Justice

Louis P. Pojman

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781315507712
• Edition: 1
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

Written by a group of distinguished philosophers, the Foundations of Philosophy Series aims to exhibit some of the main problems in the various fields of philosophy at the present stage of philosophical inquiry. This book is written from the viewpoint that although justice is the most important concept in political philosophy, it is also one of the most contested concepts in philosophy. Coverage begins with an overview of the concept of justice, arguing that justice is a vital part of political philosophy, which in turn is part of moral philosophy. The book outlines an objectivist view of moral philosophy, which holds that moral principles have universal validity. The material presents a philosophical map to navigate the plethora of confusing, competing theories and concepts regarding the importance of justice. The author distinguishes between formal and material concepts of justice and discusses the related issues of comparative/noncomparative justice and distributive versus commutative justice.

CHAPTER 1



Introduction

Justice, [Aristotle] said, consists in treating equals equally and unequals unequally, but in proportion to their relevant differences. This involves, first, the idea of impartiality…. Impartiality implies a kind of equality—not that all cases should be treated alike but that the onus rests on whoever would treat them differently to distinguish them in relevant ways. … That is what is really meant by the right to equal consideration—to be treated alike unless relevant differences have been proved.

(Stanley Benn, Encyclopedia of Philosophy)

It is only from the selfishness and confined generosity of men, along with the scanty provision nature has made for his wants, that justice derives its origin.

(David Hume, A Treatise of Human Nature, Oxford University Press, 1739)

The Circumstances of Justice

Problems of justice arise, as David Hume pointed out over two centuries ago, when in situations of scarcity we, creatures of limited sympathies, seek to adjudicate between competing claims for limited goods.¹ Hume refers to this as the “circumstances of justice.” If either we were complete altruists or if goods were unlimited, questions of justice would not arise. If we had unlimited sympathies, property would not exist, and no distinctions between mine and thine would obtain. If you needed the house I built, I would share it with you or move out. If your child needed the food in my garden, she would be free to take it, and similarly, my child would help himself to the food you had grown. Likewise, if there were unlimited resources, we would not worry about distribution of goods. If you wanted a car like mine, you would pick one out from the innumerable ones readily available. No competition for jobs or resources would be necessary, because there would be plenty of everything for everyone. This may be a description of heaven, but it is not our world. Neither ideal condition obtains. We are not complete altruists, nor are resources unlimited, but the very opposite. Consider this example: Suppose one hundred candidates apply for a highly desirable position (e.g., quarterback for a professional football team, university professorship, position of chief surgeon in a medical center, airline pilot or CEO), but only one position is available. What are the correct moral and legal criteria by which to decide who should get the job? Should the selection be based on merit, individual need, utility, previous effort, likely contribution to be made, or should the decision be left to market forces, giving the hiring group complete discretion in making its choice? Should race, ethnicity and gender be taken into consideration? If in the past blacks and women or the disabled have been systematically discriminated against, should affirmative action programs engaging in reverse discrimination be utilized, showing favor to less qualified women and blacks over more qualified white males (who themselves, though innocent of wrongdoing, may have profited from past favoritism)? Or consider the use of kidney dialysis machines in a county hospital that can afford only 5 machines, but has a waiting list of 20 or 30 people. How should we decide which five should be treated? by lottery? by a process of first come-first served? by greatest need? by merit? by desert? by utility? (For example, one of the candidates is the mayor of one of the towns 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? Should equal work be rewarded with equal pay, or should the matter be left entirely to the discretion of the employer or what the market will bear?

The most significant and debated issue in the debate over distributive justice is that of economic justice. There are great discrepancies between the rich and poor. What, if anything, should we do about them? Consider the 18th century Utilitarian, William Paley’s Parable of the Pigeons:

If you should see a flock of pigeons in a field of corn and if (instead of each pecking where, and what it liked, taking just as much as it wanted, and no more) you should see ninety-nine of them gathering all they got into a heap; reserving nothing for themselves, but the chaff and refuse; keeping this heap for one, and that the weakest perhaps and worst pigeon of the flock; sitting round, and looking on, all the winter, while this one was devouring, throwing about and wasting it; and, if a pigeon more hardy or hungry than the rest, touched a grain of the hoard, all the others instantly flying upon it, and tearing it to pieces; if you should see this, you would see nothing more, than what is every day practiced and established among men. Among men you see the ninety and nine, toiling and scraping together a heap of superfluities for one; getting nothing for themselves all the while, but a little of the coarsest of the provisions; and this one too, often the feeblest and worst of the whole set, a child, a woman, a madman, or a fool; looking quietly on, while they see the fruits of all their labor spent or spoiled; and if one of them take or touch a particle of it, the others join against him, and hang him for the theft.²

The Allegory of Paley’s Pigeons seems to be exemplified in modern society. Professional athletes and entertainers often make millions of dollars a year, more than school teachers or nurses will make in a lifetime of dedicated service. The highest paid federal employee is not the president of the United States or the chairman of the joint Chiefs of Staff, but the football coach of the Air Force Academy. Football players and coaches make more than Supreme Court justices or the president of the United States. What may be even more galling are the idle rich, who have inherited great fortunes and live in the lap of luxury, while the poor don’t have enough to eat or adequate shelter. It is not just the enormous gap between rich and poor that upsets many of us, but the lack of social responsibility manifest by Paley’s contemporary pigeons as they flaunt their jewelry, fast cars, and Beverly Hills mansions.

We may ask, then, Is something unjust about the discrepancy between the salaries of baseball stars and public school teachers? Which vocation is more important for society, being a baseball player or a teacher? If the nurturing and education of children is a higher priority than professional football or baseball, does justice require that this fact be reflected in our economic rewards?

Justice and Moral Philosophy

Over two millennia ago Plato in The Republic asked, “What is Justice?” This question in his classical treatise inaugurated the discipline of political philosophy in which the question of justice still remains the fundamental question.

Justice is part of normative Political Philosophy, which in turn is part of Moral Philosophy. It is significant that the same Greek word, dikaiosune, which Plato uses for “justice” also means “morally righteous.” Moral Philosophy has certain constituent features that include universality, prescriptivity, and impartiality. (1) The principle of universality states that morality is universal, applying to all people everywhere. A core set of principles are binding on every human being regardless of culture, race, or gender. Perhaps there are some moral rules specific to culture, rules that moral philosophy would judge as optional, but a core set seems constitutive of every human society, principles such as respecting human life, safeguarding individual freedom, protecting property, not causing unnecessary suffering, and promise keeping.³ Justice seems to have an objective core; however, like all moral principles it differs in its contextual application. Law is the institutional product of morality, an attempt to codify morality in a system of general rules that are enforced and surrounded with sanctions, but there can be unjust and immoral laws, such as laws promoting slavery and oppression of women. If ethical relativism were true, the phrase immoral law would be an oxymoron (a contradiction in terms) since morality just is what the culture decides. But it is more reasonable to hold that an objective, universal morality does exist and underlies ideal law.

(2) The principle of prescriptivity means that moral principles are not merely descriptions of states of affairs in the world, but are normative. They tell us what ought to be the case, even if it is not likely that such an ideal will be realized.

(3) The principle of impartiality or universalizability, is purely formal (see below under formal justice) and tells us that whatever principles we adopt, they must be applied impartially, without regard to accidental features, such as race, gender, religion, or social or economic class. As Stanley Benn writes, “Impartiality implies a kind of equality—not that all cases should be treated alike but that the onus rests on whoever would treat them differently to distinguish them in relevant ways.” (See the epigraph at the head of this chapter.) Impartiality is often confused with neutrality, but they are opposites. Consider a football game, say between arch rivals such as the University of Notre Dame and the University of Michigan. The peanut vendor from California, who hates football and couldn’t care less who wins the game is neutral between the teams. The fans are the paradigm of partiality, rooting for their teams like religious fanatics. But the paradigm of impartiality is the umpire, who knowing his wife has just bet their pension funds on the underdog, still manages to call a fair game, making correct calls even in relatively ambiguous situations. Impartiality is not neutrality or indifference. It is, rather, making judgments according to rules. As such, morality involves taking sides in disputes, doing so according to the approved set of rules. These rules may include special obligations, giving special consideration to one’s family and friends, to whom we have special relations. Justice as impartiality requires that professionals, such as physicians and lawyers, serve their clients whether or not they like them, treating them according to the rules of the profession, not according to their race, religion, facial appearance, or family background.

These are the main formal features of morality. There are probably others, but they are more controversial, such as publicity and practicality (ought implies can), but the three described seem most central.

To sum up, morality, in part at least, must be objectively valid, applying to all people everywhere; otherwise we could not discuss justice as a universal concept, but simply speak of it as relative only to a given society. Here is one example that illustrates the difference that one’s view of the universality of morality makes. It is the case of a girl from Mali, named Seba. Here is her story:

I was raised by my grandmother in Mali, and when I was still a little girl a woman my family knew came and asked her if she could take me to Paris to care for her children. She told my grandmother that she would put me in school, and that I would learn French. But when I came to Paris I was not sent to school. I had to work every day. In her house I did all the work; I cleaned the house, cooked the meals, cared for the children, and washed and fed the baby. Every day I started work before 7 AM and finished about 11 PM; I never had a day off. My mistress did nothing; she slept late and then watched television or went out.

One day I told her that I wanted to go to school. She replied that she had not brought me to France to go to school but to take care of her children. I was so tired and run down. I had problems with my teeth; sometimes my cheek would swell and the pain would be terrible. Sometimes I had stomachaches, but when I was ill I still had to work. Sometimes when I was in pain I would cry, but my mistress would shout at me.

… She would often beat me. She would slap me all the time. She beat me with a broom, with kitchen tools, or whipped me with electric cable. Sometimes I would bleed; I still have marks on my body.

Once in 1992, I was late going to get the children from school; my mistress and her husband were furious with me and beat me and then threw me out on the street. I didn’t understand anything, and I wandered on the street. After some time her husband found me and took me back to the house. There they stripped me naked, tied my hands behind my back, and began to whip me with a wire attached to a broomstick. Both of them were beating me at the same time. I was bleeding a lot and screaming, but they continued to beat me. Then she rubbed chili pepper into my wounds and stuck it in my vagina. I lost consciousness.⁴

Surely, this case of modern slavery is an instance of injustice. Seba was treated with malicious cruelty. What happened to Seba should not happen to a dog, let alone a little girl. It is morally wrong, even if the people who enslaved Seba believed what they were doing was morally permissible. You can be sincere but mistaken. It is immoral to cause unnecessary suffering; furthermore, it is not only immoral, but a specific type of immorality. It is unjust. Put yourself in Seba’s shoes. Would you like to be treated this way?

If, as I have suggested above, morality is universally objective, and respecting liberty is one constitutive feature of morality, then slavery such as endured by Seba is wrong, whether or not a culture approves of it.⁵

Justice is a moral-political value, but it is not the only moral-political value. Liberty, integrity, benevolence, and utility are also political values with a moral core. Liberty is valuable since we all value freedom as one of the necessary conditions for a good life. People like Seba, who live as virtual slaves, cannot live an adequately fulfilled life; they cannot exercise autonomy. We want to live our lives in our own way, in a manner that seems best to us. We prize freedom of thought, freedom of movement, freedom of speech, and freedom of worship as fundamental to a well-organized state. Similarly, we value utility. A society and state ought to promote a high total and average level of welfare or utility. Under utility is the concept of efficiency. We want effective and efficient institutions. A program that generally meets needs, generally renders justice and welfare, but takes forever to do so, is defective. We deserve better.

The medieval Catholic philosopher, Thomas Aquinas, defined law as consisting in the standards of justice which exist for the common good of the community and should be compulsory.⁶ Justice differs from other parts of morality in that it covers aspects of morality that we may be compelled to perform under threat of punishment. It is morally good to devote substantial amounts of time to helping the poor and volunteering for community service, but no one has a right to compel us to do so. But the state or the community should compel us to refrain from murder or from enslaving people. Altruism may be supererogatory, a virtue that we may encourage but not command, but the rules of justice can and should be commanded, for justice forms the content of those rules that are necessary for living a minimally decent life in a community.

At the most fundamental level justice arises in order to stave off a state of nature, described by Thomas Hobbes (1588–1679) as a “war of all against all,” where no one is secure, but life is “solitary, poor, nasty, brutish, and short.”⁷ In order to prevent this dismal predicament, reason tells us to fol...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Chapter 1 Introduction
• Chapter 2 The Classical Theory of Justice as Desert
• Chapter 3 The Libertarian Theory of Justice: Robert Nozick
• Chapter 4 The Liberal Theory of Justice: John Rawls
• Chapter 5 Complex Justice
• Chapter 6 Equal Opportunity
• Chapter 7 Global Justice
• Chapter 8 Justice and Punishment
• Conclusion
• For Further Reading
• Index