Justicein one sense is identical with the ethics of who should receive benefits and burdens, good or bad things of many sorts, given that others might receive these things. Although discourse about justice is often influenced by models of law, the ethics of justice is a subject in itself. To 'receive' a benefit or burden is to have any of a large number of more concrete relations to it: not only legal ownership or other entitlement may be relevant, but also non-legal matters. Enjoyment of an experience, having access to many opportunities, getting protection from or exposure to a risk, and so on may be relevant. The 'others' relevant to justice may be those living in a person's community, those in other communities, or even those dead, those yet to live, or perhaps possible persons who will never live. Central cases of justice, however, usually involve persons living at the same time in the same community (although the community may be very narrowly or broadly defined). Here intuitions and arguments seem better grounded.
There are various contexts for talk about justice, including (at least) distributive, retributive, and compensatory justices (which apparently overlap to some extent). Distributive justice concerns the ethical appropriateness of which recipients get which benefits and burdens (our focus). Retributive justice concerns the ethical appropriateness of punishment for wrongdoing. Compensatory justice concerns the ethical appropriateness of compensating with some good because of a loss or appropriating some good because of a gain. (From Aristotle onward, philosophers have taken an interest in this.)
A few philosophers have doubted the rational basis or the desirability of any justice orientation. But many philosophers have advocated some conception of justice, often aligning themselves with some general political tendency: 'liberal democratic capitalism', 'laissez-faire market-oriented capitalism', some variety of 'socialism', etc. Indeed, political and economic power are goods, and to worry about the justice of who has them is familiar, especially for those philosophers who have taken egalitarianism (a belief in human equality, especially with respect to social, political, and economic rights and privileges) to be basic to justice.
There is indeed a presumption in favor of treating persons equally in distributive matters, unless some relevant difference can be specified to distinguish persons treated unequally. (Aristotle). To treat persons unequally with respect to distribution of important benefits and burdens, in the absence of a justification, is a paradigm of injustice. The burden of justification should be regarded as very weighty, strong enough so that a reasonable case might be made (hypothetically, if not actually) to those less favored by the distribution. Utilitarian arguments, notoriously, seem incapable of discharging this justificatory burden. For one thing, utilitarians arguably are not entitled to a sufficiently strong notion of a moral right to unpack many modern, rights-centered notions of justice. Although considerations of distributive justice might not always trump other sorts of ethical considerations (including utility) in a context, they do properly count a great deal.
Modern accounts of justice tend to be based on ideas about human rationality, human intuitions, human community, or the like (as opposed, say, to 'cosmic justice' or the will of God). John Rawls's very influential A Theory of Justice and his subsequent writings are instructive in this connection. Rawls argues that his two principles of justice (the first requiring, roughly, an equal right to the most extensive system of equal basic liberties, taking priority over the second, a principle that allows for certain inequalities subject to various constraints, including the requirement that the inequalitiesare to the greatest benefit of the least advantaged) would be chosen by autonomous judges behind a veil of ignorance designed to deny them knowledge of their own positions in a social system to which the principles will apply. Increasingly, in post-Theory of Justice writing especially, Rawls stresses the constructivism (the notion that all the facts that we can ever possess are constructed. An independent reality is not denied but is unknowable) of his theory, and its roots in a particular community.
A large variety of criteria has been proposed for ethically just distributions. Some think just distributions should be in accordance with contribution, some with effort, some need, some desert, and so on. Some think that just distributions are a matter of the history of how a certain distribution came about. There seems no finite list of criteria, no definitive decision procedure here.
In light of this, one can see the attractions of 'pluralism' and 'complex equality', as presented by Michael Walzer. People collectively 'create' goods of innumerable sorts and distribute them in accordance with many criteria, the appropriateness of which changes historically and varies with the social sphere concerned, whether we are talking about money, medical care, schooling, political power, love, and so on.
Bibliography Brian Barry, Theories of Justice (Berkeley, Calif., 1989).
John Rawls, A Theory of Justice (Cambridge, Mass., 1971).
Michael Walzer, Spheres of Justice (New York, 1983).
Adapted fromThe Oxford Companion to Philosophy, © Oxford University Press 1995
A basis for the Nozick discussion—Locke versus Hobbes: Premises
Locke / HobbesMan is by nature a social animal. / Man is not by nature a social animal; society could not exist except by the power of the state.
In the state of nature men mostly kept their promises and honored their obligations, and, though insecure, it was mostly peaceful, good, and pleasant. He quotes the American frontier and Soldania as examples of people in the state of nature, where property rights and (for the most part) peace existed. Princes are in a state of nature with regard to each other. Rome and Venice were in a state of nature shortly before they were officially founded. In any place where it is socially acceptable to oneself to punish wrongdoings done against you, for example on the American frontier, people are in a state of nature. Though such places and times are insecure, violent conflicts are often ended by the forcible imposition of a just peace on evil doers, and peace is normal. / No society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.
Humans know what is right and wrong, and are capable of knowing what is lawful and unlawful well enough to resolve conflicts. In particular, and most importantly, they are capable of telling the difference between what is theirs and what belongs to someone else. Regrettably they do not always act in accordance with this knowledge. / Our knowledge of objective, true answers on such questions is so feeble, so slight and imperfect as to be mostly worthless in resolving practical disputes. In a state of nature people cannot distinguish what belongs to them and what belongs to someone else. Property exists solely by the will of the state; thus, in a state of nature men are condemned to endless violent conflict. In practice morality is for the most part merely a command by some person or group or God, and law merely the momentary will of the ruler.
Peace is the norm, and should be the norm. We can and should live together in peace by refraining from molesting each other's property and persons, and for the most part we do. / Men cannot know good and evil, and in consequence can only live in peace together by subjection to the absolute power of a common master, and therefore there can be no peace between kings. Peace between states is merely war by other means.
A basis for the Nozick discussion—Locke versus Hobbes: Conclusions
Issue / Locke / HobbesThe Social Contract / We give up our right to exact retribution for crimes in return for impartial justice backed by overwhelming force. We retain the right to life and liberty, and gain the right to just, impartial protection of our property / If you shut up and do as you are told, you have the right not to be killed
Violation of the social contract / If a ruler seeks absolute power, if he acts both as judge and participant in disputes, he puts himself in a state of war with his subjects and we have the right and the duty to kill such rulers and their servants. / No right to rebel. The ruler's will defines good and evil for his subjects. The King can do no wrong, because lawful and unlawful, good and evil, are merely commands, merely the will of the ruler.
Civil Society / Civil society precedes the state, both morally and historically. Society creates order and grants the state legitimacy. / Civil society is the application of force by the state to uphold contracts and so forth. Civil society is a creation of the state. Civil society is "jostling", pointless conflict and pursuit of selfish ends that a good government should suppress.
Rights / Men have rights by their nature / You conceded your rights to the government, in return for your life
Role of the State / The only important role of the state is to ensure that justice is seen to be done / Whatever the state does is just by definition. All of society is a direct creation of the state, and a reflection of the will of the ruler.
Authorized use of force / Authorization is meaningless, except that the authorization gives us reason to believe that the use of force is just. If authorization does not give us such confidence, perhaps because the state itself is a party to the dispute, or because of past lawless acts and abuses by the state, then we are back in a state of nature. / The concept of just use of force is meaningless or cannot be known. Just use of force is whatever force is authorized
Libertarian Justice
Robert Nozick(1938-2002), from Anarchy, State and Utopia
Nozick's Anarchy, State and Utopia was published only 3 years after Rawls's Theory of Justice, and in addition to the notoriety it achieved in its own right, it formed an obvious pole of opposition and a staging area for attacks on Rawls and the welfare liberal tradition. Nozick also goes back to the state of nature imagery, but for him, too, this is more than anything else a thought-experiment in which to establish the various rational possibilities for the construction or and justification of society. Or, more properly, it is a question of the justification for the state, not society as such, for Nozick is wisely abstemious on the question of the natural state of society and human communities. What justifies the existence of state power, and how much state power is justified? To answer these questions, Nozick raises some neo-Lockean issues about the protection of property and whether we could assure ourselves of mutual security without the imposition of a state. He considers the possibility of various "protective associations" and whether they might do the job, and argues that, of necessity but not by design, a state—if only a minimal state—would be the inevitable product of these various efforts.
Selections from Anarchy, State, and Utopiaby Robert Nozick (1974)
Individuals in Locke's state of nature are in "a state of perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave or dependency upon the will of any other man" (sect. 4). The bounds of the law of nature require that "no one ought to harm another in his life, health, liberty, or possessions" (sect. 6). Some persons transgress these bounds, "invading others' rights and...doing hurt to one another," and in response people may defend themselves or others against such invaders of rights (chap. 3). The injured party and his agents may recover from the offender "so much as may make satisfaction for the harm he has suffered" (sect. 10); "everyone has a right to punish the transgressors of that law to such a degree as may hinder its violation" (sect. 7); each person may, and may only "retribute to [a criminal] so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint" (sect. 8).
There are "inconveniences of the state of nature" for which, says Locke, "I easily grant that civil government is the proper remedy" (sect. 13). To understand precisely what civil government remedies, we must do more than repeat Locke's list of the inconveniences of the state of nature. We also must consider what arrangements might be made within a state of nature to deal with these inconveniences-to avoid them or to make them less likely to arise or to make them less serious on the occasions when they do arise. Only after the full resources of the state of nature are brought into play, namely all those voluntary arrangements and agreements persons might reach acting within their rights, and only after the effects of these are estimated, will we be in a position to see how serious are the inconveniences that yet remain to be remedied by the state, and to estimate whether the remedy is worse than the disease.
In a state of nature, the understood natural law may not provide for every contingency in a proper fashion, and men who judge in their own case will always give themselves the benefit of the doubt and assume that they are in the right. They will overestimate the amount of harm or damage they have suffered, and passions will lead them to attempt to punish others more than proportionately and to exact excessive compensation. Thus private and personal enforcement of one's rights (including those rights that are violated when one is excessively punished) leads to feuds, to an endless series of acts of retaliation and exactions of compensation. And there is no firm way to settle such a dispute, to end it, and to have both parties know it is ended. Even if one party says he'll stop his acts of retaliation, the other can rest secure only if he knows the first still does not feel entitled to gain recompense or to exact retribution, and therefore entitled to try when a promising occasion presents itself. Any method a single individual might use in an attempt irrevocably to bind himself into ending his part in a feud would offer insufficient assurance to the other party; tacit agreements to stop also would be unstable. Such feelings of being mutually wronged can occur even with the clearest right and with joint agreement on the facts of each person's conduct; all the more is there opportunity for such retaliatory battle when the facts or the rights are to some extent unclear. Also, in a state of nature a person may lack the power to enforce his rights; he may be unable to punish or exact compensation from a stronger adversary who has violated them (sects. 123, 126).
Protective Associations
How might one deal with these troubles within a state of nature? Let us begin with the last. In a state of nature an individual may himself enforce his rights, defend himself, exact compensation, and punish (or at least try his best to do so). Others may join with him in his defense, at his call. They may join with him to repulse an attacker or to go after an aggressor because they are public spirited, or because they are his friends, or because he has helped them in the past, or because they wish him to help them in the future, or in exchange for something. Groups of individuals may form mutual-protection associations: all will answer the call of any member for defense or for the enforcement of his rights. In union there is strength.
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A mutual-protection association might attempt to deal with conflict among its own members by a policy of nonintervention. But this policy would bring discord within the association and might lead to the formation of subgroups who might fight among themselves and thus cause the breakup of the association. This policy would also encourage potential aggressors to join as many mutual-protection associations as possible in order to gain immunity from retaliatory or defensive action, thus placing a great burden on the adequacy of the initial screening procedure of the association. Thus protective associations (almost all of those that will survive which people will join) will not follow a policy of nonintervention; they will use some procedure to determine how to act when some members claim that other members have violated their rights. Many arbitrary procedures can be imagined (for example, act on the side of that member who complains first), but most persons will want to join associations that follow some procedure to find out which claimant is correct. When a member of the association is in conflict with nonmembers, the association also will want to determine in some fashion who is in the right, if only to avoid constant and costly involvement in each member's quarrels, whether just or unjust. The inconvenience of everyone's being on call, whatever their activity at the moment or inclinations or comparative advantage, can be handled in the usual manner by division of labor and exchange. Some people will be hired to perform protective functions, and some entrepreneurs will go into the business of selling protective services. Different sorts of protective policies would be offered, at different prices, for those who may desire more extensive or elaborate protection.