Philosophy Of Justice Research Paper

Justice is predicated mainly of three kinds of iudicanda, namely subjects ( persons and collectivities), the conduct of subjects (actions and omissions: decisions, accusations, policies, wars, etc.), and social rules (e.g., social institutions, laws, conventions, practices, economic arrangements, educational and health-care systems). In recent decades, discussion has focused on the justice of social rules (i.e., on social justice).

Justice is often differentiated by theme. Thus distributive justice governs the assignment of benefits and burdens (e.g., rights, duties, property, income, taxes), commutative justice governs economic exchanges, while corrective and retributive justice govern, respectively, compensating the victims and punishing the perpetrators of prior wrongdoing. International justice is typically viewed as a separate area, in which the four mentioned themes are overshadowed by reflections on the just use of force. Just war theories are generally organized around two themes: just cause in going to war (ius ad bellum) and just ways of fighting a war (ius in bello). 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; Kant 1996, § 58).

The manifest complexity of the notion of justice makes it doubtful that any unified account of justice can be adequate across iudicanda and themes. In response to such doubts, it is tempting, as numerous historical examples attest, to simplify matters through reductionist moves. One such move, prominent among deontological conceptions of ethics, is to reduce judgments of character to judgments of conduct, e.g., by holding that a just subject is one stably disposed toward just conduct, independently defined. (One may object that the justice of subjects is in part a function also of their inner states: of their feelings and attitudes in the case of individuals and of their internal mode of organization in the case of organized collectivities. Thus, the city-state of Athens may be called unjust not merely on account of its unjust conduct toward Socrates and the Melians, but also on account of the injustice of its social rules, which severely disadvantaged women, metics, and slaves.) Following Aristotle, some conceptions of ethics have proposed the reverse: to reduce judgments about conduct to judgments about the character, or virtues, of subjects. Just conduct is then conduct a just agent might engage in. (One difficulty here is that, to avoid circularity, the virtue of justice must not be characterized in conduct terms.) Locke and Nozick have proposed a third kind of reduction: that social rules are just if and only if they were, or at least could have been, established through just conduct. Conversely, Rawls has suggested that persons and conduct are just when they support and follow just social rules that apply to them and help establish just social rules insofar as such are still lacking (Rawls 1971, pp. 115, 334).

Other reductionist attempts seek to reduce judgments about various kinds of iudicanda to judgments about states of affairs. One simple consequentialist reduction of this sort holds that subjects, conduct, and social rules are just in proportion to their tendency to promote the overall goodness of the world (or of that part of the world to which they have a special responsibility). A more complex such reduction, of judgments about social institutions to judgments about distributions (Rawls), is discussed below.

While it is quite possible to embed some such reductions within a theory of justice, their plausibility still depends on the overall plausibility of this theory, which in turn depends on whether the evaluative and normative judgments derivable from it are morally sound. So far no detailed theory of justice, reductionist or otherwise, has managed to cover several themes and kinds of iudicanda in a plausible way. And contemporary writers have therefore tried, more modestly, to develop limited conceptions of justice. The paradigmatic effort in this vein (Rawls 1971), is focused narrowly on how distributive justice might be instantiated in the most important and pervasive rules (‘basic structure’) of a self-contained society.

1. The Theory Of John Rawls

A criterion of justice should entail plausible absolute and comparative judgments about feasible basic structures, actual or proposed. Rawls seeks a criterion that, in addition, facilitates agreement among citizens accepting it on how to maintain or reform their shared basic structure. This second desideratum speaks against any criterion that, like the principle of utility, is too difficult to apply and hence too easily abused. Rawls seeks the morally best public criterion of social justice.

His central idea is to answer this moral question through a prudential one: morally best is that public criterion of justice which prospective citizens would choose on prudential grounds. The criterion and the basic structures based on it should be as good as possible for the persons living under them; nothing else need be considered. This central thesis is, of course, itself a moral claim—to be developed and examined in what follows.

Citizen’s interests and preferences vary and are shaped by the actual basic structure of their society. For his prudential question to have a determinate answer, Rawls needs therefore a vantage point that attains some independence from the status quo and also ensures agreement. This vantage point is the original position—an imagined deliberation among ‘parties’ who, acting in the interest of prospective citizens, are to agree on a public criterion of justice without knowing (due to a ‘veil of ignorance’) the distinguishing features (creeds, values, tastes, desires, and endowments) of their clients or even the natural and historical context of their clients’ society.

To have grounds for deliberation, the parties need some information about the interests of their clients. Rawls makes them assume that all clients have three interests, which he portrays as closely connected to their role as citizens in a democratic society (and hence as not biased toward any particular religious, philosophical, or ethical world-view or way of life). Rawls calls these the three higher-order interests, suggesting both that they are interests in the content and fulfillment of other interests (like second-order desires are desires about desires) and also that they are deep, stable, and normally decisive. These interests are (a) to develop and exercise a sense of justice, which involves a sincere allegiance to some conception of justice (whose content remains unspecified so as not to prejudge the parties’ decision), (b) to develop and exercise the capacity to form, to pursue, and rationally to revise a conception of the good, and (c) to protect and advance one’s particular conception of the good (Rawls 1993, pp. 19, 74). The main question in the original position is then: which social order—consisting of a public criterion of justice and of the basic structures this criterion would actually bring forth in various alternative contexts—affords the best prospects for higher-order interest fulfillment?

Rawls makes the dramatic claim that the parties would, because of their severely limited information, make their choice pursuant to the maximin rule, seeking to optimize the worst social position that the public acceptance of their criterion might generate. They would examine candidate criteria of justice, asking of each how badly off, in terms of the three higher-order interests, persons might come to be in societies in which it is the accepted public criterion of justice. And they would prefer the criterion that promises the higher floor (maximum minimorum), even if it would also lead to a much lower ceiling or lower average.

Rawls argues that the parties would then choose a criterion of justice formulated in terms of certain social primary goods, such as rights and liberties, income and wealth. Access to these all-purpose means is not only a good proxy for, but also much easier to measure than, higher-order interest fulfillment, which enhances the criterion’s capacity to foster agreement on institutional design. Rawls claims then that the parties would choose these two principles as the public criterion (Rawls 1993, pp. 5f ):

First principle. ‘Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.’

Second principle. ‘Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity [the opportunity principle]; and second, they are to be to the greatest benefit of the least advantaged members of society [the difference principle].’

The first principle is to have lexical priority over the second and, within the second, the opportunity principle is to have lexical priority over the difference principle (Rawls 1971, pp. 302f ). ‘Lexical’ is short for ‘lexicographical’ and thus invokes how words are arranged alphabetically, giving priority to the first letter over the second, to the second over the third, and so on. Rawls conceives priorities among principles accordingly: in the comparison of alternative feasible basic structures, a superiority in terms of a lexically prior principle overrides any inferiority in terms of lexically subordinate ones.

The proposed public criterion of justice requires, then, that a society’s basic structure be arranged so as to secure, above all, the basic liberties. These include the political liberties, freedom of thought and liberty of conscience, freedom of association, freedom and integrity of the person (including freedom of movement and the freedom to hold personal property), and the rights and freedoms included in the rule of law. Except in the case of the political liberties, the first principle does not require that citizens have sufficient means to take full advantage of their basic liberties; the distribution of such means (e.g., income and wealth) is governed by the second principle. Yet it does require more than legal recognition: citizens must have secure access to their freedoms; attempts to disturb their enjoyment or exercise must be effectively prevented and deterred.

The second principle addresses the social and economic aspects of basic structures. The opportunity principle requires that persons have roughly equal chances of success irrespective of their initial (parental) socioeconomic position. The difference principle requires that rules affecting socioeconomic inequalities (in particular, the tax system) be designed so as to optimize the worst socioeconomic position. Existing poverty is justified if, and only if, no institutional reform decreasing or increasing inequality would raise the lowest socioeconomic position.

2. The Bias Toward Recipient-Oriented Theorizing

While Rawls’s theory has received much criticism, it has also in the last 30 years shaped the debate about justice and, most importantly, the prevailing understanding of the concept of justice. There is little awareness now of the distinctive features of, or alternatives to, the specific concept of justice employed by Rawls and his many critics and defenders.

While the word ‘just’ can, and often does, function as a one-place predicate, the concept of justice (like the concept of mother) essentially involves a second place: to be unjust is to be unjust to someone; A is just or unjust to B, to certain recipients.

The idea of recipients, of those who have justice claims on a particular iudicandum, invokes the questions what their claims on the iudicandum are, what these recipients have and do not have, and what they ought to have or not to have. The concept of justice essentially involves then also a third place for relevant goods and ills, broadly conceived: A is just or unjust to B by affecting whether and to what extent B has C. (As the category of conduct includes omissions, so the category of goods and ills includes the null-case of receiving nothing, being denied a good or being spared an ill.) For B to suffer an injustice, there must be goods or ills that B either has-but-should-not-have or lacksbut-should-have.

The concept of justice as explicated thus far—fundamentally a three-place concept, with frequent but derivative one-place and two-place employments— frames current discussions of justice. According to it, justice is a feature of certain iudicanda, which depends on their effects on the distribution of certain goods and ills to or among their recipients. One might call this the passive concept of justice, because it directs moral attention to those by whom justice and injustice are suffered. Employing this passive concept, one will focus on a iudicandum’s effects on its recipients— specifically on its impact on what these recipients are able to have or to be (relative to what they ought to be able to have or to be). One will consider a iudicandum just in proportion to its impact on the moral quality of the distribution of relevant goods and ills among its recipients: To be just is to promote good distributions. The passive concept thus leads easily to a conception of justice as distributional; and much of the current justice literature is indeed about how to code and rank distributions.

This framing of the debate may well be a remnant of long-dominant consequentialist, especially utilitarian, theorizing (Bentham, Mill, Sidgwick), which Rawls has superficially done so much to displace. The central consequentialist idea is that subjects, conduct, or social rules should be assessed solely by their effects on how well the world goes. Most current theorizing about justice involves the closely related thought that the justice of subjects, conduct, or social rules should be assessed by their effects on the moral quality of the overall distribution of goods and ills among the iudicandum’s recipients. In both cases, the interest in outcomes is indirect. How well the world goes is of little practical interest in itself, but can be of great practical interest if one judges the moral quality of subjects, conduct, or social rules by their impact on how well the world goes. Similarly, the moral quality of overall distributions is of little practical interest in itself, but can be of great practical interest if one judges the justice of subjects, conduct, or social rules by their impact on the moral quality of distributions.

Does it make sense to take distributions as the most basic iudicanda and then to judge the justice of subjects, conduct, or social rules by their distributional effects? With respect to subjects and their conduct, this mode of assessment is widely rejected. Among the timeworn staples of ethics classes are gruesome organ redistribution stories designed to elicit the response that it is not true that subjects and conduct that aim at or produce the best overall distributions are always just. Abstractly considered, a situation in which everyone has at least one eye and one kidney is surely morally better than (an otherwise similar) one in which some, through no fault of their own, have no functioning eye or kidney while many others have two. But redistributive conduct and subjects aiming at such an abstractly better distribution are nevertheless considered gravely unjust.

With respect to subjects and their conduct, cases of this sort may be used to draw the conclusion that we ought to distinguish between treating recipients justly and promoting a good distribution among recipients and, more generally, between how subjects treat their recipients and what impact they have on them. The moral significance of this distinction can be illustrated with matched doing allowing scenarios such as the following: in Scenario One, Art has two functioning kidneys and Sue has none; we must decide whether to give one of Art’s kidneys to Sue. In Scenario Two, Art has one functioning kidney and Sue has none; we must decide whether to give a donated kidney to Art or to Sue. (Other things are presumed equal across scenarios, with both Art and Sue urgently wanting the kidney in question.) In terms of their distributional effects, the two decisions are on a par: in each scenario, we decide whether the final distribution of kidneys will be 2: 0 or 1: 1; and a decision in Sue’s favor is then in both scenarios equally promoting of a good distribution. Intuitively, however, the scenarios differ dramatically: a decision for Sue treats Art unjustly in One but not in Two and a decision for Art treats Sue unjustly in Two but not in One.

With respect to social rules, a similar distinction seems called for, and for similar reasons. Just social rules for allocating donated kidneys favor those who, through no fault of their own, have no functioning kidney over those who have one, and thereby promote a better distribution of kidneys. But just social rules do not mandate the forced redistribution of kidneys from those who have two to those who have none, though doing so would likewise promote a better distribution of kidneys. Once again, treating recipients justly does not boil down to promoting the best distribution— what matters is how social rules treat their recipients, not merely what their effects on them are.

This distinction has been remarkably neglected in current work on social justice. It is not surprising that it plays no role in consequentialist theorizing, which is committed to the view that social rules should be judged by their effects on the overall outcome, irrespective of how they produce these effects. Remarkable is that Rawls’ theory, which he bills as a deontological alternative, likewise makes the justice of social rules depend exclusively on the overall distribution they tend to produce. Rawls assigns no moral relevance to how basic structures affect the overall distribution of goods and ills. And he is followed in this by most of his critics.

At least this decision is clearly built into the centerpiece of Rawls’s theory: ‘the persons in the original position try to acknowledge principles which advance their systems of ends as far as possible. They do this by attempting to win for themselves the highest index of primary social goods, since this enables them to promote their conception of the good most effectively whatever it turns out to be. The parties … strive for as high an absolute score as possible’ (Rawls 1971, p. 144). By judging social orders in this purely recipient-oriented way, Rawls ensures from the start that they are judged exclusively by their ‘output’ in terms of what overall distributions they generate among their participants—without regard to how they may bring it about that particular social goods or ills end up with particular persons. While Rawls differs from utilitarians in regard to how distributions should be coded and assessed—fulfillment of higher-order interests rather than happiness, maximin rather than sum-ranking or averaging—he shares with them the purely recipient-oriented mode of theorizing about justice.

Consistently followed, this approach should lead Rawls to embrace strong compensation requirements with regard to natural handicaps. It is evident that the extent to which a person’s higher-order interests (especially the third) are fulfilled depends not merely on her share of social goods but also on her natural endowments. Someone genetically predisposed toward good health, cheerfulness, intelligence, and good looks is better able to advance her conception of the good than someone genetically predisposed toward sickliness, melancholy, low intelligence, and ugliness. How, if at all, would the parties take account of this fact? Even leaving aside genetic modifications, the parties can still raise the floor of higher-order interest fulfillment by formulating a criterion of justice that takes account of the natural distribution—by requiring basic structures to favor the naturally disfavored in the distribution of social goods and ills insofar as doing so raises the floor (by ensuring that no one is very badly off in terms of both natural and social goods).

These considerations notwithstanding, Rawls claims that his parties would adopt a criterion of justice that assesses each basic structure solely on the basis of the distribution of social primary goods it produces: ‘a hypothetical initial arrangement in which all the social primary goods are equally distributed … provides a benchmark for judging improvements’ (Rawls 1971, p. 62). The two principles do not take into account natural primary goods, such as ‘health and vigor, intelligence and imagination’ (Rawls 1971, p. 62): ‘The natural distribution is neither just nor unjust’ (Rawls 1971, p. 102).

How might one react to Rawls’ apparent inconsistency? First, one might reject and revise his exclusive emphasis on the distribution of social goods and ills. In this vein Amartya Sen has argued that, since natural differences among persons evidently affect their quality of life, we should focus on the distribution not of social primary goods but of capabilities. How badly off someone is depends on her access to being well-nourished, adequately clothed and sheltered, etc., which, in turn, depends not merely on her income, but also on her physiology as well as on the climate and culture she confronts. To this critique, Rawls has responded that he had, for purposes of a first approximation, chosen to leave severe natural handicaps and disabilities aside and that the remaining natural disadvantages—Sen had mentioned differential caloric and textile needs—are so minor that their accommodation within a criterion of justice is not worth the cost in terms of increased complexity and consequent divisiveness. But this response is unconvincing: even ordinary natural handicaps—such as ugliness or a tendency toward melancholy and depression—can be quite devastating. And even if severe natural handicaps of mind and body can be ignored in a first approximation, they cannot be left aside in the final version of a theory that is to serve as a public standard by reference to which citizens shape and reform their society’s basic structure.

Second, one might defend Rawls by arguing that natural inequalities are of little importance to a person’s true quality of life: her ability to fulfill her higher-order interests. This response is also unpromising. Innate mental disabilities, resulting in low intelligence or an inability to concentrate, can surely undermine a person’s capacity to understand and apply a conception of justice as well as her capacity to form, to revise, and rationally to pursue a conception of the good. Such disabilities, and genetically based ugliness and melancholy as well, surely also affect profoundly a person’s success in advancing her particular conception of the good.

Following Rawls’ proposed criterion of justice at the expense of his purely recipient-oriented machinery for deriving this criterion, one might thirdly argue that the distribution of natural goods and ills, however important to persons, is irrelevant to the assessment of basic structures, which should be based exclusively on the distribution of social goods and ills each generates: the task of social rules is to do justice to, or to treat justly, all those whose lives are regulated by this order. This requires a just allocation of the benefits and burdens of social cooperation, not promotion of the best attainable distribution of all (social and natural) goods and ills that may be relevant to higher-order interest fulfillment or quality of life. Natural inequalities precede social rules, so to speak, as persons already have their genetic endowments and handicaps when they enter society. A just basic structure should not then make the naturally favored subsidize the naturally disfavored any more than a just parent or administrator or civil judge should seek to allocate benefits and burdens under her control so as to even out natural inequalities. This view faces the difficulty of drawing precisely enough the distinction between social and natural inequalities, to which it gives so much moral significance. It is not clear how one can, without considerable arbitrariness, measure the extent to which a given disease or inequality in earning power is due to genetic and to social factors. Taken strictly, this view would moreover lead to the controversial conclusion that there is nothing unjust about a society that has a just economic system but then leaves the allocation of medical care (as well as of the means of mitigating melancholy, homeliness, low native intelligence, etc.) entirely to the market.

3. Toward A More Adequate Theory

A fourth option is to develop a conception of social justice that neither (like the two principles) ignores natural goods and ills nor (as the original position would suggest) takes account of them on a par with social goods and ills. The key idea is that a criterion of social justice must be sensitive not merely to the intrinsic features of goods and ills (such as their kind, magnitude, and frequency), which make them relevant to the recipients’ quality of life, but also to an extrinsic feature, namely to the way in which their distribution is affected by social rules. Such a criterion must take account of—and its application thus requires information about—the particular relation between social rules and human quality of life, which may affect whether some institutionally avoidable shortfall is an injustice at all and, if so, how great an injustice it is.

The intuitive moral significance of this relational feature can be shown by distinguishing, in a preliminary way, six ways in which a social order may affect the goods and ills of its recipients. The following illustration uses six different scenarios, arranged in order of their intuitive moral significance, in which, due to social rules, certain innocent persons are avoidably deprived of some vital nutrients V (the vitamins contained in fresh fruit, say). First-class shortfalls are officially mandated, paradigmatically by the law (legal restrictions prevent certain persons from buying foodstuffs containing V). Second-class shortfalls arise from legally authorized conduct of private subjects (sellers of foodstuffs containing V lawfully refuse to sell to certain persons). Third-class shortfalls are foreseeably engendered through the uncoordinated conduct of subjects under rules that do not specifically mention them (certain persons, suffering severe poverty within an ill-conceived economic order, cannot afford to buy foodstuffs containing V). Fourth-class shortfalls arise from private conduct that is legally prohibited but generally tolerated (sellers of foodstuffs containing V illegally refuse to sell to certain persons, but enforcement is lax and penalties are mild). Fifthclass shortfalls arise from natural factors whose effects social rules avoidably leave unmitigated (certain persons are unable to metabolize V due to a treatable genetic defect but are not receiving the treatment that would correct their handicap). Sixth-class shortfalls, finally, arise from self-caused factors whose effects social rules avoidably leave unmitigated (certain persons are unable to metabolize V due to a treatable self-caused disease—brought on, perhaps, by their maintaining a long-term smoking habit in full knowledge of the medical dangers associated therewith—and are not receiving the treatment that would correct their ailment).

Even without all necessary qualifications and refinements, this list makes clear that it is highly relevant to the justice of social rules how they affect the distribution of goods and ills, that it is no more true of social rules than of subjects and conduct that they are just if and insofar as they promote a good overall distribution. How can the moral significance of this relational feature be explained? Social rules are not merely imposed on people (the ‘recipients’), but also imposed by people. Purely recipient-oriented theorizing ignores these imposers of social rules; and the passive concept of justice has no place for them. Once the assessment of social rules takes account of both recipients and imposers, the sought explanation is at hand: social rules that cause harms by mandating them are more unjust than social rules that engender (equally frequent and severe) harms through overly mild penalties and lax enforcement, because they reflect a different attitude on the part of their imposers. The first injustice is close to the negative-duty end of the spectrum (bringing harm about), while the second injustice is closer to the positive-duty end (letting harm happen).

This hypothesis also explains why justice does not require social rules that mandate beatings whenever the total number of beatings is thereby reduced—and why it may ( pace Rawls 1971, Chap. 4) oppose official restrictions of basic liberties which, by making other such liberties more secure, enhance citizens’ freedom overall. Rawls must count official and private threats to basic liberties on a par: from the prudential perspective of prospective citizens, it is no worse for one’s basic liberties to be threatened by laws or government agents than for them to be equally threatened by zealots, criminals, or drunk drivers (cp. Rawls 1971, p. 242). Here Rawls collides with the widely held belief that official violations are morally more significant, so that, for example, a society should not allow its government to restrict the basic liberties of (some) citizens whenever doing so will prevent greater threats to basic liberties by private actors. ‘Reforms’ that weaken constraints on policing or introduce lower standards of evidence or disproportionate punishments (e.g., the death penalty for recidivist drunk drivers) are not thought to accord with justice merely because risks to citizens are reduced on balance.

This diagnosis suggests that a genuine alternative to purely recipient-oriented theorizing can be facilitated by developing a more active concept of justice, one that includes a fourth essential place for (what one might call) the agents of justice, for those who have or share moral responsibility for the justice or injustice of the iudicandum. Pursuant to this alternative concept, the injustice of any iudicandum presupposes some agent(s), D, responsible for its injustice or for making it (more) just. Calling this the active concept of justice alludes to its diverting some attention from those who suffer justice and injustice to those who produce them.

While the passive concept easily leads to a conception of justice as distributional, the active concept suggests a conception of justice as relational, as involving a relation between particular agents and recipients mediated through a iudicandum. By drawing attention to what we owe one another (see Scanlon 1999), to each agent’s specific responsibilities for particular iudicanda and, through them, to their particular recipients, the active concept leads away from the idea that a concern for the justice of a iudicandum is simply a concern for its promoting a good distribution among its recipients. Rather than tie justice to an outcome and thus view it as something that obtains to a greater or lesser extent (what would justice be like, what ought recipients to be able to have or to be?), the active concept presents justice as something that is done to a greater or lesser extent: by particular agents, through a iudicandum, to particular recipients.

To conclude, unjust subjects, conduct, and social rules involve victims unjustly harmed by them. But it does not follow that the magnitude of the injustice is a function of the magnitude of these harms. It may also depend on how these harms are produced. The active concept of justice invites sensitivity to such relational factors. In regard to social rules, such sensitivity can take the form of a scalar version of the familiar distinction between negative and positive duties. Such a scale is needed to weight the harms rules produce by the way in which they produce them (mandate, authorize, engender, …). A similar such scale is needed to gauge the degree to which different agents contribute to imposing unjust rules. Moral responsibility for the justice of some iudicandum may vary from agent to agent. So there may be competition among iudicanda—one may have responsibilities with regard to achieving and maintaining the justice of several iudicanda and one may then have to decide how much of an effort one ought to make with regard to each. These issues concerning responsibilities and their prioritization are crucial for giving justice a determinate role in the real world. And they tend to be overlooked from the start, or grossly oversimplified through a generic duty to promote just iudicanda, when the topic is approached in terms of the concept of passive justice.

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