A comprehensive anthology on justice with readings that offer the different theories on the importance and placement of justice in society.The well-argued, accessible articlesencompass classic to contemporary theories and cover both positive and negative.
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Contemporary thinking about justice has been dominated by the debate between classical liberals, often called libertarians, and welfare liberals, often called liberals. The libertarians base their theory of justice on traditional ideals of liberty, emphasizing its negative quality; to be free is to be free from coercion, especially the coercion of government, whose role is primarily to protect our liberty. Libertarians trace their view back to the British liberals, Thomas Hobbes (reading 3), John Locke, and John Stuart Mill (reading 6), who believed that the state should protect citizens from violence (internal and external), but ought not invade their privacy or property. Justice is based on an inalienable right to be free from coercion. We examine this tradition in our opening section (II.A), studying the work of such libertarians as John Hospers, Robert Nozick, and Jan Narveson, as well as their critics.
Welfare liberalism, on the other hand, holds that justice requires that the state engage in the redistribution of wealth and opportunities, including meeting basic needs and providing citizens with fair equal opportunity. In other words, in addition to negative liberty, freedom from, the state should guarantee citizens positive liberty, freedom for. As such, the ideals of need and equality must be added to liberty as providing the substantive basis of justice. The state has an obligation to be positively concerned with the interests of its citizens, redistributing wealth to provide for the well-being of the worst off members of the community and providing opportunities, such as basic education (and possibly affordable health care), so that each citizen may have the possibility to develop his or her talents in a meaningful manner. We will examine the idea of justice in welfare liberalism, especially the work of John Rawls, together with its communitarian critics, Alasdair MacIntyre and Michael Sandel, in Section II.B. The debate over liberalism typically involves a debate over some form of equality, either equality of worth, condition, or opportunity. In Section II. C we turn to the concept of equality and equal opportunity, as well as contemporary versions of desert, which is often viewed as a competitor of equality.
II.A. Libertarianism: Justice as Liberty
I know not what course others may take; but as for me, Give me liberty or give me death.
(Patrick Henry at the Second Virginia Convention, 1775)
Man is born free, but is everywhere in chains.
(Rousseau, 1792)
Libertarianism holds that justice consists in protecting liberty. In forming a society we come together as moral equals in order to guarantee security and liberty. Government is necessary to prevent the state of nature described by Hobbes (reading 3) and Locke with its threat of violence. The purpose of the state is to protect citizens from the internal threat of crime and the external threat of war, as well as to provide a mechanism for resolving conflicts of interest fairly, and coordinating behavior (e.g., devising traffic patterns, such as driving on the right side of the road instead of the left or as everyone sees fit). Libertarians focus on the question, “What is the extent of the state’s authority over the individual?” If not anarchy, complete liberty, what is the proper balance between individual liberty and governmental authority? Should the state be permitted to protect us from ourselves, from taking great risks? Or should we have maximal liberty—to use drugs, to drive without using seat belts, to commit suicide, to do whatever we want, as long as we take responsibility for our actions? Libertarians base their notion of justice on the philosophy of two British empiricists, John Locke (1632–1704) and John Stuart Mill (1806–1873). Locke emphasized the state’s obligation to protect private property, whereas Mill emphasized that the state ought to provide individuals with maximal liberty, consistent with the liberty of all.
In his classic essay, On Liberty (1859), John Stuart Mill attempts to set forth a defense for maximal, but not complete, liberty. We begin with his grand statement of purpose:
The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right…. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.1
The main points of Mill’s Liberty Principle are as follows.
1. Nonanarchy Principle or Self-Protection Principle: The state ruling in a civilized society is necessary to protect people from harm. It may interfere with individual liberty when harm is likely to result to others from our actions.
2. The Harm Principle: Although the state may intervene against harm likely to occur to others, it may not interfere with self-regarding action. It may not interfere with the individual for his own good, “because it will make him happier,” or is imprudent or wrong.
3. The Liberty Principle: An individual may do whatever he desires to do, as long as he is not harming others. “Over himself, over his own body and mind, the individual is sovereign.” This states the harm principle from the individual perspective.
Mill goes on to qualify these points. He is speaking of mature adults living in a civilized society. He does not mean his principle to apply to children or young people below an age of maturity. Nor does the principle apply to those “backward states … in which the race may be considered as in its nonage.… Despotism is a legitimate mode of government in dealing with barbarians.” First, people must become sufficiently rational as to deserve to be treated as autonomous agents. Second, his defense of liberty is not based on the idea of natural or abstract rights or deontological notions of dignity, but solely on utilitarian principles. “I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being.”
In Chapter 5 of his Second Treatise of Government (1789), John Locke offers the classical account of the origination and legitimation of property. He writes the that God has given the Earth to all men in common, but for our individual survival and enjoyment has allowed us to have our own property from which we can exclude others. “Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labor with, and joined to it something that is his own, and thereby makes it his property.”
Originally, all things were owned in common, which meant that they were not really owned, in the sense that we could do whatever we wanted with the Earth’s resources. But human beings had to eat or perish. They partook of the fruits and nuts of the forest in order to survive. If no one ever expropriated anything, all would die. Property acquisition is need-based. A person may take what he or she needs to survive. Locke, as a Christian, believed that God gave the Earth to humanity to use for our survival and enjoyment. We may take what we need and by mixing our labor with it make it our own. But God put two provisos on our use of nature:
For this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.
Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough, and as good left; and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself. For he that leaves as much as another can make use of, does as good as take nothing at all. Nobody could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst: And the case of land and water, where there is enough of both, is perfectly the same. (Sect. 33)
A man must leave “enough, and as good” for others. That is, he must not hoard or greedily exclude others from (1) the Earth’s bounty, and (2) we must not waste. We must not take more than we need for our survival and our flourishing. We have right to property, extending from our own bodies to what we appropriate in nature and labor with which we mix our labor. But we are to be good stewards of the Earth, neither abusing her nor selfishly accumulating material possessions. The basic argument goes as follows:
1. I own my body and my labor.
2. In laboring with nature, I mix my labor with the object.
3. If the object is unowned, it becomes my property.
The idea is that by changing part of nature through my work, say by turning a tree into a table or chair, I extend my body into the object. Is this true? We might point out that those who are not able to work cannot own anything in this primary way. In addition, the argument relies on a biblical account of human origins. If there is no God, the argument may not seem as cogent. In Anarchy, State and Utopia (ASU), Robert Nozick has pointed to another problem. The argument that mixing labor with nature or land entitles you to it seems to rely on a missing premise (P):
[P] If I own something and mix it with something else, that is unowned, I acquire ownership of that other thing. “Ownership seeps over into the rest.”2
Locke has in mind such activities as cutting down unowned trees and using the wood to build your house and fences, cultivating the land, planting corn and potatoes. Here the argument takes on an aspect of desert, “what a man sows that should he reap.” By expending energy and intelligent effort he transforms a part of the forest into a farm. The laborer deserves the fruits of his labor, whereas the free-loader or robber who takes the farmer’s goods does not deserve them but should be punished.
Once the property is yours you may sell it or give it away, but you may not destroy it wantonly, since you are a steward of property that ultimately belongs to God. There is still the problem of inheritance. If the only reason you have a lot of property and I very little, is because your great, great grandfather came here before my father, this seems unfair. At any rate, Locke’s argument seems meant for a pioneer society, like settlers in America’s western frontier, but seems less applicable in most countries today where virtually all the inhabitable land is already owned. There simply isn’t “enough, and as good” left over for others.
Libertarians, such as Milton Friedman, F. A. Hayek, John Hospers, and Robert Nozick, each in a different way, base their concept of justice on Mill’s idea of liberty and Locke’s right to property.
Hospers (reading 7) who once ran for president of the United States as a Libertarian Party candidate emphasizes the right to Millian liberty, to be free from state interference, and calls for the privatization of public goods such as schools and highways.
Nozick (reading 8) accepts a version of Locke’s theory of property and sets forth a rights-based Entitlement Theory of Holdings, involving the principle of justice in acquisition and transfer of holdings. A distribution is just if everyone has that to which he is entitled. To determine what people are entitled to, we must understand what the original position of holdings or possessions was and what constitutes a just transfer of holdings. Borrowing from John Locke’s theory of property rights, Nozick argues that we have a right to any possession as long as our ownership does not worsen the position of anyone else. His three principles are:
1. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to it.
2. A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding.
3. No one is entitled to a holding except by (repeated) application of 1 and 2. (ASU, p. 151)
Nozick later adds a principle of rectification of injustice in holdings. If a holding was acquired unjustly, justice requires that it be restored to the original owner. But the basic idea is Lockean. Nozick’s Entitlement Theory of Holdings is historical, dependent on how the acquisition came about. If the original acquisition of property came about by someone appropriating an unowned piece of nature, that person was entitled to and could pass it down or transfer it as he so desired, as long as the Lockean proviso was followed.
Next, Nozick distinguishes between patterned and nonpatterned schemes of distributive justice.
“Let us call a principle of distribution patterned if it specifies that a distribution is to vary along with some natural dimension, weighted sum of natural dimensions, or lexicographic ordering of natural dimensions.” A patterned principle chooses some trait(s) that indicates how the proper distribution is to be accomplished. It has the form:
To each according to ______.
Socialists believe that need is the relevant trait. Meritocrats like Aristotle believe merit is the answer. Utilitarians would say the trait is utility. Classicists would put class status in the blank. A pluralist like Nicholas Rescher might specify a combination of traits, depending on the type of distribution to be made.
But Nozick’s theory is a nonpatterned scheme. There is no preordained formula it must adhere to, no pattern it must follow. If it came about justly, the holding is yours, period, and no one has a right to take it away from you.
From each according to what he chooses to do, to each according to what he makes for himself (perhaps with the contracted aid of others) and what others choose to do for him and choose to give him of what they’ve been given previously (under this maxim) and haven’t yet expended or transferred. (ASU, p. 160)
Or to state it more succinctly, “From each as they choose, to each as they are chosen.”
Nozick’s theory maximizes human liberty much in the way Mill prescribed, advocating laissez-faire capitalism. Granting people liberty to acquire and transfer property prohibits the government from limiting what they do with their property or from taxing it.
Nozick rejects patterned types of principles, such as those of Rawls (reading 12) because such attempts to regulate distribution constitute a violation of liberty. Taking liberty seriously would upset patterned distribution schemes. Nozick illustrates this point by considering how a great basketball player, Wilt Chamberlain, could justly upset the patterned balance. Suppose that we have reached a patterned situation of justice based on equality. Imagine that there is a great demand to watch Chamberlain play basketball and that people are willing to pay him an extra 25 cents per ticket in order to see him play. If one million people pay to see him play during the year, the additional gate receipts add up to $250,000. Chamberlain thus takes home a great deal more than our patterned formula allows, but he seems to have a right to this. Nozick’s point is that, in order to maintain a pattern, one must either “continually interfere to stop people from transferring resources as they wish to, or continually interfere to take from some persons resources that others fo...
