprise. The meaning of the term comes alive when-ever one confronts injustice and “does” justice.

Edmond Cahn

[See also the articles listed underLAW.]

BIBLIOGRAPHY

For a discussion of the Bible, see Finkelstein 1949, Volume 2, especially Chapter 15 by Mordecai M. Kaplan. For an exposition of Plato’s thought, see Cairns 1949, Chapter 2, and references supplied there. For a discussion of the paradigms, see Cahn 1955, Chapter 9, and Aristotle’s Rhetoric. For an explanation of the requirements of justice, see Frank 1949; Cahn 1961, Chapter 7. For Aristotle’s thought, see his Ethicsand Politics, as well as the often neglected Rhetoric. For Thomas Aquinas’ treatment of justice, see his Summa theologica i-n, 2, 94–96. For the Kantian concept, see Kant’s Philosophy of Law, summarized in Cairns 1949, Chapter 12; Stammler 1911; Malinowski 1926; Jouvenel 1955, Chapter 9; Radbruch 1914;and Kelsen 1945 and 1958. For the English utilitarians, see Hume’s Enquiry Concerning the Principles of Morals, Chapter 3, Appendix 3; Bentham’s The Limits of Jurisprudence Denned; Austin’s The Province of Jurisprudence Determined, Lecture 2; and Mill’s Utilitarianism, Chapter 5. For references to Marx and Engels, see Tucker 1963, Chapter 15; and for the ideas of E. B. Pashukanis see 1927; for later Soviet theorists, see

Soviet…1951. For an analysis of justice as an active process, see Cahn 1949, 1955, and 1961.

Cahn, Edmond 1949 The Sense of Injustice. New York Univ. Press. → A paperback edition was published in 1964.

Cahn, Edmond 1955 The Moral Decision. Bloomington: Indiana Univ. Press.

Cahn, Edmond 1961 The Predicament of Democraticc Man. New York: Macmillan.

Cairns, Huntington 1949 Legal Philosophy From Plato to Hegel. Baltimore: Johns Hopkins Press. FINKELSTEIN, Louis (editor) (1949) 1960 The Jews: Their History, Culture and Religion. 2 vols., 3d ed. New York: Harper.

Frank, Jerome 1949 Courts on Trial. Princeton (NJ.) Univ. Press Ė A paperback edition was published in 1963.

Friedmann, Wolfgang (1945)1960 Legal Theory. 4th ed. London: Stevens.

Gilby, Thomas 1958 Principality and Polity: Aquinas and the Rise of State Theory in the West. London: Longmans.

Jouvenel, Bertrand De (1955) 1957 Sovereignty: An Inquiry Into the Political Good. Univ. of Chicago Press. Ė First published in French asDe la souverainete: A la recherche du bien politique.

Kelsen, Hans (1945) 1961 A General Theory of Law and State. New York: Russell.-* The author’s reformulation of ideas previously expressed in works published in German and French between 1925 and 1934. KELSEN, HANS 1958 Letters.New York University Law Review ’33:1056–1058.

Malinowski, Bronislaw (1926) 1961 Crime and Custom in Savage Society. New York: Harcourt. Ė A paperback edition was published in 1959 by Littlefield. PASHUKANIS, E. B. 1927 Obshchaia teoria prava i Marksizm (General Theory of Law and Marxism). Moscow: Izdatel’stvo Kommunisticheskoi Akademii. Ė For a partial English translation, see Soviet Legal Philosophy 1951.

Pound, Roscoe 1951 Justice According to Law. New Haven: Yale Univ. Press.

Radbruch, Gustav (1914) 1950 Gustav Radbruch: Legal Philosophy. Pages 43–224 inThe Legal Philosophies of Lask, Radbruch, and Dabin. Translated by Kurt Wilk. 20th Century Legal Philosophy Series, Vol. 4. Cambridge, Mass.: Harvard Univ. Press. Ė First published in German. The 1950 edition was translated from the revised and rewritten edition of 1932. A sixth German edition, edited by Erik Wolf, was published in 1963. Soviet Legal Philosophy. 1951 Cambridge, Mass.: Harvard Univ. Press; Oxford Univ. Press. Ė A collection of major classics by V. I. Lenin and others, translated by Hugh W. Babb and published under the auspices of the Association of American Law Schools. STAMMLER, RUDOLF (1911) 1925 The Theory of Justice. New York: Macmillan. Ė First published in German. TUCKER, ROBERT C. 1963 Marx and Distributive Justice. In Carl J. Friedrich and John W. Chapman (editors), Justice. Nomos 6. New York: Atherton.

Vecchio, Giorgio Del 1952 Justice: An Historical and Philosophical Essay. Edited by A. H. Campbell. Edinburgh Univ. Press. Ė First published in Italian; also translated into German and French.

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Justice

Justice

MODERN ACCOUNTS OF JUSTICE

JUSTICE AND UTILITARIANISM

RAWLSS THEORY OF JUSTICE

OBJECTIONS TO RAWLSS THEORY

BIBLIOGRAPHY

Justice is a moral quality of individuals and of institutions, whereby they give equality of respect to persons and strive to preserve the rights of all. Along with wisdom, courage, and moderation, justice was considered by ancient Greek as well as medieval Christian and Islamic thinkers to be a cardinal virtue. In the Republic, Plato (c. 427347 BCE) portrays justice as the right ordering of the parts of the individual soul and the groups of persons in the city. Aristotle (384322 BCE) devoted a central chapter of the Nicomachean Ethics to the virtue of justice. He distinguished between general justice, which is the complete exercise of all the virtues in ones treatment of other persons, and special justice, which is both the fair distribution of honors, wealth, and other goods, and fairness in the exchange of goods. Later tradition followed Aristotle by distinguishing between distributive justice (justice in the allotment of commonly held goods) and commutative justice (justice in exchange and in rectification of injuries). Distributive justice is governed, for Aristotle, by equality, but not by identical treatment for all. If the people involved are not equal, they will not [justly] receive equal shares (Aristotle 1985, p. 123). Whether one is wealthy, of good birth, or virtuous are among the factors that are believed by different people to affect ones just share of common goods, according to Aristotle.

Medieval philosophers followed the Greeks in defining justice as part of the natural law, those laws governing human actions that are founded in reason, in the human need to live in societies, and ultimately in a divine ordering of the universe.

MODERN ACCOUNTS OF JUSTICE

Modern political philosophy, although still sometimes using the language of natural law theories, transposed the discussion of justice into a social contract framework of thought. The English philosopher Thomas Hobbes (15881679) argued in Leviathan (1651) that prior to the establishment of a government, people lived in a state of nature, a state of war in which their lives and property were utterly insecure. In the state of nature, justice and injustice did not exist: Therefore before the names of just, and unjust can have place, there must be some coercive power, to compel men equally to the performance of their covenants, by the terror of some punishment (Hobbes [1651] 1962, p. 113). Justice, for Hobbes, has its ground in self-preservation and self-interest. John Locke (16321704) argued in the Second Treatise of Government (1690) that even in the state of nature people have a natural right to life, liberty, and property. The rulers, once the commonwealth is established, are obligated, according to Locke, to preserve these natural rights of individuals. Thus justice, for Locke, predates the establishment of the government and places some constraints upon the actions of those in power.

JUSTICE AND UTILITARIANISM

Utilitarian philosophy, resting as it does on the principle that the rightness of actions and of social institutions depends on the degree to which they promote human happiness, has often been charged with disregarding justice. Because the happiness of the greatest number could, at least in theory, result from unjustly depriving a minority of their rights or even of their lives, utilitarianism is often accused of failing to account for intuitive and traditional judgments about justice toward individuals. In defense of utilitarianism, John Stuart Mill (18061873) argued in Utilitarianism (1863) that the claims of justice, including individual rights to life, liberty, and property, as well as the right of individuals to be dealt with truthfully and impartially, are fully compatible with utilitarianism. Because there can be no security for anyone unless each is treated justly, Mill argued, justice is the foundation of any society that seeks to promote the general happiness. Mill acknowledged widespread disagreement over such issues as whether those with greater talents or skills should be rewarded better than those without and whether taxes should be assessed based on the ability to pay or as an equal share.

A number of questions emerge from the foregoing sketch of historical views of justice: Should justice be considered a social convention or does it have a basis in natural or divine law? To what extent does justice, which demands that everyone be treated in some sense equally, admit that different treatment is appropriate in different cases? What are the differences (e.g., of individual merit or of need) that appropriately lead to differences in treatment?

RAWLSS THEORY OF JUSTICE

The American philosopher John Rawls (19212002) was the twentieth centurys most influential thinker concerning these questions. In A Theory of Justice (1971), Rawls argued that justice is at its basis a matter of fairness. Justice, for Rawls, is the first virtue of social institutions, as truth is of systems of thought (Rawls [1971] 1999, p. 3). Rawlss theory advocates a form of procedural justice, meaning that justice results from following a fair procedure, where there is no separate measure of what a just outcome would be. In the tradition of social contract theory, Rawls describes a hypothetical original position in which free and equal parties agree to the principles of justice by which society will be governed. To ensure fairness, the choice is made behind a veil of ignorance in which each of the contracting parties is denied knowledge of certain facts about themselves. None of them knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like (p. 11). The parties are ignorant of their gender, and they do not know to what generation they belong. They know that when the veil is lifted they will have some conception of the good, that their notions of the good life will require some measure of resources to carry them out, and that those resources will be somewhat scarce.

Once the agents of the original position have been presented with a variety of available conceptions of justice, Rawls argues that they would adopt what he calls the two principles of justice. First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others. Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyones advantage, and (b) attached to positions and offices open to all (Rawls [1971] 1999, p. 53). Rawls gives priority to the first of these principles, such that basic liberties can be restricted only for the sake of liberty (p. 266). He refines the second principle (termed the difference principle) to say that inequalities are to be to the greatest benefit of the least advantaged (p. 266). As a result of adopting these principles of justice, Rawls defends a liberal constitutional democracy in which the government protects basic liberties and oversees the just distribution of resources. The principles of justice led Rawls, in his 2001 book Justice as Fairness: A Restatement, to criticize welfare and laissez-faire capitalism, as well as state socialism having a command economy, in favor of property-owning democracy and liberal socialism (Rawls 2001, p. 138).

In his 1993 book Political Liberalism, Rawls argues that the principles of justice are subject to an overlapping consensus, that is, that they are acceptable from the perspective of many different philosophical or religious systems of thought. In this way, Rawls advances the discussion of the principles of justice without requiring a decision on whether justice is ultimately a matter of social convention or of natural or divine law.

Though not a strict egalitarian (for he allows inequalities as long as they are to the advantage of the least well-off), Rawls views as unjust any distribution of goods that serves only to better the conditions of those possessing greater natural or social advantages than others. It is important to note that, for Rawls, individual endowments such as talent, wealth, and social standing are arbitrary gifts of fortune rather than individual possessions or entitlements. The difference principle ensures that those who possess such advantages will not be able to translate them into a greater share of societys goods at the expense of those who are less advantaged. Thus, on the question of whether merit, need, or some other criterion should become the basis for the distribution of social goods, Rawls asks that we remember that what appears to be an individuals merit is generally the result of luck rather than desert.

OBJECTIONS TO RAWLSS THEORY

Rawlss work has been widely praised and criticized. Communitarian critics, such as Michael Sandel, have objected that the parties in the original position are artificially deprived of the knowledge that membership in a particular community is essential to their identities, leading to an overly individualistic account of justice. Libertarians, including Robert Nozick (19382002), viewed Rawlss principles as leading to infringements of individual liberty because of Rawlss willingness to redistribute social goods that were initially obtained through what libertarians view as legitimate means (e.g., not obtained through deceit or coercion). Advocates of Catholic social teaching, along with other religiously oriented thinkers, have objected that Rawlss thought relegates religious belief to the private sphere, thereby denying the important role of religious faith in the promotion of social justice. The feminist political thinker Susan Moller Okin (19462004) argued that Rawls overlooked the need for justice within families. Advocates of capability ethics, including Amartya Sen and Martha Nussbaum, criticized Rawls for stressing the equal distribution of goods without noting the differing degrees to which society enhances or undermines individuals capacities to make use of those goods. (Nussbaum has, in her own work, extended the discussion of justice to include questions of justice toward the disabled, toward nonhuman animals, and across international boundaries.) Despite these and other objections, Rawlss theory, with its powerful defense of individual rights and its attention to the claims of the disadvantaged, continues to exert a commanding influence on contemporary ethical and political thought.

SEE ALSO Democracy; Egalitarianism; Equality; Justice, Distributive; Locke, John; Rawls, John; Social Contract; Utilitarianism

BIBLIOGRAPHY

Aristotle. 1985. Nicomachean Ethics. Trans. Terence Irwin. Indianapolis, IN: Hackett.

Hobbes, Thomas. [1651] 1962. Leviathan, or the Matter, Form, and Power of a Commonwealth Ecclesiastical and Civil, ed. Michael Oakeshott. New York: Collier.

Locke, John. [1690] 1980. Second Treatise of Government, ed. C. B. Macpherson. Indianapolis, IN: Hackett.

Mill, John Stuart. [1863] 2002. Utilitarianism, 2nd ed., ed. George Sher. Indianapolis, IN: Hackett.

Rawls, John. [1971] 1999. A Theory of Justice, rev. ed. Cambridge, MA: Belknap.

Rawls, John. 1993. Political Liberalism. New York: Columbia University Press.

Rawls, John. 2001. Justice as Fairness: A Restatement, ed. Erin Kelly. Cambridge, MA: Belknap.

Paulette Kidder

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Justice

397. Justice (See also Lawgiving.)

  1. Aeacus a judge of the dead. [Rom. Lit.: Aeneid ]
  2. Ahasuerus (519465 B.C.) Persian king rectifies wrongs done to Jews. [O.T.: Esther 8:78]
  3. Arthur, King trained by Merlin to become a just ruler, he endeavors all his life to establish a realm where justice prevails. [Br. Lit.: Malory Le Mort dArthur ]
  4. Asha in moral sphere, presides over righteousness. [Zoroastrianism: Jobes, 138]
  5. Astraea goddess of justice. [Gk. Myth.: Benét, 59]
  6. Barataria island-city where Sancho Panza, as governor, settles disputes equitably. [Span. Lit.: Cervantes Don Quixote ]
  7. blindfold worn by personification of justice. [Art: Hall, 183]
  8. blue in American flag, symbolizes justice. [Color Symbolism: Leach, 242; Jobes, 356]
  9. Brown vs. Board of Education landmark Supreme Court decision barring segregation of schools (1954). [Am. Hist.: Van Doren, 544]
  10. Cambyses, Judgment of corrupt judges flayed flesh provides judicial throne. [Gk. Hist.: Herodotus ]
  11. Carlos, Don conscience piqued, tries to lift Spanish yoke from Flemish. [Ger. Lit.: Don Carlos ]
  12. Cauchon, Bishop presided impartially over the ecclesiastical trial of Joan of Arc. [Fr. Hist.: EB, (1963) V, 60]
  13. Dike one of Horae; personification of natural law and justice. [Gk. Myth.: Zimmerman, 85]
  14. Gideon v. Wainwright established right of all defendants to counsel (1963). [Am. Hist.: Van Doren, 585]
  15. Hatto during a famine he saves food for the rich by burning the poor, whom he compares to mice; mice invade his tower and devour him. [Ger. Legend: Brewer Dictionary, 439]
  16. Henry VII (14571509) deliverer of Richard IIIs just deserts. [Br. Lit.: Richard III ]
  17. International Court of Justice main judicial organ of U.N. [World Hist.: NCE, 1351]
  18. Libra sign of the balance, weighing of right and wrong. [Zodiac: Brewer Dictionary, 640]
  19. Minos his justice approved even by the gods; became one of the three judges of the dead. [Gk. Myth.: Zimmerman, 168]
  20. Moran equitable councillor to King Feredach. [Irish Hist.: Brewer Dictionary, 728]
  21. Morans collar strangled wearer if he judged unfairly. [Irish Folklore: Brewer Dictionary, 728]
  22. Nuremberg Trials surviving Nazi leaders put on trial (1946). [Eur. Hist.: Van Doren, 512]
  23. Portia as a lawyer, ingeniously interprets to Shylock the terms of Antonios bond. [Br. Drama: Shakespeare The Merchant of Venice ]
  24. Prince Po settles dispute over a stolen child by asking the two claimants to pull it out of a circle of chalk by its arms. [Chin. Drama: The Circle of Chalk in Magill III, 193; cf. Brecht The Caucasian Chalk Circle in Weiss, 74]
  25. Rhadamanthus made judge in lower world for earthly impartiality. [Gk. Myth.: Brewer Handbook, 911]
  26. rudbeckia indicates fairness. [Flower Symbolism: Flora Symbolica, 177]
  27. scales signify impartiality. [Art: Hall, 183]
  28. scepter denotes fairness and righteousness. [Heraldry: Halberts, 37]
  29. Solomon perspicaciously resolves dilemma of babys ownership. [O.T.: I Kings 1628]
  30. stars, garland of emblem of equity. [Western Folklore: Jobes, 374]
  31. sword and scales attributes of St. Michael as devil-fighter and judge. [Christian Symbolism: Appleton, 98]
  32. Tale of Two Cities, A barrister London Stryver gets Charles Darnay acquitted by showing his resemblance to Sydney Carton. [Br. Lit.: Dickens A Tale of Two Cities ]
  33. Valley of Jehoshaphat where men will be ultimately tried before God. [O.T.: Joel 3:2]
  34. World Court popular name for International Court of Justice which assumed functions of the World Court. [World Hist.: NCE, 30063007]
  35. Yves, St. equitable and incorruptible priest-lawyer. [Christian Hagiog.: Attwater, 347

Kidnapping (See ABDUCTION .)

Killing (See ASSASSINATION, INFANTICIDE, MURDER, PATRICIDE .)

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justice

jus·tice / ˈjəstis/ • n. 1. just behavior or treatment: a concern for justice, peace, and genuine respect for people. ∎  the quality of being fair and reasonable: the justice of his case. ∎  the administration of the law or authority in maintaining this: a tragic miscarriage of justice. ∎  (Justice) the personification of justice, usually a blindfolded woman holding scales and a sword. 2. a judge or magistrate, in particular a judge of the supreme court of a country or state. PHRASES: bring someone to justice arrest someone for a crime and ensure that they are tried in court.do oneself justice perform as well as one is able to.do someone/something justice (or do justice to someone/something) do, treat, or represent with due fairness or appreciation: the brief menu does not do justice to the food.in justice to out of fairness to: I say this in justice to both of you.rough justicesee rough.DERIVATIVES: jus·tice·ship / ship/ n. (in sense 2).

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justice

justice exercise of judicial authority; judicial officer, judge XII; quality of being just XIV; rightfulness XVI. —(O)F.— L. jūstitia righteousness, equity, f. jūstus JUST; see -ICE.
So justiciar (hist.) xv, justiciary XVI. —medL. justitiārius; see -AR, -ARY.

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Justice

JUSTICE

The proper administration of the law; the fair and equitable treatment of all individuals under the law. A title given to certain judges, such as federal and state supreme court judges.

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Justice

JUSTICE.

This entry includes three subentries:

Overview
Justice in American Thought
Justice in East Asian Thought

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justice

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justice

justiceAttis, gratis, lattice •malpractice, practice, practise •Atlantis, mantis •pastis •Lettice, lettuce, Thetis •apprentice, compos mentis, in loco parentis, prentice •Alcestis, testis •poetess • armistice •appendicitis, arthritis, bronchitis, cellulitis, colitis, conjunctivitis, cystitis, dermatitis, encephalitis, gastroenteritis, gingivitis, hepatitis, laryngitis, lymphangitis, meningitis, nephritis, neuritis, osteoarthritis, pericarditis, peritonitis, pharyngitis, sinusitis, tonsillitis •epiglottis, glottis •solstice •mortise, rigor mortis •countess • viscountess •myosotis, notice, Otis •poultice • justice • giantess • clematis •Curtis • interstice • Tethys •Glenrothes • Travis •Jarvis, parvis •clevis, crevice, Nevis •Elvis, pelvis •Avis, Davies, mavis •Leavis • Divis • novice • Clovis •Jervis, service •marquess, marquis

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