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.
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.
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 ’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.”
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.
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.]
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.]
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.
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.
[See also the articles listed underLAW.]
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 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. 427–347 BCE) portrays justice as the right ordering of the parts of the individual soul and the groups of persons in the city. Aristotle (384–322 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 one’s 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 one’s 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 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 (1588–1679) 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  1962, p. 113). Justice, for Hobbes, has its ground in self-preservation and self-interest. John Locke (1632–1704) 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.
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 (1806–1873) 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?
The American philosopher John Rawls (1921–2002) was the twentieth century’s 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  1999, p. 3). Rawls’s 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 everyone’s advantage, and (b) attached to positions and offices open to all” (Rawls  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 society’s 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 individual’s “merit” is generally the result of luck rather than desert.
Rawls’s 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 (1938–2002), viewed Rawls’s principles as leading to infringements of individual liberty because of Rawls’s 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 Rawls’s 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 (1946–2004) 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, Rawls’s 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
Aristotle. 1985. Nicomachean Ethics. Trans. Terence Irwin. Indianapolis, IN: Hackett.
Hobbes, Thomas.  1962. Leviathan, or the Matter, Form, and Power of a Commonwealth Ecclesiastical and Civil, ed. Michael Oakeshott. New York: Collier.
Locke, John.  1980. Second Treatise of Government, ed. C. B. Macpherson. Indianapolis, IN: Hackett.
Mill, John Stuart.  2002. Utilitarianism, 2nd ed., ed. George Sher. Indianapolis, IN: Hackett.
Rawls, John.  1999. A Theory of Justice, rev. ed. Cambridge, MA: Belknap.
Rawls, John. 2001. Justice as Fairness: A Restatement, ed. Erin Kelly. Cambridge, MA: Belknap.
"Justice." International Encyclopedia of the Social Sciences. . Encyclopedia.com. (September 12, 2018). http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/justice-0
"Justice." International Encyclopedia of the Social Sciences. . Retrieved September 12, 2018 from Encyclopedia.com: http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/justice-0
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397. Justice (See also Lawgiving.)
- Aeacus a judge of the dead. [Rom. Lit.: Aeneid ]
- Ahasuerus (519–465 B.C.) Persian king rectifies wrongs done to Jews. [O.T.: Esther 8:7–8]
- 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 d’Arthur ]
- Asha in moral sphere, presides over righteousness. [Zoroastrianism: Jobes, 138]
- Astraea goddess of justice. [Gk. Myth.: Benét, 59]
- Barataria island-city where Sancho Panza, as governor, settles disputes equitably. [Span. Lit.: Cervantes Don Quixote ]
- blindfold worn by personification of justice. [Art: Hall, 183]
- blue in American flag, symbolizes justice. [Color Symbolism: Leach, 242; Jobes, 356]
- Brown vs. Board of Education landmark Supreme Court decision barring segregation of schools (1954). [Am. Hist.: Van Doren, 544]
- Cambyses, Judgment of corrupt judge’s flayed flesh provides judicial throne. [Gk. Hist.: Herodotus ]
- Carlos, Don conscience piqued, tries to lift Spanish yoke from Flemish. [Ger. Lit.: Don Carlos ]
- Cauchon, Bishop presided impartially over the ecclesiastical trial of Joan of Arc. [Fr. Hist.: EB, (1963) V, 60]
- Dike one of Horae; personification of natural law and justice. [Gk. Myth.: Zimmerman, 85]
- Gideon v. Wainwright established right of all defendants to counsel (1963). [Am. Hist.: Van Doren, 585]
- 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]
- Henry VII (1457–1509) deliverer of Richard III’s just deserts. [Br. Lit.: Richard III ]
- International Court of Justice main judicial organ of U.N. [World Hist.: NCE, 1351]
- Libra sign of the balance, weighing of right and wrong. [Zodiac: Brewer Dictionary, 640]
- Minos his justice approved even by the gods; became one of the three judges of the dead. [Gk. Myth.: Zimmerman, 168]
- Moran equitable councillor to King Feredach. [Irish Hist.: Brewer Dictionary, 728]
- Moran’s collar strangled wearer if he judged unfairly. [Irish Folklore: Brewer Dictionary, 728]
- Nuremberg Trials surviving Nazi leaders put on trial (1946). [Eur. Hist.: Van Doren, 512]
- Portia as a lawyer, ingeniously interprets to Shylock the terms of Antonio’s bond. [Br. Drama: Shakespeare The Merchant of Venice ]
- 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]
- Rhadamanthus made judge in lower world for earthly impartiality. [Gk. Myth.: Brewer Handbook, 911]
- rudbeckia indicates fairness. [Flower Symbolism: Flora Symbolica, 177]
- scales signify impartiality. [Art: Hall, 183]
- scepter denotes fairness and righteousness. [Heraldry: Halberts, 37]
- Solomon perspicaciously resolves dilemma of baby’s ownership. [O.T.: I Kings 16–28]
- stars, garland of emblem of equity. [Western Folklore: Jobes, 374]
- sword and scales attributes of St. Michael as devil-fighter and judge. [Christian Symbolism: Appleton, 98]
- 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 ]
- Valley of Jehoshaphat where men will be ultimately tried before God. [O.T.: Joel 3:2]
- World Court popular name for International Court of Justice which assumed functions of the World Court. [World Hist.: NCE, 3006–3007]
- Yves, St. equitable and incorruptible priest-lawyer. [Christian Hagiog.: Attwater, 347
Kidnapping (See ABDUCTION .)
Killing (See ASSASSINATION, INFANTICIDE, MURDER, PATRICIDE .)
"Justice." Allusions--Cultural, Literary, Biblical, and Historical: A Thematic Dictionary. . Encyclopedia.com. (September 12, 2018). http://www.encyclopedia.com/education/dictionaries-thesauruses-pictures-and-press-releases/justice
"Justice." Allusions--Cultural, Literary, Biblical, and Historical: A Thematic Dictionary. . Retrieved September 12, 2018 from Encyclopedia.com: http://www.encyclopedia.com/education/dictionaries-thesauruses-pictures-and-press-releases/justice
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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 / -ˌship/ n. (in sense 2).
"justice." The Oxford Pocket Dictionary of Current English. . Encyclopedia.com. (September 12, 2018). http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/justice-0
"justice." The Oxford Pocket Dictionary of Current English. . Retrieved September 12, 2018 from Encyclopedia.com: http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/justice-0
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So justiciar (hist.) xv, justiciary XVI. —medL. justitiārius; see -AR, -ARY.
"justice." The Concise Oxford Dictionary of English Etymology. . Encyclopedia.com. (September 12, 2018). http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/justice-1
"justice." The Concise Oxford Dictionary of English Etymology. . Retrieved September 12, 2018 from Encyclopedia.com: http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/justice-1
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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.
"Justice." West's Encyclopedia of American Law. . Encyclopedia.com. (September 12, 2018). http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/justice
"Justice." West's Encyclopedia of American Law. . Retrieved September 12, 2018 from Encyclopedia.com: http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/justice
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This entry includes three subentries:Overview
Justice in American Thought
Justice in East Asian Thought
"Justice." New Dictionary of the History of Ideas. . Encyclopedia.com. (September 12, 2018). http://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/justice
"Justice." New Dictionary of the History of Ideas. . Retrieved September 12, 2018 from Encyclopedia.com: http://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/justice
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"justice." A Dictionary of Sociology. . Encyclopedia.com. (September 12, 2018). http://www.encyclopedia.com/social-sciences/dictionaries-thesauruses-pictures-and-press-releases/justice
"justice." A Dictionary of Sociology. . Retrieved September 12, 2018 from Encyclopedia.com: http://www.encyclopedia.com/social-sciences/dictionaries-thesauruses-pictures-and-press-releases/justice
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"justice." Oxford Dictionary of Rhymes. . Encyclopedia.com. (September 12, 2018). http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/justice
"justice." Oxford Dictionary of Rhymes. . Retrieved September 12, 2018 from Encyclopedia.com: http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/justice
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The complete integration of love and justice is the chief characteristic of Christian moral doctrine besides its Christocentric orientations. It is through love of God and neighbor that the kingdom of God is achieved within us. And yet this love cannot be authentic unless the Christian also continually attempts to form the external world by the same dynamic force. Only thus does man honestly respond to the justice that God has gratuitously given him. This article therefore considers the relation between the justice received from God and the cardinal virtue of justice, and then the relation of justice to love. It then distinguishes, without unduly separating, the basic moral attitude of justice from objective right and especially from legal right, and with this as a background considers the various species and characteristics of justice.
Justice, Love, and Right (Ius)
From a theological point of view, justice among men is not primary. The primacy belongs rather to God's own sovereign justice, bestowed on and thus obligating man as a creature, justifying sinners with utter gratuity, making them just and simultaneously, with and through gratuitous justice, making them capable of a newer and "better justice." Theologically prior to justice among men is the awareness that the "justice" owed to God in a thousand ways is an absolutely free and yet absolutely binding love involving a man totally. In the biblical-theological view, justice among men deserves the name justice in the full sense only if it is accomplished with a view toward God in that love and thanksgiving and obedience are owed to God absolutely.
In this respect biblical thought is fundamentally different from the anthropocentrism of Aristotelian and Stoic thought. The relation of man to God is far different from a relation between equals, and it involves far more than a strict equality between giving and receiving. And yet in the relation of man to God the essential structure of all genuine justice is verified. Man in his totality, with whatever good there is in him, is a gift of God, a gift in person. And in the life of grace God gives man His most personal love. In the relation of man to God it is therefore a question of the original and absolute duty of "justice" that finds expression in piety and in the worship of God. "What can I give to the Lord for all that He has given me?" (Ps 115.12). The exemplar of justice is Jesus, who in His sacred humanity gave Himself up to the Father for man's redemption from that most fundamental injustice: sin. Speaking to the Baptist of the baptism of penance that He would finally achieve on the Cross, Christ said, "… it becomes us to fulfill all justice" (Mt 3.15). God's superabundant fidelity and love make man perpetually indebted, and man cannot presume ever to even accounts. "When you have done everything that was commanded you, say, 'We are unprofitable servants; we have done what it was our duty to do"' (Lk 17.10).
The worship of God that man as a creature and a member of the family of God can offer to the Creator and the Father must be the most righteous possible. But the Christian must be extremely careful to avoid self-righteousness and self-satisfaction, precisely on the basis of justice. Worshipful justice makes one aware that "he who is just, let him be just still" (Rv 22.11).
If, after the manner of the Pharisee, the notion of justice among men, which is basically measured in terms of objective equality, is univocally applied to the relation of man to God, then authentic religion is greatly endangered. The situation must be reversed: that better justice demanded by, and owed to, God should serve as model and mollifier of justice among men, which tends toward a certain rigidity if it is not thus spiritualized and purified. Justice among men will become a genuinely Christian virtue only if it is an extension of that grateful justice that is owed to God.
Justice and Love. The question of the point of departure and the point of view is decisive for a specifically Christian and a truly human understanding of justice. If one looks first to external relations and sees them as objective and regards personal relations, on the contrary, as "merely" subjective, then justice becomes mere external order. Connected with this is the view that considers man as primarily a possession of the state, which overemphasizes the juridical order. But if the person, with his essential relation to the Thou and the We, is taken as the point of departure, and if the personal community is considered above all in terms of the intimate community of the family, then, with complete necessity, love is seen as primary and justice is the mediator in the personal order of love, preserving the capacity of the person for love. The theological viewpoint decisively corroborates this position: God is love, and every revelation of His justice, all His justifying action, speaks primarily of His love.
If one treats justice one-sidedly in terms of material goods (acquisition, property, exchange), then only with difficulty can he arrive at a comprehensive view. The person has rights that stand on a much higher plane than property rights. To another, not his goods but his personal dignity and personal rights are due before all else. But without love—i.e., without that attitude that is directed to the person as such—the most sublime rights of the person and of the community cannot be fully and authentically recognized at all. On the other hand, the fulfillment of the duties of justice directly related to measurable values clears away many obstacles that stand in the way of love—although indirectly the person must indeed always be cointended as the bearer of these rights. Thus the basic ontological order is love, then justice; but, in terms of the gradual achievement of order, the order may be justice, then love.
When it is a case of an order imposed from without and enforceable by sanction, then justice is directly intended and love only indirectly. Civil society or a financial undertaking cannot synthesize love and justice in the same way as the intimate community of marriage. But when men intend to order their common undertakings in a human way, then justice must place itself at the service of the community, and thus at the service of love. But love does not render superfluous or cancel out either justice in the material order, which measures according to the most exact standards possible, or the external order of law. These orders of justice must remain as long as all men have not yet achieved the perfection of love, i.e., as long as this world lasts. It is significant that in the opinion of many of the Church Fathers and theologians the necessity of a juridical order stems principally from original sin.
In considering the relation of love and justice, the following basic propositions must come into play: (1) Love is more basic than justice. (2) Love best guarantees the fulfillment of justice; and, correspondingly, failure in justice points to a failure of love. (3) The aim of justice must be achieved in the spirit of love. (4) Love gives clear vision and full extension to justice. (5) When there is question of one's own activity, one who bases himself on love considers primarily not the minimum requirements of justice but the actual needs of his neighbor and of the community; and when there is question of claims against or the imposition of burdens on others, he is above all careful to demand no more than that to which he has clear title. (6) Love is always prepared to suspend one's own rights for the good of another, assuming, of course, that the rights are such that they can be given up without damage to one's own integrity and that of the community. That love is indeed great that considers whatever is here and now obstructive to one's neighbor and the community as no longer a right at all, demonstrative legal title and honest acquisition to the contrary notwithstanding. For love there is a clear distinction between abstract right and the actual need for that right.
Every duty in justice is a duty in love, for every external order must be simultaneously informed by the personal dynamic force of order, which is love. And yet not every duty in love is strictly a duty in justice. Before God, the duties of love are no less binding than the duties of justice. Yet much more than the duties of justice, the duties of love are measured by the progress of the person in good. It is only through growth in love that one gradually comes to recognize better the real and exalted demands of the chief commandment: to love God and one's neighbor "according to the measure of the gifts of grace." This is not true of justice in the same measure. Here there is a clear contrast with the universally binding minimum standards. Here there is likewise a basis for the fact that systems of instruction in moral theology that are chiefly concerned with what one must demand of everyone in the confessional depend on the tract "Right and Justice" rather than on the description of the essence of love.
Justice and Right. In considering justice further, one must distinguish three facets: (1) the basic attitude (virtue) of justice that is a constant disposition to give to each his due; (2) the objective right (ius ) that is owed objectively to each person and community, either on the basis of divine law or on the basis of the just legislation of the Church or of the State; and (3) the statute itself. Basic moral insight and the virtue of prudence are concerned with seeing what is due, not only abstractly and universally but also concretely, here and now. However, the virtue of justice facilitates the unbiased search for objective right and—this is its main function—determines the will to acknowledge and fulfill that right. The legislation of the Church and of the State is necessary. In part it merely corroborates what is due on the basis of divine law; in part it more carefully determines that which answers to the nature and calling of man in any given historical situation; and in part it represents a selection from among many possible legitimate arrangements, so that it might guarantee a common life and activity that are orderly and peaceful.
A purely mechanical fulfillment and application of the positive law without the control of the virtues of prudence and justice make life in society unworthy of man and, in the long run, unjust as well. When it comes to considering positive (legislated) law, one must first ask whether it answers to the objective requirements of justice. A positive law can entail injustice either if it violates the demands of divine law (natural or revealed)—in which case compliance is not allowed—or if it is basically neither necessary nor actually useful—in which case prudence determines, with the well-being of the community and of the person in mind, whether compliance or noncompliance is better. A law may be initially just, but because of altered circumstances it can become useless and unjust. In a situation in which the authority is duly constituted and functioning properly, one's decision should favor the law whenever there is real doubt. But when the authorities are either totally incapable or completely criminal, critical sense must be employed. The virtue of prudence will normally be exercised in determining whether and in what way the application of the law in the concrete circumstances of the here and now corresponds to true justice. Without epikeia, without dispensation or the responsible excusing of oneself from the law itself or from its literal fulfillment when circumstances require it, compliance with positive law cannot truly correspond for any length of time to the virtue of justice.
The individual approaches the full realization of the basic virtue of justice only by constantly striving for it. Similarly, there is an essentially dynamic character to the science of human rights and of legislation. Consider, for example, the cases of slavery and of racial integration. There was a time when the abolition of slavery was utopian, when the immediately pressing duty was the mitigation of the condition of the slaves. (Of course this does not imply blamelessness in the fact that the recognition of the complete abolition of slavery as the only solution in keeping with the dignity of man came so late in history.) The same is true of the complete integration of the various races.
The Virtue of Justice and Its Subspecies
According to the common definition of St. thomas aquinas, the virtue of justice is "the strong and firm will to give to each his due" (ST 2a2ae, 58.1). This does not imply that to each exactly the same is due. Apart from commutative justice, which aims at complete parity between what is given and what is due in return (give and take), justice demands an equality of proportion. Only in matters in which one is equal to the other is there question of exact equality; in cases in which men differ the degrees and types of right must be distinguished. Indeed, the sub-species of justice are distinguished according to the types, the bearers, and the executors of right.
Commutative Justice. In iustitia commutativa the private person as well as groups (communities as moral persons) are the bearers of right. The aim of this right is the utility of both parties who exchange their goods or services. Commutative justice demands that one strive for a fair standard of giving and receiving in return. It forbids encroaching on the rights of others. Basic violations of commutative justice are theft, fraud, unjust damage.
General, or Legal, Justice. In iustitia generalis, or legalis, the community is the bearer of rights. This right intends the common good. Its fulfillment is the work of official agencies of the community, as well as of each individual member. The legislative authorities exercise legal justice through the promulgation of laws that further the common good. The government in its executive officials achieves it by the sensible use of existing just laws and by taking whatever measures are necessary for the common good. And every member of civil society exercises it by backing good legislation and government (through voting, influencing public opinion, and the like) and by intelligently obeying the existing laws for the sake of the common good. For St. Thomas, the complete range of moral virtues is seen from the perspective of general, or legal, justice, which subordinates every legitimate activity to the common good (ST 2a2ae, 58.5). In this way he considers it as the chief of all moral virtues, for the common good takes precedence over that of the individual (ST 2a2ae, 58.12). This indicates the essentially social—and ultimately the salvific-social—perspective of Christian morality. However, the common interpretation of legal justice is not so broad.
Distributive Justice. Iustitia distributiva intends the good of each individual as a member of the community. In feudal times and still more in the age of absolutism, it seemed that the governmental agency alone exercised this virtue. In a democratic age it evidently affects every citizen not only to the extent that the just distribution of burdens or privileges is a matter of concern to each but also to the extent that each should actively assert his influence to that end. Every individual has basic rights within the community that the community as a whole and each of its agencies and members must recognize. One sins against distributive justice by stirring up and advocating group and class egoism.
Legal and distributive justice have a certain proportion to each other: the more the individual devotes his powers to the common good, so much the more must the community also devote to his good. And yet this basic proposition should not be exaggerated, nor should it be considered in terms of commutative justice, for the fundamental relation between community, group, and individual is not that of mere service and reward. Rather, as in an organism, special care is due to the weak member. And the powerful are bound to renounce all privileges, however they may have been obtained, that infringe on the basic rights and the true good of the other members of the community.
Social Justice. In the age of privileged classes and even more in the age of individualism, doctrinal presentations of distributive (and also legal) justice ignored a perspective that has been added in the 20th century, namely, that of justice of the common good, or social justice. Iustitia socialis has become recognized as a new and important subspecies of the virtue of justice since Pius XI's encyclical Quadragesimo anno. It includes both legal and distributive justice, and yet its chief concern is not so much strict legal rights and duties as it is the natural rights of the community, its members, and the member communities of the family of nations in their relations to one another.
In keeping with the pressing question of the just social position of the worker, the notion of social justice was first applied basically and primarily to the relation between the owner of capital, the entrepreneur, and the worker as members of various social groups. Among other things, that meant the worker should be paid as a member of a family; that the shares of wages and profits, the allotment of the social products to each, should be computed with an eye toward the good of the industry, the general economy, and the social order.
In an age of steadily increasing economic complexity, of countless interrelations, and a solidarity that extends far beyond particular industries, indeed beyond national economies, it becomes much more apparent than in the ages of household and city economy that the principles of commutative justice alone are entirely insufficient. There is much more involved in every transaction than mere exchange between private parties, for every transaction presupposes countless prior transactions on the part of the society. And ultimately it is not merely a question of transactions and prior transactions. A truly realistic view of justice, achieved only gradually in the modern age, envisions above all the community of persons naturally established by God: the common family of all mankind. Every talent and all possessions are bestowed by God with a view toward the totality. The person unfolds to the highest level of his being only in solidarity. Every form of justice is included in and presupposed by social justice, but in the latter case it is always a question of rights and duties that derive from the nature of the human community and of the person. Transactions are not primary. It is rather the social nature of man that is primary, the encompassing social purpose of all earthly goods, and also the abilities of the person.
The Family. Social justice encompasses every community from the family to the community of nations. The child as a person and as a member of the human community has inalienable rights—above all, the right to life (and that indeed from the moment of conception), the right to be born into a wholesome family (from which follow the immorality of extramarital intercourse and a whole set of community obligations for safeguarding the family), and the right to education and support. Every community, from the family on up to the state and the community of nations, has to attend to and, as far as possible, to protect these rights. Because of their parenthood, because of their place in the community, parents owe to the child all that is requisite for healthy physical and spiritual development and for membership in human society. This social obligation depends on their means and on their ability to work, but first and most basically on the fact that they are parents. Similarly, on the basis of his belonging to the family, the child has the obligation, to the extent that it is possible within the family, to be concerned with the progress of the family in every regard and above all to show love for his parents in return for their love. But this is not a debt that could be paid off on the basis of commutative justice. It is the response required by the very nature and position of the child as a member of the family. And it becomes real and urgent also if— and perhaps only if—other members of the family are remiss.
Civil Government. Beginning with the smaller groups and next higher communities and extending on up to the state and the community of nations, the government has the duty of safeguarding the inalienable rights of each member of the community. Such rights would be, for example, the rights to life, security, intellectual and religious freedom, and the opportunity to work according to one's capacity, so long as one does not forfeit one or the other of these rights by wrongdoing, thus bringing into play penal justice.
Social justice demands that neither the person nor the group be deprived of its proper functions. On the contrary, the fundamental principle of subsidiarity—a typical expression of social justice—requires the higher community, from the family on up, to do all that it can to preserve the functional integrity of the lower community and the person and also, if necessity forces it to take over the lower role, to reestablish it, having taken on this function only temporarily and as a substitute measure. Conversely, the person and the group must be constantly prepared to preserve the functional integrity of every higher group and of society as a whole at their own levels.
International Community. In the mid-20th century the solidarity of the community of nations has strongly come to the fore. Through the development of modern technology and culture, nations have grown more closely together and now demonstrate in very many ways that the general welfare of each nation individually and of all nations collectively are closely linked. Catholic social teaching (above all, Mater et Magistra, Pacem in terris, and the Constitution of Vatican Council II On the Church and the Modern World ) has made a decisive contribution to the further development of a worldwide view of common welfare justice. The nations especially favored by nature and history are obliged to come to the aid of the poor nations seeking further technological and cultural advancement, until the poor nations reach their full functional capacity and corresponding autonomy within the community of nations. Aid for development and promoting practicable possibilities for emigration are not charitable "alms" but rather actual demands of the social order and duties in justice for the sake of peace. Such help should not be made to depend on repayment, which is often quite impossible.
Boundaries between Justice and Love. Social justice presupposes deep insight into the social nature of man and into the essential purpose of the different types of community. The boundaries between justice and love are drawn strictly or more loosely, depending on the situation. Much of what was seen in the past as a mere "duty of love" or as gratuitous almsgiving is now clearly seen as a requirement of social justice if one considers the essential solidarity of the family of mankind. This advancement approximates the view of the Church Fathers (despite differences in social and economic structures and in the tasks at hand), who, moreover, saw this essential solidarity not from the viewpoint of justice among men but from the perspective of divine justice and evangelical love. Finally, social justice can endure in its full breadth and height only in terms of faith in God, the giver of all good gifts, and in the unity of the human race in God's sight. It is the familial justice of the creatures of God and the children of God, the basic attitude of the "family of God."
Such an approach to social justice in no way allows men to be self-satisfied after the manner of those who are just according to the law. It is an essentially dynamic view that keeps them aware of the perpetually approximative and imperfect character of every fulfillment. It attempts to take the next step that is historically possible at any given time.
Penal Justice. Iustitia vindicativa is the temperate will to restore violated justice and order through punishment proportionate to the violation and to the exigencies of the social order. It is above all a virtue proper to superiors and judges, who, in meting out punishment, should aim only at the furtherance and protection of the common good (public order and safety, confidence in justice and the sense of right). But it is also a virtue of the subject who is prepared to undergo due punishment if necessary and a virtue of other members of the community who contribute to the restoration of violated justice and order (see vengeance).
Characteristics of Justice. The obligations of justice can be strictly and objectively determined, at least in their basic form, without regard to the gifts and the particular level of virtue of each individual, even if the process of determination is conditioned by change and history. In the case of justice, it is not directly and primarily a question of personal relations but of the order of possessions and goods—always, of course, with a view toward the person and the community. However, as regards goods, not only material goods should be considered but also the higher cultural goods—indeed, even truth, fidelity, and honor—insofar as they concern the necessary functioning of communal life. In contrast to legal right, it is a peculiarity of the virtue of justice that it is never fully enforceable, even though a certain measure of enforceability is required by the very nature of justice. The limits of enforcement are set by the clearly discernible rights and by the nature of the common welfare, which can be very much endangered by the excessive use of force; for it is a question of the common welfare that has as its very center the spirit of liberty that moves men to the free fulfillment of what is just.
Bibliography: e. brunner, Gerechtigkeit (Zurich 1943). g. del vecchio, Justice: An Historical and Philosophical Essay, ed. a. h. campbell, tr. lady guthrie (New York 1953); Philosophy of Law, tr. t. o. martin (Washington 1953). a. descamps, Les Justes et la justice dans les évangiles et le christianisme primitif hormis la doctrine proprement paulinienne (Louvain 1950). b. hÄring, The Law of Christ: Moral Theology for Priests and Laity, tr. e.g. kaiser (Westminster, Md. 1961–). f. heidsieck, La Vertu de justice (Paris 1959). v. heylen, Tractatus de iure et iustitia (5th ed. Mechlin 1950). h. merschmann, Die dreifache Gerechtigkeit: Grundgedanken der scholastischen Gesellschaftslehre (Recklinghausen 1946). j. messner, Social Ethics: Natural Law in the Modern World, tr. j. j. doherty (new ed. St. Louis 1964). r. niebuhr, Love and Justice, ed. d. b. robertson (Philadelphia 1957). j. pieper, Justice, tr. l. e. lynch (New York 1955). p. tillich, Love, Power, and Justice (New York 1960).
"Justice." New Catholic Encyclopedia. . Encyclopedia.com. (September 12, 2018). http://www.encyclopedia.com/religion/encyclopedias-almanacs-transcripts-and-maps/justice
"Justice." New Catholic Encyclopedia. . Retrieved September 12, 2018 from Encyclopedia.com: http://www.encyclopedia.com/religion/encyclopedias-almanacs-transcripts-and-maps/justice
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Justice names not a thing, but a property of things. It makes sense therefore to focus the explication on the adjective "just"—or, better still, "unjust." Doing so facilitates clarification of how justice judgments are distinctive within the larger realm of moral judgments, and the even larger universe of evaluative judgments.
The application of ordinary empirical predicates, such as "tree" or "hard," is two-tiered: based on a definition and empirical facts. Any dispute about whether such a predicate applies thus reduces to linguistic and empirical differences. Such a dispute can be resolved by agreeing on a definition and settling the empirical disagreement.
Evaluative predicates, by contrast, have this special feature that their application is only conditioned, not determined, by their definition and the empirical facts. Thus, people can disagree about whether a painting is beautiful, even if they use this predicate in exactly the same sense and also agree about all empirical features of the painting. In such cases it may be said that they have different conceptions of beauty.
The same holds for moral predicates. Despite agreement on all relevant empirical facts, people disagree about whether something is praiseworthy or not. Such a disagreement could stem from one party's failure to understand the meaning of the word; but more typically the disputants know what the word means, and their disagreement shows then that the empirical facts and the meaning of the word together do not determine its correct application. Those who judge it praiseworthy to teach children through beatings are morally mistaken; they need not linguistic instruction to improve their understanding of "praiseworthy," but a good discussion about how children should be educated.
A dispute over the application of an evaluative predicate such as "just" may thus be due to differences of three kinds: linguistic differences about its meaning; theoretical differences about which substantive conception or criterion of justice should guide its application; and empirical differences about the evaluated object.
The boundaries between these three kinds of differences is not sharp and may shift over time, as Wittgenstein memorably describes:
It might be imagined that some propositions, of the form of empirical propositions, were hardened and functioned as channels for such empirical propositions as were not hardened but fluid; and that this relation altered with time, in that fluid propositions hardened, and hard ones became fluid. The mythology may change back into a state of flux, the riverbed of thoughts may shift. But I distinguish between the movement of the waters on the riverbed and the shift of the bed itself; though there is not a sharp division of the one from the other.… And the bank of that river consists partly of hard rock, subject to no alteration or only to an imperceptible one, partly of sand, which now in one place now in another gets washed away, or deposited. (Wittgenstein 1969, §§ 96, 97, 99)
Not discussed by Wittgenstein, the boundary between linguistic and theoretical differences (in the case of evaluative predicates) is fuzzy and fluid in part because the controversies among competing conceptions reflect back upon the concept. Each conception seeks to introduce a certain order and unity. And sometimes elements of such a conception are widely found to be so convincing that they harden into an element of the concept.
The predicates "just" and "unjust" have not merely an evaluative but also a normative—hence conductguiding—function. Calling a possible action or law unjust is to oppose its implementation. To be sure, people do make justice judgments about the distant past, about hypotheticals and fiction. But even these judgments imply oughts—for example: that the Athenians ought not to have attacked neutral Melos; that it would have been all right for them to attack a Melos allied with Sparta; or that Angelo (in Shakespeare's Measure for Measure ) ought not to have demanded Isabella's virginity for the life of her brother.
The words "rational" and "irrational" are also conduct-guiding in this sense. Yet there is a difference. Whether an action is rational or irrational depends on the ends of the actor. Whether it is just or unjust is independent of these ends. Insofar as even an agent's ultimate ends can be criticized as irrational (Parfit), this difference becomes less deep. Like morality, rationality can then deliver unconditional judgments: an action is irrational if it was performed in pursuit of an irrational end.
Generally, claims of injustice are meant to evoke emotional rejection: condemnation, outrage, resentment. But this may be part not of the meaning of the word but of the usual pragmatic context of its employment.
The meaning of predicates is partly determined by their domain of application. Anyone who understands the meaning of "beautiful" and "just" knows how the domains of these predicates differ—knows, for instance, that a painting can be (un)beautiful but not (un)just whereas a patent regime can be (un)just but not (un)beautiful.
Things to which evaluative predicates are applicable can thus be called judicanda, from the Latin judicandum : that which is to be judged. The judicanda of justice may be categorized under four headings:
(a) individual and collective actors; that is, individuals as well as organized and unorganized groups such as a family, firm, state, or mob;
(b) the conduct of such actors, their actions and omissions;
(c) social rules, such as laws, social institutions, and conventions;
(d) states of affairs and events, such as the fact that some are much worse off than others or that some good persons suffer while some bad ones enjoy good fortune.
Because of the normativity of justice assessments, judicanda of the first two categories have a certain primacy. It is ultimately actors—and their conduct—who bear responsibility for the justice of social rules and, in part through these rules, for the justice of states of affairs. To be sure, sometimes people complain of injustice in states of affairs beyond human control. Such complaints may have a religious context; but they may also, where religion has faded, constitute a purely evaluative (nonnormative) use of "unjust."
One may think that this list is underinclusive, that human feelings constitute a fifth judicandum as exemplified by the anger of Achilles and its critique as unjust. But such locutions are better understood as meaning to assess the person and her or his conduct. It is Achilles whose justice is in question—on account of his tendency to get angry allegedly without good reason. Thus, talk of unjust feelings is imprecise, meant to call into question the justice of the person who feels this way.
One may think that the first category reduces to the second in a similar way: that justice assessments of actors really mean to judge these actors' conduct, and that the list is therefore overinclusive. But the nature of such a reduction would be controversial: Do assessments of actors refer to their actual conduct, to their conduct dispositions, to their intentions (toward conduct)? Such controversy shows that the proposed reduction does not hold as a matter of meaning. It can be a substantive element in a conception of justice. But, to state it as such, actors must be shall be a separate category of judicanda.
The same holds for the possible reduction of the third category to the second. One may think, for instance, that social rules are unjust if and only if it would be unjust to (help) impose them. But here, too, there are various other ways of formulating the reduction; and it is a substantive moral question which of these formulations, if any, is correct.
In view of the diversity of judicanda, one may dispair of Plato's grand ambition in the Republic and conclude that it is impossible to give a general characterization of the concept—let alone a general conception—of justice that plausibly covers all four categories of judicanda. Such doubt can only be dispelled by setting forth a plausible general structure for the concept (building on the general points already made) and some main hypotheses toward a unified conception of justice. This attempt is made in what follows.
A Unified Concept of Justice
In contrast to many one-place evaluative predicates (beautiful, good, conscientious, modest), "unjust" has an essential second place. It is indeed often used as a one-place predicate (as in "this man is unjust"). But reference to a second place is always implicit. In this respect, "unjust" is like the predicate "mother." To say that she is a mother is to say that she is the mother of someone. One cannot understand what it is to be a mother without understanding what it is to be the mother of someone. Likewise here: To call a man unjust is to say that he is unjust to others. One cannot understand what it is for a judicandum to be unjust without understanding what it is for it to be unjust to someone. Injustice conceptually requires recipients : those who receive unjust treatment from the judicandum.
To be sure, one may call a proposed law unjust even if it fails to pass and thus never treats anyone unjustly, and one may call a woman unjust, even if she treats no one unjustly, on account of her intentions or dispositions. But even in such cases an implicit reference to recipients is essential: one implies that the proposed law, if adopted, would treat some persons unjustly, and that the woman intends, or is disposed, to treat others unjustly.
Recipients need not necessarily be victims. It is possible that the injustice of an action or rule entails that some are treated better than they should be. In such cases, there may be other victims—people who, because of the action or rule in question, are unjustly treated worse than those who were treated too well. But when there are no such victims, can one then still speak of (victimless) injustice? To use an example from Kant's Metaphysics of Morals (p. 333): Would it be unjust if a society about to dissolve itself were to set free a convicted murderer from its jail? (Kant suggests that this would be unjust—but not because his execution is owed to the murderer himself, but because it is owed to his victim(s) and to all of humankind.) The concept of justice does not settle this question; different conceptions of justice will answer it differently.
The concept of justice involves an essential third place in that the notion of recipients, of those who receive just or unjust treatment, presupposes benefits and burdens that these recipients either should but do not have or do but should not have. What sorts of benefits and burdens these are, and whether they are understood in absolute terms or relative to what other recipients have, varies with judicandum and context.
Various aspects of justice have traditionally been distinguished. These distinctions can be displayed in three dimensions.
dimension one: first-order and procedural (in)justice
In a first dimension, one can distinguish assessments of a particular allocation of benefits and burdens (first-order justice) from assessments of the way in which such an allocation comes about (higher-order or procedural justice, sometimes also called fairness ). Thus a judicial divorce may be unjust on account of the ordered division of marital property, and it may also, and independently, be unjust because avoidably only one of the two parties was allowed to speak. The latter injustice—a violation of the classical precept audiatur et altera pars —involves (relative) second-order benefits and burdens: the advantaging of one party and the disadvantaging of the other in the decision-making process. In other cases, violations of procedural justice may involve absolute higher-order benefits or burdens, as when exculpatory or incriminating evidence or witnesses are arbitrarily excluded from a criminal trial.
Procedural justice plays an important role even outside jurisprudence. Rules and decisions about the awarding of honors, contracts, jobs, promotions, and university admissions may violate procedural justice. There are blatant cases, as when a coveted job goes to an insider's spouse without advertisement or search. In other cases it is controversial what the requirements of procedural justice are, exactly. The most important such controversies in recent decades have centered around the question of whether certain selection processes may or should favor people of a particular color, gender, or ethnicity so as to compensate for, or to help overcome, group disadvantages due to past or present discrimination.
In the realm of politics, especially, there may be third-order and fourth-order judgments of justice. This is the case when the rules or the participants for some procedure are selected through a metaprocedure. Thus, the electoral law of a country may be unjust independently of whether this has any effect on the composition of its legislature and, thereby, on its legislative output.
Even in private life one may find violations of procedural justice. It may be unjust if on the basis of a nasty rumor one discriminates against a person, or perhaps even repeats the rumor to third parties, without giving this person an opportunity to respond to the allegation. Insofar as the injustice of such conduct is independent of the truth of the rumor in question, it involves once more a higher-order burden.
dimension two: formal and material (in)justice
Perpendicular to this first dimension is the common distinction between formal and material (in)justice. Formal justice requires that relevantly similar cases be treated similarly. There is much room for controversy about whether particular cases are relevantly similar and about what is to count as similar treatment. The requirement of formal justice is therefore primarily a demand for justification. The complaint that relevantly similar cases are being treated in a dissimilar way demands a justification, showing that the treatment was not dissimilar or else was appropriately responsive to dissimilarity among cases. This requirement of justification holds across the first dimension: The procedures through which benefits and burdens are allocated to recipients as well as these allocations themselves must satisfy formal justice. It must be justifiable that one accused was acquitted and another convicted (first-order justice), say, and also that one accused but not another was provided an attorney at public expense (procedural justice).
Judicanda can be gravely unjust even when they clearly do treat similar cases alike. Thus, parents who beat all their children without cause violate material justice, as do judicial systems that deny all accused rights to speak, to appeal, and to consult legal counsel.
One might think that justice reduces to material justice: When dissimilar treatment of cases cannot be justified, this merely shows that the treatment of some of these cases is materially unjust, independently of how the others are treated. But this view is surely not implicit in the concept of justice. And it is substantively implausible. In many cases, justice is comparative. To illustrate, there are indefinitely many schedules according to which individuals and businesses might be taxed. While the demands of material justice disqualify a wide range of these options, they do not mandate one uniquely just tax code. Still, it would clearly be unjust to impose diverse materially just tax codes—some more advantageous than others—upon the various households or businesses of a single jurisdiction. Unjust is here the unequal treatment of taxpayers, which is a violation of formal justice.
dimension three: various domains of material (in)justice
Material justice imposes various requirements whose content is controversial. This multiplicity can be ordered in a third dimension by distinguishing various domains. Thus distributive justice deals with access to scarce resources—from the division of a pie to the structure of an economic order that regulates access to raw materials and the distribution of the jointly created social product. Commutative justice governs exchanges, which may be faulted for first-order flaws, as when the items exchanged are not equivalent, or for higher-order (procedural) flaws, such as excessive inequalities in information or bargaining power. Corrective or restitutive justice is concerned with how to make up for violations of social and moral rules and how to deal with the costs such violations cause. Retributive justice, finally, deals with the ascertainment and punishment of such violations.
In each of these four domains there are procedures, which may be formally or materially unjust, as well as particular allocations of benefits and burdens, which also may be formally or materially unjust. The traditional three-dimensional schema, as here reconstructed, thus contains sixteen boxes for sorting particular justice assessments. In the first dimension, the assessment is either first-order or higher-order. In the second dimension, it concerns either formal or material justice. And in the third dimension, it falls into the domain of distributive, commutative, corrective, or retributive justice.
This conceptual structure leaves open the possibility that some of these boxes may contain no substantive constraints. For example, there may be no first-order material demands of commutative justice if any exchange, no matter how lopsided, is morally acceptable so long as it has been performed freely by the exchanging parties without unfair inequalities in bargaining power or information. But this is not a conceptual point, but rather a substantive claim, affirmed by some (especially modern) and denied by other (especially medieval) conceptions of justice.
This complexity can be increased to sixty-four because—perpendicular to the three dimensions in which the character of diverse justice assessments can be differentiated—there is still the distinction between four categories of judicanda (introduced earlier) to which any such justice assessments can be applied: namely, individual and collective actors, their actions and omissions, social rules and institutions, and states of affairs and events.
In some accounts, international justice is given as a separate domain that, traditionally, is heavily focused on the use of force and, in particular, on just and unjust causes for going to war (ius ad bellum ), and on just and unjust ways of fighting a war (ius in bello ). (In his Metaphysics of Morals [pp. 343, 347–349], Kant adds a third theme: the just way of concluding a war so as to lay the foundation for a stable peace [ius post bellum ]) It seems more appropriate, however, to think of states as one class of collective actors among others. It may indeed be claimed that states are a special class of actors and that their conduct and relations are subject to distinctive justice requirements. But this is a substantive moral claim that should not be prejudged in the conceptual explication.
A state is understood not merely as a collective actor, but also as a comprehensive system of social rules and institutions enforced in a particular territory. A state can therefore be criticized as unjust not merely on account of its conduct toward or institutional relations with outsiders, but also on account of its internal institutional order—for instance, on account of how it distributes rights and duties, regulates and taxes economic cooperation, and enforces its laws against its members. So understood, states exemplify one kind of institutional scheme among others, whose special status once again should not be prejudged in the conceptual explication.
Toward a Unified Conception of Justice
The preceding sections were meant to sketch the structure of the contemporary concept of justice and thereby to characterize the linguistic consensus that underlies current debates about questions of justice. Even these general thoughts may not be wholly uncontroversial. But they are much less controversial than the thoughts to follow, which are meant to describe plausible elements of a conception of justice. Should these elements be found convincing, they might gradually become elements of a clearer and more unified concept of justice. But they do not now fully accord with the various understandings of this concept that are dominant in contemporary public and academic discussions.
It is possible to begin once more from the question, briefly raised in (1): What is specific about justice, how justice judgments are distinctive within the larger realm of moral judgments; what is being said with the complaint that some judicandum is unjust, over and above the claim that this judicandum is immoral (morally flawed)? What follows are four hypotheses toward answering this question.
first hypothesis: injustice involves abuse of morality itself
Morally flawed judicanda are unjust only if they involve an abuse of morality itself—that is, only if they appear with a moral pretension they do not live up to. Unjust is someone who is prepared to violate moral principles she herself likes to appeal to. Unjust is someone who allows his official conduct to be influenced by bribes even while he pretends to be an impartial judge, umpire, or mediator. Unjust is a beating falsely presented as deserved punishment. And unjust is legislation designed for the benefit of a small minority and yet claimed to impose moral obligations on the oppressed population. In all these cases, the injustice comes about through the false moral claim: Without the pretense of deserved punishment, the beating is wrong but not unjust. Without the claim of moral authority (that compliance is morally required), coercive rules can be wrong, but not unjust.
According to this first hypothesis, then, justice is a part of morality that defends the authority and dignity of morality itself. This would explain the central place justice is thought to occupy within morality. Unjust are only those judicanda that do not merely—openly or covertly—violate morality, but also appear under color of morality.
second hypothesis: justice may in principle be enforced
A second essential mark of injustice may be that it involves a violation of a right and, more precisely, of a moral right. (Injustice need not violate positive law. To the contrary, because positive law may be unjust or otherwise immoral, conduct it permits or even requires may still be unjust.) Violations of rights are those moral infractions that may in principle be averted through the use or threat of coercive force. The main implication of the second hypothesis therefore is that any injustice may in principle be forcibly averted. Justice may be enforced.
The expression "in principle" flags two qualifications. First, it is not meant that anyone is permitted forcibly to avert any rights violations. In a well-ordered society, for instance, only the police and the courts are permitted to use force in response to rights violations—ordinary citizens may use or threaten force only in urgent emergencies. Second, there is no permission to use force regardless of the morally significant costs of doing so. Defensive force may be grossly disproportionate and therefore impermissible. And efforts forcibly to avert a rights violation may also be impermissible when they carry the risk of triggering much graver violations of the rights of third parties (a point well illustrated in Heinrich von Kleist's story "Michael Kohlhaas"). That any rights violation may in principle be forcibly averted thus means only that those responsible for it and those profiting from it have no moral right against having this violation blocked by force. Here justice contrasts with other moral qualities. No moral rights are violated by judicanda lacking in generosity, civility, charity, humanity, decency, kindness, courtesy, mercy, or beneficence. Enforcing these virtues is wrong in principle and violates moral rights of those against whom they are enforced.
third hypothesis: injustice harms in violation of negative duties
Related to the preceding, another essential mark of injustice may be that it always involves a violation of negative duties on the part of those who are responsible for the moral quality of the judicandum in question. What is at issue here, roughly speaking, is the traditional distinction between moral infractions that harm recipients and those that merely fail to help them. However this distinction may be made precise, the third hypothesis is simply that a claim of injustice always involves a claim of undue harm.
This hypothesis is related to the second hypothesis insofar as the two distinctions may wholly or largely coincide. That they coincide precisely would mean that people in every case have a right not to be harmed but in no case a right to be helped. Therefore, only harmings may be forcibly averted, refusals of help must not be.
It is doubtful that the two distinctions coincide precisely. Many civil-law countries have "Good Samaritan" laws proscribing failure to render assistance. These statutes presuppose, as seems plausible, that there are cases in which morally mandatory assistance may be compelled through threat of criminal sanctions. Conversely, there may also be harmings that are so trivial that in principle they must not be forcibly averted.
Still, the two distinctions largely coincide, and some moral predicates fall entirely on one side or the other. Judicanda lacking in morally required or recommended generosity, civility, charity, humanity, decency, kindness, courtesy, mercy, or beneficence fail to help people without harming them. Such infractions may not be forcibly averted. Any injustice in a judicandum, however, does harm people and thus may in principle be forcibly averted.
The last two hypotheses differ in their informative value for the investigation of justice. The second hypothesis is illuminating: something important is learned about justice, if one finds that in principle every injustice may be forcibly averted. The third hypothesis would be similarly informative if it started out with a clear justice-independent notion of harm. The claim would then be that a judicandum is unjust only if it harms persons (in this independent sense). But the connection postulated by the third hypothesis can also be taken in the opposite way: Any unjust treatment is to count as a harming. So understood, this claim would be using a harm-independent notion of injustice to illuminate the notion of harm—rather than the other way around. Still, although the latter definitional sequencing seems more adequate, it is moderated by the need to preserve the core meaning of harm. Coming back to Kant's example, failure to give a criminal his deserved punishment cannot plausibly be presented as an instance of harming him. If one wants to call such an act of grace unjust (while maintaining the third hypothesis), then one must identify another harmed party—other criminals arbitrarily excluded from the amnesty, perhaps, or future victims of crimes that would not have occurred but for this failure to punish. Given this constraint imposed by the core meaning of harm, the third hypothesis is not then entirely uninformative.
fourth hypothesis: justice is not purely recipient-oriented
The last hypothesis is negative in character. It merely rejects a hypothesis that has come to dominate Anglophone academic discussions of justice. The refutation of this approach eliminates only one of many possibilities and may thus seem to make little progress. But because the rejected approach is so elegant and influential, it is interesting nonetheless to explore how it fails.
The approach to be criticized has developed out of utilitarianism, which holds that the moral assessment of actors, conduct, and social rules should be based solely on each such judicandum's relative impact on the world, and on human happiness in particular.
If such a view is accepted, the ordinary distinctions among moral predicates lose much of their significance. Whatever moral predicate may be used to criticize a rule, action, or person—cowardly, unjust, evil, indecent, and so on—the complaint always boils down to the judicandum's failure to be optimally happiness-promoting. Utilitarians have little use for the received panoply of moral predicates because it ultimately does not matter how a suboptimal judicandum is squandering potential human happiness.
Those who reduce the traditional multiplicity of moral defects in this way may simply want to do away with the surplus predicates. Alternatively, they may prefer to redeploy these predicates—using them not (as traditionally) for different defects of the same judicanda, but instead for defects in different kinds of judicanda. In this way, justice has come to name the specific moral virtue of social rules.
In his famous A Theory of Justice (1999 ), John Rawls adopts this redeployment. His theory is focused exclusively on social institutions and, even more narrowly, on a society's basic institutional design. And, presenting justice as the first virtue of social institutions, he recognizes no further moral predicates by means of which such institutions might be subjected to potentially competing moral judgments.
Rawls further follows the utilitarians by adopting a broadly consequentialist mode of moral assessment, and one that focuses specifically on the well-being of individuals. Thus he shares with utilitarianism the purely recipient-oriented mode of moral assessment. The unique characteristic of this approach can be expressed as the assumption that the only information needed in the moral assessment of any judicandum is information about its relative impact on persons, that is, information about how persons fare with the judicandum as it is versus how they would fare if the judicandum were different.
Unlike the utilitarians, Rawls employs the purely recipient-oriented approach on two distinct levels and moreover rejects, on both levels, utilitarian conceptions of well-being as happiness or desire fulfillment. Central to his theory is a criterion ("the two principles") of justice that assesses alternative institutional designs on the basis of the distribution of social primary goods each would produce. The just design is the one that would produce the best feasible distribution among citizens of basic rights and liberties, income and wealth, powers and responsibilities of office, and other social bases of self-respect. This proposed criterion of justice is justified, again in a purely recipient-oriented manner, on the ground that its public adoption would lead to a better fulfillment of citizens' three higher-order interests than the public adoption of any alternative criterion of justice. The argument on this second level is presented in terms of a contractualist thought experiment ("original position") in which representatives of citizens, informed only that their clients have the three higher-order interests but given no further specific information about them, come to agree on a particular public criterion of justice.
Rawls's theory, with its particular assessment standards on the two levels, has received much lively critique. Under the Equality of What? label, academics debate whether human well-being should be conceived in terms of happiness, welfare, desire fulfillment, Rawlsian social primary goods, Dworkinian resources, or capabilities à la Sen or Nussbaum. And academics also debate how such well-being information about individuals should be aggregated: Should well-being simply be averaged or should special weight be given to equality, sufficiency, or the worse off? Yet, beneath all this disagreement, the purely recipient-oriented approach is largely taken for granted in the Anglophone countries.
The fourth hypothesis is that any such purely recipient-oriented conceptions of justice are untenable.
defense of the fourth hypothesis
When it comes to actors and their conduct, the fourth hypothesis is—at least outside academic philosophy—hardly controversial. Here any conception of the form "to be just is to promote a good distribution among one's recipients" is bound to be unacceptable because it disregards morally relevant information about how a judicandum has its effects. It is widely taken to make a great moral difference whether some conduct brings about the death of an innocent person or merely fails to prevent such a death. The world at large may be worse, perhaps even less just, if two good persons die prematurely than if a single less deserving person dies in their stead. And yet, it is not morally required, nor even permitted, to save the former by killing the latter.
An analogous point applies to social institutions. This is clearest when one reflects on the criminal law. Here Rawls's first priority rule (A Theory of Justice 1999 , p. 266) holds that basic liberties may be restricted whenever such restriction, by making the remaining basic liberties more secure, is a gain on balance for the basic liberties of the representative citizen. This claim fits well with his purely recipient-oriented approach as enshrined in the contractualist thought experiment of the original position. But it is inconsistent with the considered judgments his theory was meant to accommodate and to unify. One of the examples Rawls gives (A Theory of Justice 1999 , pp. 212–213) involves a strict-liability criminal statute that permits conviction without a showing of mens rea. Although it violates citizens' basic liberties, this law is nonetheless said to be permissible as "the lesser of two evils" if it is necessary to block even greater dangers to citizens' basic liberties (a danger of civil war, in his example).
Similar arguments could plausibly be made in regard to other aspects of the criminal law. Constraints on searches, seizures, and interrogations should be relaxed if this would entail, through more effective crime fighting, a net gain for citizen's basic liberties. Standards of evidence ("beyond a reasonable doubt") should be lowered, and less than unanimity be required for a jury conviction, if this would, through increased deterrence and through disabling more repeat offenders, produce a net gain for citizen's basic liberties. And draconian punishments (e.g., execution) should be imposed for high-elasticity crimes (e.g., drunk driving) if citizens' overall risk of a premature violent death can thereby be reduced.
These theory-produced judgments collide with people's intuitive sense of justice, which is responsive not merely to the magnitudes, probabilities, and distribution of morally significant goods and ills, but also to the attitude social rules manifest and to the causal pathways on which they affect their recipients. Even if these recipients themselves have no reason to care whether burdens falling on them (such as hunger or risks of premature death) are imposed by social rules or merely not averted by them, this difference is nonetheless morally significant. The purely recipient-oriented approach cannot then fulfill Rawls's stated ambition of accommodating and unifying his compatriots' considered judgments.
The reason is that judgments of justice take account not only of the passive perspective of recipients, of citizens as governed by social rules, but also of the active perspective of authors, of citizens as co-responsible for these rules. For citizens as recipients, all threats to their basic liberties are indeed on a par—whether they arise from criminal or crime-fighting activities. But for citizens as co-legislators it makes a considerable difference whether people are roughed up by criminals or by police interrogators, are killed prematurely by a drunk driver or through execution for drunk driving. As co-legislators, people take greater moral responsibility for harms they mandate or authorize through their institutional order than for equal harms they could prevent through it. That some institutional arrangements would be better for citizens as recipients is not sufficient to show that they are morally permitted—let alone required. Purely recipient-oriented conceptions of justice are bound to fail because they systematically ignore the active perspective of those who bear responsibility for a particular judicandum.
Plausible justice assessments of social rules must be sensitive to both citizen perspectives. What matters in the moral assessment of social rules is not merely how these rules affect, but how they treat their recipients. The importance of this point extends well beyond the criminal law. A rule under which those suffering from some genetic defect are not entitled to life-saving treatment may be exactly as bad for them as a rule mandating execution for those with certain physical features is for the executed. Though comparable in their relative impact on recipients, these two rules are nonetheless worlds apart in how they treat such recipients.
Once such differences in attitude and causal pathways have been restored their proper moral significance, people may well find that justice is not the only moral virtue of social institutions. If a society's institutional order provides little funding for public health services, more citizens will avoidably die or suffer. And yet, such an order is surely less unjust than one under which equal suffering and deaths are explicitly imposed by the rules, perhaps on members of a certain ethnic or religious minority. In fact, in a poor society with other urgent needs, low funding for public health services may not be unjust at all. And even in an affluent society, such low funding may not be unjust, so long as society helps treat the medical conditions it causes (e.g., through pollution). Still, if the institutional order of an affluent society ignores the plight of citizens with congentital medical conditions, say, it may well be morally flawed in other ways: be ungenerous, mean, or inhumane.
This result supports the fourth hypothesis by showing it to be a step toward a conception of justice that covers all judicanda in a unified way: In regard to actors and their conduct people are already familiar with the possibility of actors being beyond reproach in terms of justice and yet morally flawed in other ways.
See also Affirmative Action; Civil Disobedience; Distant Peoples and Future Generations; Feminist Social and Political Philosophy; Just War Theory; Natural Law; Punishment; Racism; Rawls, John; Reflective Equilibrium; Rights; Social Contract; Terrorism; Utilitarianism.
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Thomas Pogge (2005)
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Justice has widely been said to be the moral value which singularly characterizes Judaism both conceptually and historically. Historically, the Jewish search for justice begins with biblical statements like "Justice (Heb. ẓedek), justice shall ye pursue" (Deut. 16:20). On the conceptual side, justice holds a central place in the Jewish world view, and many other basic Jewish concepts revolve around the notion of justice.
God's primary attribute of action (see Attributes of *God) is justice (Heb. mishpat; Gen. 18:25; Ps. 9:5). His commandments to men, and especially to Israel, are essentially for the purpose of the establishment of justice in the world (see Ps. 119:137–44). Men fulfill this purpose by acting in accordance with God's laws and in other ways imitating the divine quality of justice (Deut. 13:5; Sot. 14a; Maimonides, Guide, 1:54, 3:54). This process of establishing justice in the world is to be completed in the messianic reign of universal justice (see Isa. 11:5ff.; Deut. R. 5:7). All history, therefore, like the Torah itself, which is its paradigm, begins and ends with justice (Ex. R. 30:19).
The two main biblical terms for justice are ẓedek and ẓedakah. They refer to both divine and human justice, as well as to "the works of justice" (Ex. 9:27; Prov. 10:25; Ps. 18:21–25). This justice is essentially synonymous with holiness (Isa. 5:16). In the Bible, furthermore, "justice" is so consistently paired with "mercy" or "grace" (ḥesed; Isa. 45:19; Ps. 103:17ff.), that by talmudic and later times the term ẓedakah has come to mean almost exclusively "charity" or "works of love" (bb 10b), and the notion of "justice" is rendered by the terms "truth" (emet), "trust" (emunah), and "integrity" (yosher). Throughout the literature, finally, other values, particularly peace and redemption, are consistently associated with justice, as its components or products (Hos. 12:7; Ps. 15:1; Ta'an. 6:2). Ultimately, therefore, virtually the entire spectrum of ethical values is comprised in the notion of justice.
Jewish justice is different from the classic philosophic (Greek-Western) view of this concept. In the latter, justice is generally considered under the headings of "distributive" and "retributive." These are, of course, also comprised in ẓedakah, but while "distributive" and "retributive" justice are essentially procedural principles (i.e., how to do things), Jewish justice is essentially substantive (i.e., what human life should be like). Substantive justice depends on an ultimate (i.e., messianic) value commitment. This is also made clear by modern thinkers, such as Hermann *Cohen, who regards the just society as the ideal society of universal human dignity and freedom (Ethik des reinen Willens (1904), ch. 15; Religion der Vernunft aus den Quellen des Judentums (1929), ch. 19), and Ch. Perelman, who in his analysis of justice writes: "…in the end one will always come up against a certain irreducible vision of the world expressing nonrational [though justifiable] values and aspirations" (Perelman, Justice (1967), 54). Although Perelman does not claim to be discussing a particularly Jewish concept of justice, he is aware of the Jewishness of this ethos (cf. W. Kaufmann, in: Review of Metaphysics, 23 (1969), 211, 224ff., 236). The substantive view of justice is concerned with the full enhancement of human and, above all, social life. Thus it suffuses all human relations and social institutions – the state (the commonplace dichotomy between individual and collective responsibility, often illustrated by the contrast between Ex. 20:5 and Ezek. 18, is transcended in the recognition of the dialectical interrelationship between the two, illustrated in Deut. 24:16 alongside Lev. 19:16 (see also Sanh. 73a), and in the contemporary involvement of the individual citizen in the collective actions of his nation), lawcourts (e.g., ii Chron. 19:6; Maim. Yad, Sanhedrin, 23:8–10), economics (Lev. 19:36), and private affairs – and, indeed, the single positive ordinance encumbent also on all non-Jews is the establishment of judiciaries (Sanh. 56a).
Justice is not contrasted with love, but rather correlated with it. In rabbinic literature, Jewish philosophy, and Kabbalah, God is described as acting out of the two "attributes of lawfulness and compassion" (pr 5:11, 40:2; Maimonides, Guide 3:53).
The critical problem pertaining to justice is that of theodicy: if God is just and rules the world, how can the successes of evil be explained? The problem of theodicy, a recurrent theme in literature, is raised by the Psalmist and is the theme of Job. It is the subject of E. *Wiesel's story, written in the wake of the Holocaust, in which three rabbis subpoena God to a trial and find Him guilty. In the history of Jewish thought many solutions to the problem have been suggested, among them the essentially neoplatonic notion that evil is privation, i.e., that it is not something positive in itself but merely the absence of good (Guide 3:18–25); the view that evil and suffering constitute trials of the just, or, in rabbinic literature, "afflictions of love," i.e., that God tests the righteous by causing them to suffer in this world; and the doctrine of reward and punishment in *Olam ha-Ba (Sanh. 90b–92a; Albo, Sefer ha-Ikkarim, 1:15).
The rabbis regard Moses as the ideal of strict unbending justice, in contrast to Aaron, who is the prototype of the ideal of peace, and they interpret the incident of the Golden Calf as exemplifying the problem arising from the clash of these two ideals (cf. Sanh. 6a–7b and parallels). In the same context they suggest that compromise in legal cases may constitute a denial of justice (ibid.).
A reply to, though not a resolution of, the problem of theodicy in our time may be attempted in two directions. (a) to protest against injustice in the tradition of Job, *Ḥoni ha-Me'aggel, and the ḥasidic leader Levi Isaac of Berdichev, which is possible only before a responsible authority, i.e., a just God; (b) to regard justice as a normative, rather than a descriptive, concept, as does Cohen, who writes that "justice maintains the tension between reality and the eternal ideal" (Religion der Vernunft, p. 569). According to this view, justice can be striven for and looked for only in the future – whether the future of mankind as a whole (the days of the Messiah) or of the individual – i.e., in God, whose justice in judgment is affirmed in the blessing recited in the hour of death, "blessed be the just judge."
Man is obliged to imitate God by acting on the principle of compassionate equity (Micah 6:8; Mak. 24b; bm 30b, 83a), and – at the final consummation of history – justice and mercy become identical.
L.E. Goodman, On Justice: An Essay in Jewish Philosophy (1991).
[Steven S. Schwarzschild]
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At some time or another, virtually all of us become involved in disputes about justice. Sometimes our involvement in such disputes is rooted in the fact that we believe ourselves to be victims of some form of injustice; 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. Sometimes the injustice at issue seems to require for its elimination a drastic reform, or even a revolutionary change in the political system. Sometimes it seems to require only some electoral pressure or administrative decision, as may be required in ending a war. Whatever the origin and whatever the practical effect, such disputes about justice are difficult to avoid, especially when one is dealing with issues, like the distribution of income or healthcare resources, that have widespread social effects.
Reasonable resolutions of such disputes require a critical evaluation of the alternative conceptions of justice available to us. In philosophical debate at the end of the twentieth century, five major conceptions of justice are defended:
- a libertarian conception, which takes liberty to be the ultimate political ideal;
- a socialist conception, which takes equality to be the ultimate political ideal;
- a welfare liberal conception, which takes contractual fairness or maximal utility to be the ultimate political ideal;
- a communitarian conception, which takes the common good to be the ultimate political ideal; and
- a feminist conception, which takes a gender-free society to be the ultimate political ideal.
All these conceptions of justice have certain features in common. Each regards its requirements as belonging to the domain of obligation rather than to the domain of charity; they simply disagree about where to draw the line between these two domains. Each is also concerned with giving people what they deserve or should rightfully possess; they simply disagree about what it is that people deserve or rightfully possess. These common features constitute a generally accepted core definition of justice. What we need to do, however, is examine the aspects of each of these conceptions of justice over which there is serious disagreement in order to determine which conception, if any, is most defensible.
Libertarians frequently cite the work of Friedrich A. Hayek, particularly The 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, contemporary libertarians define "liberty" as "the state of being unconstrained by other persons from doing what one wants." Libertarians go on to characterize their moral and political ideal as requiring that each person 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 libertarians' 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 coercion—the only wrongful acts for libertarians.
Libertarians do not deny that it is a good thing for people to have sufficient goods and resources to meet their basic nutritional needs and basic healthcare needs, but they do deny that government has a duty to provide for such needs. Some good things, such as the provision of welfare and healthcare to the needy, are requirements of charity rather than justice, libertarians claim. Accordingly, failure to make such provisions is neither blameworthy nor punishable.
A basic difficulty with the libertarian's conception of justice is the 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? Surely it would seem that a right to property, as the libertarian understands it, might well justify a rich person's depriving a poor person of the liberty to acquire the goods and resources necessary for meeting 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, it would seem that 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 would 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, a right to welfare—and possibly a right to equal opportunity as well—would be grounded in the libertarian's own ideal of liberty.
In contrast with libertarians, socialists take equality to be the ultimate political ideal. In the Communist Manifesto (1848), Karl Marx and Friedrich Engels maintained 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 Programme (1891), Marx provided a much more positive account of what is required to build a society based on the political ideal of equality. In such a society, Marx claimed, the distribution of social goods must conform, at least initially, to the principle "from each according to his ability to each according to his contribution." But when the highest stage of communist society has been reached, Marx added, distribution will conform to the principle "from each according to his ability to each according to his need."
At first hearing, this conception might sound ridiculous to someone brought up in a capitalist society. The obvious objection is, how can you get people 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 that must be done in a society as enjoyable, in itself, 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 currently existing intrinsically rewarding jobs at lower salaries—top executives, for example, to work for $300,000 rather than $900,000 a year. Yet ultimately, socialists hope to make all jobs as rewarding as possible, so that after people are no longer working primarily for external rewards while 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, they will be more motivated to work, because their 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.
However, 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 such jobs up in some equitable manner. Some people might, for example, collect garbage one day per week and then work at a more rewarding job for the rest of the week. Others would change bedpans or do some other menial work for one day per week and then work at a more rewarding job the other days of the week. Socialists believe that by making jobs intrinsically as rewarding as possible, in part through democratic control of the workplace and an equitable assignment of unrewarding tasks, people will contribute according to their ability even when distribution proceeds according to need.
Another difficulty raised concerning the socialist conception of justice is in 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 where—because ownership is so widely dispersed throughout the society and because of the degree of democratic control of the workplace—many 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's ideal of liberty and the socialist's 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 classic example of the contractual approach to welfare liberal justice is found in the political works of Immanuel Kant, who claimed 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 (which is necessarily presupposed for each person 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 claimed, 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 has been further developed by John Rawls in A Theory of Justice (1971). Rawls, like Kant, argues that principles of justice are those 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) Special conception of justice, involving (a) A principle of equal political liberty; (b) A principle of equal opportunity; and (c) A principle requiring that the distribution of economic goods work to the greatest advantage of the least advantaged. (2) General conception of justice: a principle requiring that the distribution of all social goods work to the greatest advantage of the least advantaged.
The general conception of justice differs from the special conception of justice by allowing trade-offs between political liberty and other social goods. According to Rawls, persons in the original position would want the special conception of justice to be applied in place of the general conception of justice whenever social conditions allow all representative persons to benefit from the exercise of their political liberties.
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 maximize the minimum, thereby securing for themselves the highest minimum payoff.
Rawls's defense of a welfare liberal conception of justice has been challenged in a variety of ways. Some critics have endorsed Rawls's 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 maximum strategy in the original position. Other critics, however, have found fault with the contractual approach itself. Libertarians, for example, have challenged the moral adequacy of the very ideal of contractual fairness because they claim that it conflicts with their ideal of liberty.
This second challenge to the ideal of contractual fairness is potentially the more damaging because, if valid, it would force its supporters to embrace some other political ideal. This challenge, however, would fail if it were shown that the libertarian's own ideal of liberty, when correctly interpreted, leads 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 that have been 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. It has been claimed that 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 certainly that presented by John Stuart Mill in Utilitarianism (1861).
In Chapter 5 of this work, Mill surveyed various types of actions and situations that are ordinarily described as just or unjust and concluded that justice simply denotes a certain class of fundamental rules, the adherence to which is essential for maximizing social utility. Thus Mill rejected 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 overall social utility that do injustice to particular individuals. Think of the Roman practice of throwing Christians to the lions for the enjoyment of all those in the Colosseum. Did this unjust practice not maximize overall social utility?
John Rawls (1971) makes the same point somewhat differently. He criticizes utilitarianism for regarding society as a whole as if it were just one person, and thereby treating the desires and satisfactions of separate persons as if they were the desires and satisfactions of just one person. In this way, Rawls claims, utilitarianism fails to preserve the distinction between persons. But is Rawls right? It may well be that a proper assessment of the relative merits of the contractual and utilitarian approaches to welfare liberal justice will turn on this very issue.
Another prominent political ideal defended by contemporary philosophers is the communitarian ideal of the common good. Many contemporary defenders of a communitarian conception of justice regard their conception as rooted in Aristotelian moral theory. In the Nicomachean Ethics (332 b.c.e.), Aristotle distinguished between different varieties of justice. He first distinguished 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 the one who takes only a proper share. Aristotle focused his discussion on justice in the latter sense, 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 claimed that justice has both its natural and conventional aspects: this twofold character of justice seems to be behind his discussion of equity, in which equity, a natural standard, is described as a corrective to legal justice, a conventional standard.
Few of the distinctions Aristotle made 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 also subject to various interpretations. An analysis of the concept of desert would show that there is no conceptual difficulty with claiming, for example, that everyone deserves to have his or her needs satisfied or that everyone deserves an equal share of the goods distributed by society. Consequently, Aristotle's account is helpful primarily for clarifying the distinctions belonging to the concept of justice that can be made without committing oneself to any particular conception of justice.
Yet rather than draw out the particular requirements of their own conception of justice, contemporary communitarians have frequently chosen to defend their conception by attacking other conceptions of justice; by and large, they have focused their attacks on the welfare liberal conception of justice. Alasdair MacIntyre, for example, argues in "The Privatization of the Good" (1990a) 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 must fail because the rules defining right action cannot be adequately grounded apart from a conception of the good. For this reason, MacIntyre claims, only a 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 cannot we view most forms of liberalism as attempting to ground moral rules on part of a conception of the good—specifically, that part of a conception of the good that is more easily recognized, and needs to be publicly recognized, as good? For Rawls, this partial conception of the good is a conception of contractual fairness, according to which no one deserves his or her native abilities or initial starting place in society. If this way of interpreting liberalism is correct, 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 compared, they will be found to be quite similar.
Defenders of a feminist conception of justice present a distinctive challenging critique to defenders of other conceptions of justice. In The Subjection of Women (1869), John Stuart Mill, one of the earliest male defenders of women's liberation, argued that the subjection of women was never justified but was imposed on women because they were physically weaker than men; later this subjection was confirmed by law. Mill argued that society must remove the legal restrictions that deny women the same opportunities enjoyed by men. However, Mill did not consider whether, because of past discrimination against women, it may be necessary to do more than simply removing legal restrictions: he did not consider whether positive assistance may also be required.
Usually it is not enough simply to remove unequal restrictions to make a competition fair among those who have been participating. Positive assistance to those who have been disadvantaged in the past may also be required, as would be the case in a race where some were unfairly impeded by having to carry ten-pound weights for part of the race. To render the outcome of such a race fair, we might want to transfer the ten-pound weights to the other runners in the race for an equal period of time. Similarly, positive assistance, such as affirmative-action programs, may be necessary if women who have been disadvantaged in the past are going to be able to compete fairly with men.
In Justice, Gender and the Family (1989), Susan Okin argues for the feminist ideal of a gender-free society, that is, one in which basic rights and duties are not assigned on the basis of a person's sex. Being male or female is not the grounds for determining what basic rights and duties a person has in a gender-free society. 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 genderstructured society like that of the United States, male philosophers cannot achieve the sympathetic imagination required to see things from the standpoint of women. In a gender-structured society, Okin claims, male philosophers cannot do the original position-type thinking required by the welfare liberal ideal because they lack the ability to put themselves in the position of women. According to Okin, original position-type thinking can really be achieved only in a gender-free society.
Yet, at the same time that Okin despairs of doing original position-type thinking in a gender-structured society, she purportedly 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" (Okin, p. 104). She also claims that "the abolition of gender seems essential for the fulfillment of Rawls's criterion of political justice" (Okin, p. 104). So Okin's own work would seem to indicate that we can do such thinking, and that her reasons for thinking we cannot are not persuasive. To do original position-type thinking, it is not necessary that everyone be able to put themselves imaginatively in the position of everyone else. All that is necessary is that some people be able 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 time.
Of course, even among men and women in a genderstructured society who are in a broad sense capable of a sense of justice, some may not be able to do such original positiontype thinking with respect to the proper relationships between men and women; these men and women may be able to do so only after the laws and social practices in our society have significantly shifted toward a more gender-free society. But this inability of some to do original position-type thinking does not render it impossible for others, who have effectively used the opportunities for moral development available to them, to achieve the sympathetic imagination necessary for original position-type thinking with respect to the proper relationships between men and women.
What conclusion should we draw from this discussion of libertarian, socialist, welfare liberal, communitarian, and feminist conceptions of justice? Should we draw the conclusion defended by Alasdair MacIntyre in After Virtue (1981) that such conceptions of justice are incommensurable and, hence, there is no rational way of deciding between them? Many philosophers have challenged this view, and even MacIntyre, in Three Rival Versions of Moral Enquiry (1990b), has significantly qualified it, now claiming that it is possible to argue across conceptions of justice.
Another conclusion that we might draw from this discussion of conceptions of justice is 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 communication critique of welfare liberalism can be rebutted, it may be possible to reconcile, at a practical level, the differences between welfare liberal justice, socialist justice, and feminist justice. If this can be done, all that would be necessary to reasonably resolve disputes about justice would be to clarify what the shared practical requirements of these conceptions of justice are and simply to act on them.
The Provision of Just Healthcare
Assuming that it is possible to show that libertarian, welfare liberal, socialist, communitarian, and feminist conceptions of justice have the same practical requirements as a right to welfare and a right to equal opportunity, then in order to determine the morally appropriate level of healthcare, it would be necessary to determine what provision of healthcare would be required by these rights. Since a right to welfare and a right to equal opportunity are usually associated with a welfare liberal conception of justice, it would seem reasonable to use Rawls's original position decision procedure—a procedure favored by welfare liberals—to determine what level of healthcare would be required by a right to welfare and a right to equal opportunity.
In Just Health Care (1985) and Am I My Parents' Keeper? (1988), Norman Daniels develops just such an account of healthcare. Daniels imagines people behind a veil of ignorance trying to determine how they should allocate healthcare services over their lifetimes. Behind this veil of ignorance, people are to imagine themselves ignorant of their actual age so that they could be young or old. Daniels claims that people using this Rawlsian decision procedure would reserve certain life-extending technologies for their younger years and thus maximize their chances of living a normal life span, even if that meant reducing the medical resources that would be available in their old age.
The consequences of using a Rawlsian decision procedure to determine the morally appropriate level of healthcare required by a right to welfare and a right to equal opportunity are (1) a focus on death-preventing level of healthcare for the young, (2) a focus on a life-enhancing healthcare for both young and old, and (3) a willingness to cut back on death-preventing healthcare for the old to some extent when it conflicts with (1) and possibly when it conflicts with(2) as well.
Yet these consequences remain indeterminate until we can specify the amount of resources that are to be devoted to healthcare rather than to meeting the various other needs and wants that people have. It will not do simply to have each person choose the level of healthcare that he or she prefers, because we cannot assume that everyone will have sufficient income to purchase whatever level of healthcare he or she wants or needs. Rather, there seem to be two options.
One option is to specify an optimal and affordable level of healthcare and then guarantee this level of healthcare to all legitimate claimants. The other option is to specify a decent minimal level of healthcare and guarantee that level of healthcare to all legitimate claimants, but then allow higher levels of healthcare to be purchased by whoever has the income and desire to do so. Of course, both these options will leave some people dissatisfied. The equal-healthcare option will leave dissatisfied people who would have preferred and could have afforded a higher level of healthcare that would have been available under the multi-tiered healthcare option. The multi-tiered healthcare option will leave dissatisfied people who would receive only the decent minimum level of healthcare under that option but who want or need more healthcare than they will be receiving. Is there any just resolution of this conflict?
Assuming again that we are trying to determine the morally appropriate level of healthcare required by a right to welfare and a right to equal opportunity, it is surely the case that nothing less than a guaranteed decent minimum level of healthcare to all legitimate claimants would be morally acceptable. But is a multi-tiered option for healthcare morally permissible, or is the option of an equal level of healthcare morally required?
To answer this question, we must take into account all the morally legitimate claimants to our available resources. They include not only the members of the particular society to which we happen to belong but also distant peoples and future generations as well. Once we recognize how numerous are the morally legitimate claimants on the available resources, it becomes clear that all that we can hope to do is provide a decent minimal level of healthcare to all claimants. Given the morally legitimate claims that distant peoples and future generations make on our available resources, it is unlikely that we will have sufficient resources to allow people to purchase higher levels of healthcare (the multi-tiered option). Morally, we would seem to have no other choice than to favor the same level of healthcare for everybody (the equal-healthcare option).
In preferring the equal-healthcare option, we appealed not to the ideal of equality itself but, rather, to the goal of providing all legitimate claimants with a decent minimum level of healthcare. Given that available resources are limited, to meet the goal of providing a decent minimum of healthcare to all legitimate claimants, equality of healthcare for all legitimate claimants is required. In this context, no one can have more than equality if everyone is to have enough. This choice would clearly be favored by people behind a Rawlsian veil of ignorance, assuming that the hypothetical choosers are understood to represent all morally legitimate claimants.
Nor could one reasonably object to the ideal of including distant peoples and future generations within the class of morally legitimate claimants, because each of the five conceptions assumes that each human being has the same basic rights. So if these basic rights that each human being has include a right to welfare and a right to equal opportunity, the requirements to provide each human being with a decent minimum of healthcare would clearly follow.
Nevertheless, there remains the question of how to specify this minimum level of healthcare that all legitimate claimants are to receive. The problem here is how to specify how much of the available resources should go to providing everyone with a decent minimum of healthcare rather than providing for the satisfaction of people's other needs and wants. Yet here, too, the question seems resolvable with the aid of a Rawlsian hypothetical choice procedure. We simply need to introduce behind the veil of ignorance the knowledge of the relevant technology for meeting people's basic needs and the knowledge of available resources to decide how much of the resources should be devoted to providing a decent minimum level of healthcare and how much should be devoted to meeting the other needs and wants that people have.
In this way, we should be able to determine what specific requirements of just healthcare are grounded in a right to welfare and a right to equal opportunity. Moreover, these specific requirements of just healthcare would be further supported if it can be shown that the rights from which these healthcare requirements are derived are themselves the shared practical requirements of libertarian, welfare liberal, socialist, communitarian, and feminist conceptions of justice.
james p. sterba (1995)
revised by author
SEE ALSO: Aging and the Aged: Societal Aging; Children: Rights of Children; Communitarianism and Bioethics; Economic Concepts in Healthcare; Ethics: Social and Political Theories; Future Generations, Reproductive Technologies and Obligations to; Healthcare Resources, Allocation of; Human Rights; Health Insurance; Health Policy in International Perspectives; Health Policy in the United States; Just Wages and Salaries; Managed Care; Medicaid; Medicare; Utilitarianism and Bioethics; Warfare: Introduction
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"Justice." Encyclopedia of Bioethics. . Encyclopedia.com. (September 12, 2018). http://www.encyclopedia.com/science/encyclopedias-almanacs-transcripts-and-maps/justice
"Justice." Encyclopedia of Bioethics. . Retrieved September 12, 2018 from Encyclopedia.com: http://www.encyclopedia.com/science/encyclopedias-almanacs-transcripts-and-maps/justice
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Justice has to do with the distribution of benefits and burdens, rewards and punishments. Among the most important benefits and burdens of contemporary society are science and technology, their products and their costs. Although science and technology are involved with the administration of legal justice in many ways—from their uses in forensics to identify and prosecute criminals to the testimony of scientific and engineering experts in civil cases—the primary focus in this entry will be on the nature of justice in its own right, pointing out some implications for science and technology.
Versions of Justice
As an instrument for the distribution of benefits and burdens, the general concept is clear, but the various interpretations of the concept, and its applications are more contentious. Is justice a transcendent reality, as Plato held? A formal property having to do with proportional distribution, as Aristotle contended? Simply what contracting parties invent in mutually self-interested agreements, as Thomas Hobbes argued? An artificial construct as David Hume maintained? Or does justice have to do with ownership, a rendering to each according to one's due, as Polemarchus reports in Plato's Republic (331e) was the definition of the poet Simonides—a view also advanced by the Roman legal philosophers Cicero and Ulpian, as well as Thomas Aquinas? Is it possible that scientific and technological progress promote justice, especially the just power of human beings over the unjust forces of nature, as Francis Bacon argued? Or is a kind of natural justice thereby diminished, as Socrates in the Republic (372e) and Jean-Jacques Rousseau, in quite different ways, both proposed?
The traditional symbol of justice is a woman wearing a blindfold, holding a pair of equally balanced scales in one hand, and a sword in the other. The metaphor points to the symmetry between the quality of human judgment on one side and the rewards or punishments on the other. Justice is blind to all irrelevant considerations such as birth or social status or race or gender, and is concerned only with giving one what is deserved.
The earliest definition of justice in the West is the Simonides quote from Plato's Republic: "Justice is to render each person his due," giving to each person what each deserves, based on the person's character traits, including ability, virtues, and vices. If one is excellent, a suitable reward is appropriate. If one is vicious, punishment is warranted. A mediocre individual earns a mediocre benefit. Indeed Plato's Republic describes a meritocracy, made up of people in three classes, categorized according to their abilities.
The classic conception applies both to distributive and retributive versions of justice. Distributive justice concerns the distribution of benefits and burdens. Retributive justice deals with punishments and rewards. Immanuel Kant argued that not only should people who are good be rewarded with happiness in proportion to their goodness, but people who willfully do bad things should be unhappy in proportion to their bad intentions. Following this thought, he argued that crimes such as murder justified imposition of the death penalty. Kant used this thinking as a premise for the existence of God and life after death, arguing that justice required a god and a future existence for persons to receive their just rewards and punishments.
This classic view has been held by many philosophers throughout history. It is found in the Hindu and Buddhist idea of karma, which holds that each person will be reincarnated according to individual moral character, and in the Bible, which states, "whatsoever a man soweth that shall he also reap" (Gal. 6:7). Somewhat unexpectedly, even Karl Marx in his labor theory of value (a worker should be rewarded for the full value of his work) seems to share the classical theory of just desert. The utilitarian philosopher John Stuart Mill also advocated a version of this doctrine, deeming it the central meaning of justice, which in turn signifies simply the most stringent requirements of utilitarian morality. Is justice simply the secular analogue to the religious doctrine of rewards and punishment according to merit? Contemporary political philosophers, such as John Rawls and Derek Parfit rejected or qualified the salience of this classic conception of justice as desert by arguing more egalitarian or need-based conceptions.
In current discussions Rawls's A Theory of Justice (1971) and Robert Nozick's Anarchy, State, and Utopia (1974) remain common reference points. Rawls argues a view of justice as fairness defined by that impartial, hypothetical contract that people would adopt from behind a veil of ignorance regarding with what benefits or burdens they might begin their lives in a social order. Extending a perspective developed in John Hospers's Libertarianism (1971), Nozick defends justice as grounded in rights to liberty and ownership. Other contemporary analyses of justice include arguments by Parfit (1984), that justice requires some consideration of need; and by Michael Walzer (1983) and Nicholas Rescher (2002) that justice is not a single concept, but a plurality of concepts relative to different social contexts.
According to Hume, questions of justice typically arise when, in situations of scarcity, human beings seek to adjudicate between competing claims for limited goods. Such goods might be material benefits, social prestige, or power—any of which could be closely associated with science or technology. Suppose 100 competitors apply for a highly desirable position such as candidate at a leading graduate program in science or director of a major engineering project. What are the correct moral and legal criteria by which to decide who should be granted the position? Should selection be based on technical knowledge, need, utility, previous effort, likely contribution to be made? Should market forces be a factor? Race, ethnicity, or gender? If in the past blacks or women or the disabled were systematically discriminated against, should affirmative action come into play?
Or consider the use of kidney dialysis machines in a county hospital that can afford only five machines, but has a waiting list of twenty or thirty people. How should doctors decide which five people should be treated? By lottery? By a process of first come first served? By greatest need? By merit? By desert? By utility, for example, if one of the candidates is the mayor of a town that is part of the county and who has served the community well for many years? Or should a complex set of factors (including age, contribution, responsibilities, merit, and need) be used?
The most significant controversial issue in the debate over distributive justice is that of economic justice. How should wealth be divided up in society? Should the free enterprise system determine how much money and wealth people end up with or should an effort be made to redistribute wealth through some sort of income tax policy? Should there be a vigorous welfare program, ensuring that no one falls below a certain economic threshold?
Types of Justice: Formal and Material
Theories of justice may be divided into formal and material types. A formal theory of justice provides the formula or definition of justice without directly filling in the content or criteria of application. Material theories of justice specify the relevant content to be inserted into the formulas. They dictate what the relevant criterion is. The classical principle of formal justice, based on Book V of Aristotle's Nicomachean Ethics is that "equals should be treated equally and unequals unequally." The formula is one of proportionality:
That is, if person A has X units of a relevant property P, and B has Y units (where Y is more or less than X), then A should pay proportionally more or less of the relevant burden Q than B. For example, if A has worked eight hours at a job and B only four hours, and time worked is the relevant criterion for reward, A should be paid twice as much as B.
The formal principle is used in law in the guise of stare decisis, the rule of precedent—like cases should be decided in like manner. The principle applies not only to the case of distributive justice, but also of retributive justice or punishment and commutative justice, in which obligation is based on a promise or contract that requires fulfillment.
The formal principle of justice seems reducible to the principle of universalizability: Treat like cases similarly unless there is a relevant difference, which itself is simply the principle of consistency. Be consistent in decisions. If there is no relevant difference between agents, treat them similarly. Insofar as there is no relevant moral difference between the sexes, this applies to the morality of sexual relations. If it is all right for Jack to engage in premarital sex, then it is also all right for Jill to engage in premarital sex; but if it is immoral for Jill to engage in premarital sex, it is also immoral for Jack. The formal principle of justice does not indicate whether some act is right or wrong, but simply calls for consistency. If people were content to live only with the formal principle, they might treat others very badly and still be considered just. As player Henry Jordan once said of Vince Lombardi, the legendary coach of football's Green Bay Packers, "He treated us all the same—like dogs."
Some philosophers, such as Stanley Benn, believe that the formal principle of equal treatment for equals implies a kind of presumption of equal treatment of people. But there are problems with this viewpoint. As Joel Feinberg (1970) points out, sometimes the presumption is for unequal treatment of people. Suppose that a father suddenly decides to share his fortune and divides it in two, giving half to his oldest son and half to his neighbor's oldest son, but nothing to his other children. This kind of impartiality is arguably misguided and, in reality, unjust. Society must determine in which respect people are equal and so deserve the same kind of treatment; this seems to be a material problem, not a purely formal one. In other words, Benn confuses an exceptive principle (Treat all people alike except when there are relevant differences among them) that is formal with a presumptive principle (Treat all people alike until it can be shown that there are relevant differences among them).
The formal principle does not tell which qualities determine which kinds of distribution of goods or treatment. Thus material principles are needed to supplement the formal definition. Aristotle's own material principle involved merit: People are to be given what they deserve. A coach could justifiably treat his players like dogs only if they were doglike; otherwise, he should treat them more humanely.
Types of Justice: Patterned and Nonpatterned
Material theories of justice may be divided into patterned and nonpatterned types of justice. A patterned principle chooses some trait(s) that indicates how the proper distribution is to be accomplished. It has the form:
To each according to ————.
Robert Nozick (1974) rejects patterned types of principles, such as those of Aquinas, Rawls, and Rescher, because this type of attempt to regulate distribution constitutes a violation of liberty. The point can be illustrated by considering how a great inventor can justly upset the patterned balance. Suppose the existence of a patterned situation of justice based on equality. Imagine also that there is a great demand for some inventor's product and that people are willing to pay the inventor well for it. If millions of people pay for the product, the inventor takes home a great deal more than the patterned formula allows, but seems to have a right to it. Nozick's point is that, in order to maintain a pattern, one must either interfere to prevent people from allocating resources as they wish, or intervene to take from people resources that others have transferred to them.
Nozick argues for a libertarian view of nonpatterned justice, which he calls the theory of entitlement. A distribution is just if all people have those things to which they are entitled. In determining what people are entitled to, the original position of holdings or possessions is an important factor, as is what constitutes a just transfer of holdings. Borrowing from John Locke's theory of property rights, Nozick argues that people have a right to any possession so long as ownership does not worsen the position of anyone else.
As in the past, justice in the early twenty-first century remains a widely contested concept. The main current rival positions are the classic theory of just desert, egalitarian theory of distribution according to need, and rights theories. The challenge for political philosophy is to sort out the competing claims of such theories and make sense of people's deepest but conflicting intuitions—especially with regard to the uses and influences of science and technology.
With regard to retributive or criminal justice, the scientific study of human behavior has, for instance, raised important questions about levels of human accountability. To what extent should psychology and neuroscience inform the legal justice system? Forensics and studies of evidence that, for instance, question the reliability of eyewitness accounts, along with increased reliance on scientific experts, likewise have implications for court procedures. Some philosophers such as Brian Barry (1989) argue the importance of the sciences of game theory and decision theory to analyses of justice.
With regard to distributive justice, science and technology, by their discoveries and inventions especially in the areas of new drugs and lifesaving medical devices, create new challenges for justice. How shall society use these drugs and therapies? Should drugs for AIDS be distributed gratis to African countries that cannot afford to pay the market price? Is it just for pharmaceutical companies, which produced the drugs, to charge the same price to all buyers, or should allowances be made for depth of need and relative ability to pay?
With regard to science and technology in general, what constitutes a just distribution of the benefits of scientific discoveries and engineering inventions? Do owners of patents have an obligation to make some sacrifice in foregoing potential profits from their work to enhance distribution? Or does justice allow them to sell their work to the highest bidder, independent of the social result? Does the state promote justice through the regulation of science and technology, or is regulation properly constrained by respect for liberty and property? In advanced technological societies where, according to Langdon Winner (1986), technological design can be a hidden form of politics, and for Ulrich Beck (1986), the avoidance of risk is now a scarce commodity, do different theories of justice imply different responsibilities for scientists, engineers, citizens, politicians, or corporations? Indeed in a social system in which corporations are granted the status of legal persons, and serve as major vehicles for scientific and technological research, development, and innovation, what concept of justice best enlightens responsibilities in the public realm?
Finally because of technological transformations of the public realm, questions of justice have been extended both spatially and temporally. Increased telecommunications promotes questions of international justice. Increased ability to impact future generations raises questions of intergenerational justice.
LOUIS P. POJMAN
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"Justice." Encyclopedia of Science, Technology, and Ethics. . Encyclopedia.com. (September 12, 2018). http://www.encyclopedia.com/science/encyclopedias-almanacs-transcripts-and-maps/justice-0
"Justice." Encyclopedia of Science, Technology, and Ethics. . Retrieved September 12, 2018 from Encyclopedia.com: http://www.encyclopedia.com/science/encyclopedias-almanacs-transcripts-and-maps/justice-0