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Justice: Overview

Justice: Overview

Virtually everyone becomes involved in disputes about justice at some point. Sometimes our involvement in such disputes is rooted in the fact that we believe ourselves to be victims of some form of injustice, such as job discrimination; sometimes our involvement is rooted in the fact that others believe us to be the perpetrators or at least the beneficiaries of some form of injustice affecting them, such as unfair taxing policies. Elimination of the injustice may require drastic reform, or even revolutionary change in the political system, such as took place in the Soviet Union, Eastern Europe, and South Africa. In other cases, redress of the injustice may require only some electoral pressure or administrative decision, such as that required to end a war, for example, the Vietnam War. Whatever the origin and whatever the practical effect, disputes about justice are difficult to avoid, especially when dealing with issues that have widespread social effects like access to employment opportunities, distribution of income, structure of political institutions, and use of the war-making capabilities of a nation.

Reasonable resolutions of such disputes require critical evaluation of the alternative conceptions of justice available to us. Philosophical debate at the beginning of the twenty-first century supports five major conceptions of justice: (1) a libertarian conception, which takes liberty to be the ultimate political ideal; (2) a socialist conception, which takes equality to be the ultimate political ideal; (3) a welfare liberal conception which takes contractual fairness or maximal utility to be the ultimate political ideal; (4) a communitarian conception, which takes the common good to be the ultimate political ideal; and (5) a feminist conception, which takes a gender-free society to be the ultimate political ideal.

All of these conceptions of justice have features in common. Each has requirements that belong to the domain of obligation rather than to the domain of charity; differences arise as to where the line between these domains should be drawn. Each is concerned with giving people what they deserve or should rightfully possess; disagreements exist about what those things are. Each is secular rather than religious in character because for justice to be enforceable it must be accessible to all who apply for it; only a conception of justice that is based on secular reason rather than on religious faith could have that accessibility. Each is thought to apply cross-culturally in virtue of its being accessible to everyone on the basis of reason alone. These common features constitute a generally accepted core definition of justice. What we need to do, however, is examine that part of each of these conceptions of justice over which there is serious disagreement in order to determine which, if any, is most defensible.

Libertarian Justice

Libertarians frequently cite the work of F. A. Hayek (18991992), particularly his Constitution of Liberty (1960), as an intellectual source of their view. Hayek argues that the libertarian ideal of liberty requires "equality before the law" and "reward according to market value" but not "substantial equality" or "reward according to merit." Hayek further argues that the inequalities due to upbringing, inheritance, and education that are permitted by an ideal of liberty actually tend to benefit society as a whole. In basic accord with Hayek, early-twenty-first-century libertarians define "liberty" as "the state of being unconstrained by other persons from doing what one wants." This definition limits the scope of liberty in two ways. First not all constraints, whatever the source, count as restrictions on liberty; the constraints must come from other persons. For example, people who are constrained by natural forces from getting to the top of Mount Everest have not been deprived of liberty in this regard. Second the constraints must run counter to people's wants. Thus people who do not want to hear Beethoven's Fifth Symphony do not have their liberty restricted when other people forbid its performance, even though the proscription does in fact constrain what the former are able to do.

Given this definition of liberty, libertarians go on to characterize their moral and political ideal as requiring that each person should have the greatest amount of liberty commensurate with the same liberty for all. From this ideal, libertarians claim that a number of more specific requirements, in particular a right to life, a right to freedom of speech, press, and assembly, and a right to property, can be derived.

The libertarian's right to life is not a right to receive from others the goods and resources necessary for preserving one's life; it is simply a right not to be killed. So understood, the right to life is not a right to receive welfare. In fact there are no welfare rights in the libertarian view. Accordingly the libertarian's understanding of the right to property is not a right to receive from others the goods and resources necessary for one's welfare, but rather a right to acquire goods and resources either by initial acquisition or by voluntary agreement.

By defending rights such as these, libertarians can support only a limited role for government. That role is simply to prevent and punish initial acts of coercionthe only wrongful actions in the libertarian view.

Libertarians do not deny that having sufficient goods and resources to meet basic nutritional needs and basic heath care needs is a good thing, but they do not believe that government has a duty to provide such goods and resources. Libertarians claim that some good things, such as the provision of welfare and health care to the needy, are requirements of charity rather than justice. Accordingly failure to make such provisions is neither blameworthy nor punishable.

A basic objection to the libertarian conception of justice is its claim that rights to life and property, as the libertarian understands these rights, derive from an ideal of liberty. Why should we think that an ideal of liberty requires a right to life and a right to property that excludes a right to welfare? A libertarian understanding of a right to property might well justify a rich person depriving a poor person of the liberty to acquire the goods and resources necessary for meeting the latter's basic nutritional needs. How then could we appeal to an ideal of liberty to justify such a deprivation of liberty? Surely we could not claim that such a deprivation is justified for the sake of preserving a rich person's freedom to use the goods and resources he or she possesses to meet luxury needs. By any neutral assessment, the liberty of the deserving poor not to be interfered with when taking from the surplus possessions of the rich what they require to meet their basic needs should have priority over the liberty of the rich not to be interfered with when using their surplus possessions to meet their luxury needs. But if this is the case, then a right to welfare, and possibly a right to equal opportunity as well, would be grounded in the libertarian ideal of liberty.

Socialist Justice

In contrast with libertarians, socialists take equality to be the ultimate political ideal. In the Communist Manifesto (1848), Karl Marx (18181883) and Friedrich Engels (18201895) maintain that the abolition of bourgeois property and bourgeois family structure is a necessary first requirement for building a society that accords with the political ideal of equality. In the Critique of the Gotha Program (1891), Marx provides a much more positive account of what is required to build a society based upon the political ideal of equality. Marx claims that the distribution of social goods must conform, at least initially, to the principle from each according to his/her ability, to each according to his/her contribution. But when the highest stage of communist society has been reached, Marx adds, distribution will conform to the principle from each according to his/her ability, to each according to his/her need.

At first this conception might sound ridiculous to someone brought up in a capitalist society. How can people be asked to contribute according to their ability if income is distributed on the basis of their needs and not on the basis of their contributions?

The answer, according to a socialist conception of justice, is to make the work itself as enjoyable as possible. As a result, people will want to do the work they are capable of doing because they find it intrinsically rewarding. For a start, socialists might try to get people to accept existing, inherently rewarding jobs at lower salariestop executives, for example, would work for $300,000, rather than the much higher salaries they can actually command. Ultimately socialists hope to make all jobs as intrinsically rewarding as possible, so that when people are no longer working primarily for external rewards and are making their best contributions to society, distribution can proceed on the basis of need.

Socialists propose to implement their ideal of equality by giving workers democratic control over the workplace. They believe that if workers have more to say about how they do their work, they will find their work intrinsically more rewarding. As a consequence, workers will be more motivated to work because the work itself will be meeting their needs. Socialists believe that extending democracy to the workplace will necessarily lead to socialization of the means of production and the end of private property. Socialists, of course, do not deny that civil disobedience or even revolutionary action may be needed to overcome opposition to extending democracy to the workplace.

Even with democratic control of the workplace, some jobs, such as collecting garbage or changing bedpans, probably cannot be made intrinsically rewarding. Socialists propose to divide up such jobs in an equitable manner. Some people might, for example, collect garbage one day a week, and then work at intrinsically rewarding jobs for the rest of the week. Others would change bedpans or do some other unfulfilling job one day a week, and then work at an inherently rewarding job on the other days. By making jobs as intrinsically rewarding as possible, in part through democratic control of the workplace and an equitable assignment of unrewarding tasks, socialists believe people will contribute according to their ability even when distribution proceeds according to need.

Another difficulty raised concerning the socialist conception of justice involves the proclaimed necessity of abolishing private property and socializing the means of production. It seems perfectly possible to give workers more control over their workplace while the means of production remain privately owned. Of course private ownership would have a somewhat different character in a society with democratic control of the workplace, but it need not cease to be private ownership. After all, private ownership would also have a somewhat different character in a society where private holdings, and hence bargaining power, were distributed more equally than they are in most capitalist societies, yet it would not cease to be private ownership. Accordingly we could imagine a society where the means of production are privately owned but wherebecause ownership is so widely dispersed throughout the society and because of the degree of democratic control of the workplacemany of the criticisms socialists make of existing capitalist societies would no longer apply.

Welfare Liberal Justice: The Contractarian Perspective

Finding merit in both the libertarian ideal of liberty and the socialist ideal of equality, welfare liberals attempt to combine both liberty and equality into one political ideal that can be characterized as contractual fairness or maximal utility.

A classical example of the contractual approach to welfare liberal justice is found in the political works of Immanuel Kant (17241804). Kant claims that a civil state ought to be founded on an original contract satisfying the requirements of freedom (the freedom to seek happiness in whatever way one sees fit as long as one does not infringe upon the freedom of others to pursue a similar end), equality (the equal right of each person to restrict others from using his or her freedom in ways that deny equal freedom to all), and independence (the independence of each person that is necessarily presupposed by the free agreement of the original contract).

According to Kant, the original contract, which ought to be the foundation of every civil state, does not have to "actually exist as a fact." It suffices that the laws of a civil state are such that people would agree to them under conditions in which the requirements of freedom, equality, and independence obtain. Laws that accord with this original contract would then, Kant claims, give all members of society the right to reach any degree of rank that they could earn through their labor, industry, and good fortune. Thus the equality demanded by the original contract would not, in Kant's view, exclude a considerable amount of economic liberty.

The Kantian ideal of a hypothetical contract as the moral foundation for a welfare liberal conception of justice was further developed by John Rawls (19212002) in A Theory of Justice (1971) and in Justice as Fairness: A Restatement (2001). Rawls, like Kant, argues that principles of justice are those principles that free and rational persons who are concerned to advance their own interests would accept in an initial position of equality. Yet Rawls goes beyond Kant by interpreting the conditions of his "original position" to explicitly require a "veil of ignorance." This veil of ignorance, Rawls claims, has the effect of depriving persons in the original position of the knowledge they would need to advance their own interests in ways that are morally arbitrary.

According to Rawls, the principles of justice that would be derived in the original position are the following:

  1. Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and
  2. Social and economic inequalities are to satisfy two conditions: First they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; second, they are to be to the greatest benefit of the least advantaged members of society (the difference principle).

Rawls holds that these principles of justice would be chosen in the original position because persons so situated would find it reasonable to follow the conservative dictates of the "maximin strategy" and maxi mize the min imum, thereby securing for themselves the highest minimum payoff and because these principles express an ideal of reciprocity.

Rawls's defense of a welfare liberal conception of justice has been challenged in a variety of ways. Some critics endorse his contractual approach while disagreeing with him over what principles of justice would be derived from it. These critics usually attempt to undermine the use of a maximin strategy in the original position. Other critics, however, have found fault with the contractual approach itself. Libertarians, for example, challenge the moral adequacy of the very ideal of contractual fairness because it conflicts with their ideal of liberty.

This second challenge to the ideal of contractual fairness is potentially more damaging because, if valid, would force its supporters to embrace some other political ideal. The challenge, however, would fail if the libertarian ideal of liberty, when correctly interpreted, can be shown to lead to much the same practical requirements as are usually associated with the welfare liberal ideal of contractual fairness.

Welfare Liberal Justice: The Utilitarian Perspective

One way to avoid the challenges directed at a contractarian defense of welfare liberal justice is to find some alternative way of defending it. Historically utilitarianism has been thought to provide such an alternative defense. Under a utilitarian view, the requirements of a welfare liberal conception of justice can be derived from considerations of utility in such a way that following these requirements will result in the maximization of total happiness or satisfaction in society. The best-known classical defense of this utilitarian approach is that presented by John Stuart Mill (18061873) in Utilitarianism (1863).

In chapter 5 of this work, Mill surveys various types of actions and situations that are ordinarily described as just or unjust, and concludes that justice simply denotes a certain class of fundamental rules, the adherence to which is essential for maximizing social utility. Thus Mill rejects the idea that justice and social utility are ultimately distinct ideals, maintaining instead that justice is in fact derivable from the ideal of social utility.

Nevertheless a serious problem remains for the utilitarian defense of welfare liberal justice. There would appear to be ways of maximizing social utility overall that do an injustice to particular individuals. Think of the Roman practice of throwing people to the lions for the enjoyment of all those in the Colosseum. This unjust practice arguably maximized social utility overall.

Rawls makes the same point somewhat differently. Since utilitarianism sees society as a whole as if it were just one person, it treats the desires and satisfactions of separate persons as if they were the desires and satisfactions of just one person. Thus, according to Rawls, utilitarianism fails to preserve the distinction between persons.

But is Rawls right? Suppose we were to interpret utilitarianism to be constrained by the "ought" implies "can" principle, according to which people are not morally required to do what they lack the power to do or what would involve so great a sacrifice that it would be unreasonable to ask, and/or in cases of severe conflict of interest, unreasonable to require them to abide by. So constrained, utilitarianism would not impose unreasonable sacrifices on individuals, and so would not then have the consequences to which Rawls objects.

Communitarian Justice

Another prominent political ideal defended by contemporary philosophers is the communitarian ideal of the common good. As one might expect, many contemporary defenders regard the communitarian conception of justice as rooted in Aristotelian moral theory. In the Nicomachean Ethics (c. 335322 b.c.e.), Aristotle (384322 b.c.e.) distinguishes between different varieties of justice. He first distinguishes between justice as the whole of virtue and justice as a particular part of virtue. In the former sense, justice is understood as what is lawful, and the just person is equivalent to the moral person. In the latter sense, justice is understood as what is fair or equal, and the just person is one who takes only a proper share. Aristotle focuses his discussion on justice as a part of virtue, which further divides into distributive justice, corrective justice, and justice in exchange. Each of these varieties of justice can be understood to be concerned with achieving equality. For distributive justice it is equality between equals; for corrective justice it is equality between punishment and the crime; and for justice in exchange it is equality between whatever goods are exchanged. Aristotle also claims that justice has both its natural and conventional aspects: This twofold character of justice seems to be behind Aristotle's discussion of equity, in which equity, which is a natural standard, is described as a corrective to legal justice, which is a conventional standard.

Note that few of the distinctions Aristotle makes seem tied to the acceptance of any particular conception of justice. One could, for example, accept the view that justice requires formal equality, but then specify the equality that is required in different ways. Even the ideal of justice as giving people what they deserve, which has its roots in Aristotle's account of distributive justice, is subject to various interpretations. An analysis of the concept of desert would show that there is no conceptual difficulty with claiming, for example, that every-one's needs should be satisfied or that everyone deserves an equal share of the goods distributed by society. Consequently Aristotle's argument is primarily helpful in clarifying the distinctions that can be made within the concept of justice without committing oneself to any particular conception of justice.

Rather than discussing the particular requirements of communitarian justice, proponents have frequently chosen to defend it by attacking other concepts. They have focused their criticism on the welfare liberal conception of justice.

Alasdair MacIntyre, for example, argues, in "The Privatization of the Good" (1990), that virtually all forms of liberalism attempt to separate rules defining right action from conceptions of the human good. MacIntyre contends that these forms of liberalism not only fail but have to fail because the rules defining right action cannot be adequately grounded apart from a conception of the good. For this reason, MacIntyre claims, only some version of a communitarian theory of justice that grounds rules supporting right action in a complete conception of the good can ever hope to be adequate.

But why not view most forms of liberalism as attempts to ground moral rules on part of a conception of the goodspecifically, that part of a conception of the good that is more easily recognized, and should be publicly recognized, as good? For Rawls, for example, this partial conception of the good is a conception of contractual fairness, according to which no one deserves his or her native abilities or his or her initial starting place in society. If this way of interpreting liberalism is correct, then, in order to evaluate welfare liberal and communitarian conceptions of justice properly, we would need to do a comparative analysis of their conceptions of the good and their practical requirements. Moreover there is reason to think that once the practical requirements of both liberal and communitarian conceptions of justice are set out, they will be quite similar.

Feminist Justice

Defenders of a feminist conception of justice present a distinctive challenging critique to defenders of other conceptions of justice. In his The Subjection of Women (1869) Mill, one of the earliest male defenders of women's liberation, argues that the subjection of women was never justified but was imposed upon women because they were physically weaker than men; later this subjection was confirmed by law. Mill argues that society must remove the legal restrictions that deny women the same opportunities enjoyed by men. However Mill does not consider whether because of past discrimination against women it may be necessary to do more than simply remove legal restrictions: He does not consider whether positive assistance may also be required.

Usually it is not enough simply to remove unequal restrictions to make a competition fair. Positive assistance to those who have been disadvantaged in the past may also be required, as would be the case in which some competitors were unfairly impeded by having to carry ten-pound weights for part of a race. To render the outcome of such a race fair, it may be necessary to transfer the weights to other runners, and thereby advantage the previously disadvantaged runners for an equal period of time. Similarly positive assistance, such as affirmative action programs, may be necessary to enable women who have been disadvantaged in the past to compete fairly with men.

In Justice, Gender, and the Family (1989), Susan Okin argues for the feminist ideal of a gender-free society. A gender-free society is a society where basic rights and duties are not assigned on the basis of a person's biological sex. Since a conception of justice is usually thought to provide the ultimate grounds for the assignment of rights and duties, we can refer to this ideal of a gender-free society as feminist justice.

Okin goes on to consider whether Rawls's welfare liberal conception of justice can support the ideal of a gender-free society. Noting Rawls's failure to apply his original position-type thinking to family structures, Okin is skeptical about the possibility of using a welfare liberal ideal to support feminist justice. She contends that in a gender-structured society, male philosophers cannot achieve the sympathetic imagination required to see things from the standpoint of women. According to Okin, original position-type thinking can only really be achieved in a gender-free society.

Yet while Okin despairs of doing original position-type thinking in a gender-structured society, she herself does a considerable amount of just that type of thinking. For example, she claims that Rawls's principles of justice "would seem to require a radical rethinking not only of the division of labor within families but also of all the nonfamily institutions that assume it" (p. 104). She also argues that "the abolition of gender seems essential for the fulfillment of Rawls's criterion of political justice" (p. 104). Okin's own work indicates that people can engage in original position-type thinking and her reasons for arguing otherwise are not persuasive. It is not necessary that all people have the capacity to put themselves imaginatively in the position of others, just that some have the ability to do so. Some people may not be able to do original position-type thinking because they have been deprived of a proper moral education. Others may be able to do original position-type thinking only after they have been forced to mend their ways and live morally for a period of time.

Even among those in our gendered society who are, generally, capable of a sense of justice, some may not be able to do original position-type thinking with respect to the proper relationships between men and women and may acquire the ability only after laws and social practices shift significantly toward a more gender-free society. Others may have the ability to think in this in this way, having effectively used the opportunities for moral development available to them to achieve the necessary sympathetic imagination.

Conclusions

What conclusions should we draw from this discussion of libertarian, socialist, welfare liberal, communitarian, and feminist conceptions of justice? Is MacIntyre's opinion, described in After Virtue (1981), that such conceptions of justice are incommensurable and, hence, there is no rational way of deciding between them correct? Many philosophers have challenged this view, and even MacIntyre, in Three Rival Versions of Moral Enquiry (1990), has significantly qualified it, contending that it is possible to argue across conceptions of justice.

One could also conclude that if the ideal of liberty of libertarian justice can be shown to require the same rights to welfare and equal opportunity that are required by the welfare liberal conception of justice, and if the communitarian critique of welfare liberalism can be rebutted, that it may then be possible to reconcile, at a practical level, the differences between welfare liberal justice, socialist justice, and feminist justice. To reasonably resolve our disputes about justice, we then need only understand the shared practical requirements of these conceptions of justice and simply act upon them.

It can be argued, however, that even if these conceptions of justice can be reconciled in practice, such reconciliation would not have cross-cultural validity because the discussion derives primarily from Western philosophical traditions. While this objection cannot be fully addressed in the absence of a detailed examination of non-Western conceptions of justice and morality, there is good reason to think that, like the results of a well-reasoned discussion of mathematics derived from Western sources, this discussion of conceptions of justice also has cross-cultural validity. The conceptions of justice considered here arguably run the full gamut from least demanding (libertarian justice) to most demanding (socialist justice). Egoism is less demanding than libertarian justice, but it is a not a moral view because egoism entails a rejection of morality. Pure altruism is more demanding than socialist justice, but no conception of justice could require us to sacrifice ourselves to the degree that pure altruism does; pure altruism goes beyond the requirements of justice and morality. If libertarian justice and socialist justice, and those conceptions that purportedly fall in between, can all be practically reconciled in the way suggested, there is good reason to think that the argument is valid not only for Western philosophical traditions but cross-culturally as well.

See also Liberalism ; Marxism ; Virtue Ethics .

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