From Wikipedia, the free encyclopedia
Justice, in its broadest sense, is the principle that people
receive that which they deserve, with the interpretation of what then
constitutes "deserving" being impacted upon by numerous fields, with
many differing viewpoints and perspectives, including the concepts of moral correctness based on ethics, rationality, law, religion, equity and fairness.
Consequently, the application of justice differs in every culture. Early theories of justice were set out by the Ancient Greek philosophers Plato in his work The Republic, and Aristotle in his Nicomachean Ethics.
Throughout history various theories have been established. Advocates of
divine command theory argue that justice issues from God. In the 1600s,
theorists like John Locke argued for the theory of natural law. Thinkers in the social contract tradition argued that justice is derived from the mutual agreement of everyone concerned. In the 1800s, utilitarian thinkers including John Stuart Mill argued that justice is based on the best outcomes for the greatest number of people. Theories of distributive justice concern what is to be distributed, between whom they are to be distributed, and what is the proper distribution. Egalitarians argued that justice can only exist within the coordinates of equality.
John Rawls used a social contract argument to show that justice, and especially distributive justice, is a form of fairness. Property rights theorists (like Robert Nozick)
also take a consequentialist view of distributive justice and argue
that property rights-based justice maximizes the overall wealth of an
economic system. Theories of retributive justice are concerned with punishment for wrongdoing.
Restorative justice (also sometimes called "reparative justice") is an approach to justice that focuses on the needs of victims and offenders.
Harmony
In his dialogue Republic, Plato uses Socrates to argue for justice that covers both the just person and the just City State.
Justice is a proper, harmonious relationship between the warring parts
of the person or city. Hence, Plato's definition of justice is that
justice is the having and doing of what is one's own. A just man is a
man in just the right place, doing his best and giving the precise
equivalent of what he has received. This applies both at the individual
level and at the universal level. A person's soul has three parts –
reason, spirit and desire. Similarly, a city has three parts – Socrates
uses the parable of the chariot to illustrate his point: a chariot works
as a whole because the two horses' power is directed by the charioteer.
Lovers of wisdom – philosophers, in one sense of the term – should rule because only they understand what is good.
If one is ill, one goes to a medic rather than a farmer, because the
medic is expert in the subject of health. Similarly, one should trust
one's city to an expert in the subject of the good, not to a mere politician
who tries to gain power by giving people what they want, rather than
what's good for them. Socrates uses the parable of the ship to
illustrate this point: the unjust city is like a ship in open ocean,
crewed by a powerful but drunken captain (the common people), a group of
untrustworthy advisors who try to manipulate the captain into giving
them power over the ship's course (the politicians), and a navigator
(the philosopher) who is the only one who knows how to get the ship to
port. For Socrates, the only way the ship will reach its destination –
the good – is if the navigator takes charge.
Divine command
Advocates of divine command theory argue that justice, and indeed the
whole of morality, is the authoritative command of God. Murder is wrong
and must be punished, for instance, because God says it so. Some
versions of the theory assert that God must be obeyed because of the
nature of his relationship with humanity, others assert that God must be
obeyed because he is goodness itself, and thus doing what he says would
be best for everyone.
A meditation on the Divine command theory by Plato can be found in his dialogue, Euthyphro. Called the Euthyphro dilemma,
it goes as follows: "Is what is morally good commanded by God because
it is morally good, or is it morally good because it is commanded by
God?" The implication is that if the latter is true, then justice is
beyond mortal understanding; if the former is true, then morality exists
independently from God, and is therefore subject to the judgment of
mortals. A response, popularized in two contexts by Immanuel Kant and C. S. Lewis,
is that it is deductively valid to argue that the existence of an
objective morality implies the existence of God and vice versa.
Natural law
For advocates of the theory that justice is part of natural law (e.g., John Locke),
it involves the system of consequences that naturally derives from any
action or choice. In this, it is similar to the laws of physics: in the
same way as the Third of Newton's laws of Motion requires that for every
action there must be an equal and opposite reaction, justice requires
according individuals or groups what they actually deserve, merit, or
are entitled to.
Justice, on this account, is a universal and absolute concept: laws,
principles, religions, etc., are merely attempts to codify that concept,
sometimes with results that entirely contradict the true nature of
justice.
Despotism and skepticism
In Republic by Plato, the character Thrasymachus
argues that justice is the interest of the strong – merely a name for
what the powerful or cunning ruler has imposed on the people.
Mutual agreement
Advocates of the social contract agree that justice is derived from
the mutual agreement of everyone concerned; or, in many versions, from
what they would agree to under hypothetical conditions including equality and absence of bias. This account is considered further below, under 'Justice as Fairness'. The absence of bias refers to an equal ground for all people concerned in a disagreement (or trial in some cases).
Subordinate value
According to utilitarian thinkers including John Stuart Mill, justice is not as fundamental as we often think. Rather, it is derived from the more basic standard of rightness, consequentialism: what is right is what has the best consequences (usually measured by the total or average welfare
caused). So, the proper principles of justice are those that tend to
have the best consequences. These rules may turn out to be familiar ones
such as keeping contracts;
but equally, they may not, depending on the facts about real
consequences. Either way, what is important is those consequences, and
justice is important, if at all, only as derived from that fundamental
standard. Mill tries to explain our mistaken belief that justice is
overwhelmingly important by arguing that it derives from two natural
human tendencies: our desire to retaliate against those who hurt us, or
the feeling of self-defense and our ability to put ourselves
imaginatively in another's place, sympathy. So, when we see someone
harmed, we project ourselves into their situation and feel a desire to
retaliate on their behalf. If this process is the source of our feelings
about justice, that ought to undermine our confidence in them.
Theories of distributive justice
Theories of distributive justice need to answer three questions:
- What goods are to be distributed? Is it to be wealth, power, respect, opportunities or some combination of these things?
- Between what entities are they to be distributed? Humans (dead, living, future), sentient beings, the members of a single society, nations?
- What is the proper distribution? Equal, meritocratic, according to social status, according to need, based on property rights and non-aggression?
Distributive justice theorists generally do not answer questions of who has the right
to enforce a particular favored distribution. On the other hand,
property rights theorists argue that there is no "favored distribution."
Rather, distribution should be based simply on whatever distribution
results from lawful interactions or transactions (that is, transactions
which are not illicit).
This section describes some widely held theories of distributive justice, and their attempts to answer these questions.
Social justice
Social justice is concerned with the just relationship between
individuals and their society, often considering how privileges,
opportunities, and wealth ought to be distributed among individuals. Social justice is also associated with social mobility, especially the ease with which individuals and families may move between social strata. Social justice is distinct from cosmopolitanism, which is the idea that all people belong to a single global community with a shared morality. Social justice is also distinct from egalitarianism,
which is the idea that all people are equal in terms of status, value,
or rights, as social justice theories do not all require equality. For example, sociologist George C. Homans
suggested that the root of the concept of justice is that each person
should receive rewards that are proportional to their contributions. Economist Friedrich Hayek
argued that the concept of social justice was meaningless, saying that
justice is a result of individual behavior and unpredictable market
forces.
Social justice is closely related to the concept of relational justice,
which is concerned with the just relationship with individuals who
possess features in common such as nationality, or who are engaged in
cooperation or negotiation.
Fairness
In his A Theory of Justice, John Rawls used a social contract
argument to show that justice, and especially distributive justice, is a
form of fairness: an impartial distribution of goods. Rawls asks us to
imagine ourselves behind a veil of ignorance
that denies us all knowledge of our personalities, social statuses,
moral characters, wealth, talents and life plans, and then asks what
theory of justice we would choose to govern our society when the veil is
lifted, if we wanted to do the best that we could for ourselves. We
don't know who in particular we are, and therefore can't bias the
decision in our own favour. So, the decision-in-ignorance models
fairness, because it excludes selfish bias. Rawls argues that each of us would reject the utilitarian
theory of justice that we should maximize welfare (see below) because
of the risk that we might turn out to be someone whose own good is
sacrificed for greater benefits for others. Instead, we would endorse
Rawls's two principles of justice:
- Each person is to have an equal right to the most extensive
total system of equal basic liberties compatible with a similar system
of liberty for all.
- Social and economic inequalities are to be arranged so that they are both
- to the greatest benefit of the least advantaged, consistent with the just savings principle, and
- attached to offices and positions open to all under conditions of fair equality of opportunity.
This imagined choice justifies these principles as the principles of
justice for us, because we would agree to them in a fair decision
procedure. Rawls's theory distinguishes two kinds of goods – (1) the good of liberty rights
and (2) social and economic goods, i.e. wealth, income and power – and
applies different distributions to them – equality between citizens for
(1), equality unless inequality improves the position of the worst off
for (2).
In one sense, theories of distributive justice may assert that
everyone should get what they deserve. Theories disagree on the meaning
of what is "deserved". The main distinction is between theories that
argue the basis of just deserts ought to be held equally by everyone,
and therefore derive egalitarian accounts of distributive justice – and
theories that argue the basis of just deserts is unequally distributed
on the basis of, for instance, hard work, and therefore derive accounts
of distributive justice by which some should have more than others.
According to meritocratic theories, goods, especially wealth and social status, should be distributed to match individual merit, which is usually understood as some combination of talent and hard work. According to needs-based
theories, goods, especially such basic goods as food, shelter and
medical care, should be distributed to meet individuals' basic needs for them. Marxism is a needs-based theory, expressed succinctly in Marx's slogan "from each according to his ability, to each according to his need". According to contribution-based theories, goods should be distributed to match an individual's contribution to the overall social good.
Property rights
In Anarchy, State, and Utopia, Robert Nozick argues that distributive justice is not a matter of the whole distribution matching an ideal pattern, but of each individual entitlement having the right kind of history. It is just that a person has some good (especially, some property right) if and only if they came to have it by a history made up entirely of events of two kinds:
- Just acquisition, especially by working on unowned things; and
- Just transfer, that is free gift, sale or other agreement, but not theft (i.e. by force or fraud).
If the chain of events leading up to the person having something
meets this criterion, they are entitled to it: that they possess it is
just, and what anyone else does or doesn't have or need is irrelevant.
On the basis of this theory of distributive justice, Nozick
argues that all attempts to redistribute goods according to an ideal
pattern, without the consent of their owners, are theft. In particular, redistributive taxation is theft.
Some property rights theorists (like Nozick) also take a
consequentialist view of distributive justice and argue that property
rights based justice also has the effect of maximizing the overall
wealth of an economic system. They explain that voluntary (non-coerced)
transactions always have a property called Pareto efficiency.
The result is that the world is better off in an absolute sense and no
one is worse off. Such consequentialist property rights theorists argue
that respecting property rights maximizes the number of Pareto
efficient transactions in the world and minimized the number of
non-Pareto efficient transactions in the world (i.e. transactions where
someone is made worse off). The result is that the world will have
generated the greatest total benefit from the limited, scarce resources
available in the world. Further, this will have been accomplished
without taking anything away from anyone unlawfully.
Welfare-maximization
According to the utilitarian, justice requires the maximization of the total or average welfare across all relevant individuals.
This may require sacrifice of some for the good of others, so long as
everyone's good is taken impartially into account. Utilitarianism, in
general, argues that the standard of justification for actions,
institutions, or the whole world, is impartial welfare consequentialism, and only indirectly, if at all, to do with rights, property, need,
or any other non-utilitarian criterion. These other criteria might be
indirectly important, to the extent that human welfare involves them.
But even then, such demands as human rights would only be elements in
the calculation of overall welfare, not uncrossable barriers to action.
Theories of retributive justice
Theories of retributive justice are concerned with punishment for wrongdoing, and need to answer three questions:
- why punish?
- who should be punished?
- what punishment should they receive?
This section considers the two major accounts of retributive justice, and their answers to these questions. Utilitarian theories look forward to the future consequences of punishment, while retributive theories look back to particular acts of wrongdoing, and attempt to balance them with deserved punishment.
Utilitarianism
According
to the utilitarian, justice requires the maximization of the total or
average welfare across all relevant individuals. Punishment fights crime
in three ways:
- Deterrence. The credible threat
of punishment might lead people to make different choices;
well-designed threats might lead people to make choices that maximize
welfare. This matches some strong intuitions about just punishment: that it should generally be proportional to the crime.
- Rehabilitation.
Punishment might make "bad people" into "better" ones. For the
utilitarian, all that "bad person" can mean is "person who's likely to
cause unwanted things (like suffering)". So, utilitarianism could
recommend punishment that changes someone such that they are less likely
to cause bad things.
- Security/Incapacitation. Perhaps there are people who are irredeemable causers of bad things. If so, imprisoning
them might maximize welfare by limiting their opportunities to cause
harm and therefore the benefit lies within protecting society.
So, the reason for punishment is the maximization of welfare, and
punishment should be of whomever, and of whatever form and severity, are
needed to meet that goal. This may sometimes justify punishing the
innocent, or inflicting disproportionately severe punishments, when that
will have the best consequences overall (perhaps executing a few
suspected shoplifters
live on television would be an effective deterrent to shoplifting, for
instance). It also suggests that punishment might turn out never to be right, depending on the facts about what actual consequences it has.
Retributivism
The retributivist will think consequentialism
is mistaken. If someone does something wrong we must respond by
punishing for the committed action itself, regardless of what outcomes
punishment produces. Wrongdoing must be balanced or made good in some
way, and so the criminal deserves to be punished. It says that
all guilty people, and only guilty people, deserve appropriate
punishment. This matches some strong intuitions about just punishment: that it should be proportional to the crime, and that it should be of only and all of the guilty. However, it is sometimes argued that retributivism is merely revenge in disguise.
However, there are differences between retribution and revenge: the
former is impartial and has a scale of appropriateness, whereas the
latter is personal and potentially unlimited in scale.
Restorative justice
Restorative justice (also sometimes called "reparative justice") is
an approach to justice that focuses on the needs of victims and
offenders, instead of satisfying abstract legal principles or punishing
the offender. Victims take an active role in the process, while
offenders are encouraged to take responsibility for their actions, "to
repair the harm they've done – by apologizing, returning stolen money,
or community service". It is based on a theory of justice that considers
crime and wrongdoing to be an offense against an individual or
community rather than the state. Restorative justice that fosters
dialogue between victim and offender shows the highest rates of victim
satisfaction and offender accountability.
Mixed theories
Some modern philosophers have argued that Utilitarian and Retributive theories are not mutually exclusive. For example, Andrew von Hirsch, in his 1976 book Doing Justice, suggested that we have a moral obligation to punish greater crimes more than lesser ones. However, so long as we adhere to that constraint then utilitarian ideals would play a significant secondary role.
Theories
Rawls' theory of justice
It has been argued that 'systematic' or 'programmatic' political and moral philosophy in the West begins, in Plato's Republic, with the question, 'What is Justice?' According to most contemporary theories of justice, justice is overwhelmingly important: John Rawls claims that "Justice is the first virtue of social institutions, as truth is of systems of thought." In classical approaches, evident from Plato through to Rawls,
the concept of 'justice' is always construed in logical or
'etymological' opposition to the concept of injustice. Such approaches
cite various examples of injustice, as problems which a theory of
justice must overcome. A number of post-World War II approaches do,
however, challenge that seemingly obvious dualism between those two
concepts. Justice can be thought of as distinct from benevolence, charity, prudence, mercy, generosity, or compassion, although these dimensions are regularly understood to also be interlinked. Justice is the concept of cardinal virtues, of which it is one. Metaphysical justice has often been associated with concepts of fate, reincarnation or Divine Providence,
i.e., with a life in accordance with a cosmic plan. The association of
justice with fairness is thus historically and culturally inalienable.
Equality
In
political theory, liberalism includes two traditional elements: liberty
and equality. Most contemporary theories of justice emphasize the
concept of equality, including Rawls' theory of justice as fairness. For
Ronald Dworkin, a complex notion of equality is the sovereign political
virtue.
Dworkin raises the question of whether society is under a duty of
justice to help those responsible for the fact that they need help.
Complications arise in distinguishing matters of choice and matters of
chance, as well as justice for future generations in the redistribution
of resources that he advocates.
Equality before the law
Law raises important and complex issues concerning equality, fairness, and justice. There is an old saying that 'All are equal before the law'. The belief in equality before the law is called legal egalitarianism. In criticism of this belief, the author Anatole France said in 1894, "In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread."
With this saying, France illustrated the fundamental shortcoming of a
theory of legal equality that remains blind to social inequality; the
same law applied to all may have disproportionately harmful effects on
the least powerful.
Relational justice
Relational
justice seeks to examine the connections between individuals and
focuses on their relations in societies, with respect to how these
relationships are established and configured. In a normative view, this
focus includes an understanding of what these relations should be. In a
political view, this focus includes the method of organizing persons in
society. Rawls’ theory of justice stakes out the task of justice as
equalizing the distribution of primary social goods to benefit the
worst-off in society. However, his distributive scheme, and other
distributive accounts of justice do not directly consider power
relations between and among individuals. Nor do they address such
political considerations as various structures of decision-making, such
as divisions of labor culture, or the construction of social meanings.
Even Rawls’ own basic value of self-respect cannot be said to be
amenable to distribution.
Iris Marion Young charges that distributive accounts of justice fail to
provide an adequate way of conceptualizing political justice in that
they fail to take into account many of the demands of ordinary life and
that a relational view of justice grounded upon understanding the
differences among social groups offers a better approach, one which
acknowledges unjust power relations among individuals, groups, and
institutional structures.
Young Kim also takes a relational approach to the question of justice,
but departs from Iris Marion Young’s political advocacy of group rights
and instead, he emphasizes the individual and moral aspects of justice.
As to its moral aspects, he argues that justice includes responsible
actions based on rational and autonomous moral agency, with the
individual as the proper bearer of rights and responsibilities.
Politically, he maintains that the proper context for justice is a form
of liberalism with the traditional elements of liberty and equality,
together with the concepts of diversity and tolerance.
Classical liberalism
Equality before the law is one of the basic principles of classical liberalism. Classical liberalism calls for equality before the law, not for equality of outcome. Classical liberalism opposes pursuing group rights at the expense of individual rights.
In addition to equality, individual liberty serves as a core notion of
classical liberalism. As to the liberty component, Isaiah Berlin
identifies positive and negative liberty in "Two Concepts of Liberty",
subscribing to a view of negative liberty, in the form of freedom from
governmental interference. He further extends the concept of negative
liberty in endorsing John Stuart Mills' harm principle: "the sole end
for which mankind are warranted, individually and collectively, in
interfering with the liberty of action of any of their number, is
self-protection", which represents a classical liberal view of liberty.
Religion and spirituality
Abrahamic justice
Jews, Christians, and Muslims traditionally believe that justice is a present, real, right, and, specifically, governing concept along with mercy, and that justice is ultimately derived from and held by God. According to the Bible, such institutions as the Mosaic Law were created by God to require the Israelites to live by and apply His standards of justice.
The Hebrew Bible describes God as saying about the Judeo-Christian patriarch Abraham:
"No, for I have chosen him, that he may charge his children and his
household after him to keep the way of the Lord by doing righteousness
and justice;...." (Genesis 18:19, NRSV). The Psalmist describes God as having "Righteousness and justice [as] the foundation of [His] throne;...." (Psalms 89:14, NRSV).
The New Testament also describes God and Jesus Christ as having and displaying justice, often in comparison with God displaying and supporting mercy (Matthew 5:7).
Theories of sentencing
In criminal law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime.
Laws may specify the range of penalties that can be imposed for various
offenses, and sentencing guidelines sometimes regulate what punishment
within those ranges can be imposed given a certain set of offense and
offender characteristics. The most common purposes of sentencing in legal theory are:
| Theory
|
Aim of theory
|
Suitable punishment
|
| Retribution
|
Punishment imposed for no reason other than an offense being committed, on the basis that if proportionate, punishment is morally acceptable as a response that satisfies the aggrieved party, their intimates and society.
|
- Tariff sentences
- Sentence must be proportionate to the crime
|
| Deterrence
|
- To the individual – the individual is deterred through fear of further punishment.
- To the general public – Potential offenders warned as to likely punishment
|
- Prison Sentence
- Heavy Fine
- Long sentence as an example to others
|
| Rehabilitation
|
To reform the offender's behavior
|
- Individualized sentences
- Community service orders
- moral education
- vocational education
|
| Incapacitation
|
Offender is made incapable of committing further crime to protect society at large from crime
|
- Long prison sentence
- Electronic tagging
- Banning orders
|
| Reparation
|
Repayment to victim(s) or to community
|
- Compensation
- Unpaid work
- Reparation Schemes
|
| Denunciation
|
Society expressing its disapproval reinforcing moral boundaries
|
- Reflects blameworthiness of offense
- punishment in public
- punishment reported to public
|
In civil cases the decision is usually known as a verdict, or judgment, rather than a sentence. Civil cases are settled primarily by means of monetary compensation for harm done ("damages") and orders intended to prevent future harm (for example injunctions).
Under some legal systems an award of damages involves some scope for
retribution, denunciation and deterrence, by means of additional
categories of damages beyond simple compensation, covering a punitive effect, social disapprobation, and potentially, deterrence, and occasionally disgorgement (forfeit of any gain, even if no loss was caused to the other party).
Evolutionary perspectives
Evolutionary ethics and an argued evolution of morality suggest evolutionary bases for the concept of justice. Biosocial criminology
research argues that human perceptions of what is appropriate criminal
justice are based on how to respond to crimes in the ancestral
small-group environment and that these responses may not always be
appropriate for today's societies.
Reactions to fairness
‘'Justitia'’, copper engraving by
Jost Amman, made between 1539 and 1591
Studies at UCLA
in 2008 have indicated that reactions to fairness are "wired" into the
brain and that, "Fairness is activating the same part of the brain that
responds to food in rats... This is consistent with the notion that
being treated fairly satisfies a basic need". Research conducted in 2003 at Emory University involving capuchin monkeys demonstrated that other cooperative animals also possess such a sense and that "inequity aversion may not be uniquely human".
Institutions and justice
Allegory of Justice. Ceiling of galleria del Poccetti in the Palazzo Pitti (Florence)
In a world where people are interconnected but they disagree,
institutions are required to instantiate ideals of justice. These
institutions may be justified by their approximate instantiation of
justice, or they may be deeply unjust when compared with ideal
standards – consider the institution of slavery.
Justice is an ideal the world fails to live up to, sometimes due to
deliberate opposition to justice despite understanding, which could be
disastrous. The question of institutive justice raises issues of legitimacy, procedure, codification and interpretation, which are considered by legal theorists and by philosophers of law. The United Nations Sustainable Development Goal 16 emphasizes the need for strong institutions in order to uphold justice.
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