Justice And Injustice Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

The concepts of justice and injustice have been deployed for about two and a half millennia to evaluate human beings, human actions, and the consequences—discrete and aggregate—of human actions. Although the concept of justice has been developed into numerous and often conflicting conceptions, its applications have evolved considerably. A tendency to use the concept dichotomously has persisted throughout its history.

The English term justice derives from the Latin word jus, which comes in turn from a Sanskrit word meaning “to join” or “to bind.” Cognate terms exist in a number of ancient languages. In the Hebrew Bible, mishpat is a legal term meaning what a judge should decide, while tzedek is an ethical term that refers to a righteous person, and tzedakah refers to the abstract quality of righteousness. The early Greek term is diké, meaning what is right and implying an idea of order or balance that must be restored when disturbed. A person who did what was right was called dikaios. When later Greek writers, including Plato, began to discuss justice as an abstract quality, they invented the term dikaiosyné to denote the quality displayed by a dikaios. The abstract concept of justice thus makes its appearance in the extant literature with the advent of terms like tzedakah and dikaiosyné.

As a political concept, justice involves agents (i.e., actors capable of intentional action) and circumstances that are susceptible to change through the actions of agents and have an impact on the benefits they enjoy, the harms they suffer, and the burdens they bear. Beyond these stipulations, the scope of the concept is a matter of controversy.

A widespread early concept of justice is embodied in the notion of lextalionis, which refers to the general rule that wrongdoers should be punished for their crimes by being made to suffer the same harm they have inflicted on their victims. The Hebrew Bible decrees that “thou shalt give life for life, eye for eye, tooth for tooth, hand for hand” (Ex. 21:23–24; cf. Dt. 19:21). According to the Roman Twelve Tables, when a man has committed a certain offense, he should suffer retribution like the crime he has committed. By the standards that prevail in “highly developed” societies in the twenty-first century, lextalionis may seem inhumane. However, historically it was probably an effective means of minimizing violence by limiting the severity of acts of retribution and asserting some degree of centralized control over them.

Concepts Of Justice

Most of the territory covered by the concept of justice can be mapped by explicating three major distinctions: between natural and conventional justice, between corrective and distributive justice, and between conservative and ideal justice.

Aristotle introduces the first two of these distinctions in his Nicomachean Ethics, and his discussion, though far from definitive, has been highly influential. Natural justice, according to Aristotle, is strictly objective and noncontingent; what is just by nature is so, whether or not human beings recognize or accept it as such. In contrast, what is just by convention is so as a result of contingent human agreement or decree. Conventional justice, then, is subject to change by human artifice; natural justice is not. Natural justice also establishes boundaries for the range of possible institutions, practices, and rules that can be established as just by convention. No human agreement or decree can ever make a practice just if it is unjust by nature. This distinction underpins traditions of thinking about natural law and natural rights that have played a formative role in political and legal thinking over the past millennium and that remain vital in some quarters.

Aristotle also distinguishes between distributive and corrective justice. According to his account, the notion of distributive justice applies to “the distribution of honors, of material goods, or of anything else that can be divided” among the members of a group, such as a political association (1962, 1130b). In contrast, corrective justice applies to private transactions, which Aristotle divides into the voluntary and the involuntary. Voluntary transactions arise from private agreements such as those embodied in contractual exchanges. Corrective justice in relation to these transactions is called for when promises are broken or contracts are breached. The involuntary transactions that raise issues of corrective justice are wrongs inflicted unilaterally by one person upon another, such as theft, assault, and defamation. Most if not all of these “transactions” would be classified as crimes or torts in most modern legal systems. In both kinds of cases, the purpose of corrective justice is to restore a relationship between equal parties when one of them has disrupted it by committing a wrong. The restoration is achieved by inflicting a loss on the offender and, whenever possible, either restoring the status quo ante or supplying some compensation for the victim. The fundamentals of this notion of corrective justice persist.

It is also useful to distinguish—following nineteenth century utilitarian philosopher Henry Sidgwick—between conservative and ideal justice. Conservative justice upholds established rights and entitlements, whatever these happen to be, regardless of whether they are established through criminal laws, tort law, contract law, or institutions designed to give effect to a conception of distributive justice (such as tax codes or laws regarding the inheritance of property). The notion of ideal justice, in contrast, is intended to serve as a critical standard that might be used to guide reform of established rights and entitlements.

Sidgwick’s notion of conservative justice is roughly equivalent to Aristotle’s idea of justice by convention. While the notions of ideal justice and natural justice overlap, however, they are not identical. The idea of natural justice presupposes that at least some things are endowed by nature with moral significance; the notion of ideal justice does not. Further, while the idea of natural justice establishes boundaries that restrict the range of justifiable human practices, it does not, as usually conceived, provide a basis for thoroughgoing assessments and possible reforms of existing institutions, practices, and rules in the way that ideal justice often does. It is plausible to think of the idea of natural justice as a particular, limited theory of ideal justice, and of the latter idea as a modern generalization and extension of the former. The distinction between distributive and corrective justice stands in a roughly orthogonal relationship to both these other great distinctions.

The most widely accepted general definition of justice is expressed in the Latin phrase suum cuique tribuere, “rendering to each person his due,” found in the Digest of Roman law and in earlier writings by Cicero (the same idea is expressed in the opening arguments of Plato’s The Republic). Of course, this formula is mute about questions concerning precisely what things are due to which people.

Content Of Justice

The substantive content of justice—of claims about what is due to whom—is hotly contested. The principal alternatives are separated by two major fault lines. The first has to do with the relationship between distributive justice and corrective justice. According to one family of views, corrective justice either comprises the whole of justice so that the notion of distributive justice is meaningless or inconsequential (philosophers Cicero, David Hume, and Friedrich Hayek share this view), or the notion of distributive justice is essentially reduced to that of corrective justice (philosopher Robert Nozick). According to a rival family, distributive justice comes before corrective justice either in the sense that the principles of corrective justice are derived from those of distributive justice or in the sense that corrective justice is fully applicable only to situations in which at least a modicum of distributive justice has been realized.

A second major fault line divides proponents of distributive justice from one another. One view is that the primary or sole basis on which goods should be distributed is desert or merit. According to proponents of this view, some people should, as a matter of justice, receive greater shares of certain goods than others because they deserve them. According to an alternative view, the primary basis on which goods should be distributed is need. This view leads to a presumption that goods should be distributed equally to all people—or to all members of a political association—unless differences in individuals’ needs justify inequalities or there is another compelling reason to accept inequalities.

The notion that corrective justice comprises the whole of justice has a distinguished pedigree in the political thought of Europe and its extensions, with Roman thinker Cicero standing as one of its principal progenitors. Cicero’s argument for this view rests on a sharp distinction between justice and beneficence. Justice is violated, he claimed, only when people inflict actual harm on one another. By contrast, failures of beneficence merely deprive people of a possible benefit rather than of something that is their due.

Cicero’s argument is probably the most influential defense of the view that corrective justice should be understood to comprise the whole of justice. Yet neither Cicero nor anyone else has ever made a compelling case for the corollary claim that existing distributions of holdings of property and other goods should be exempt from critical scrutiny on grounds of justice. An argument for this view can be reconstructed from the writings of David Hume, who suggests that human beings are so competitive, egoistic, and unsociable by nature that it is far more important for people to respect established entitlements than it is for those entitlements to conform to any particular principle of distributive justice. Even if this claim is correct, however, Hume’s conclusion that distributive justice has no role to play in our conception of justice as a whole does not follow from it. Indeed, Hume’s particular arguments against notions of distributive justice are vitiated by the fact that he considers (and rejects) only two alternatives to the maintenance of the status quo of his time, namely, the abolition of all private property and the thorough equalization of all property holdings. Most proponents of distributive justice argue for neither.

Most prominent advocates of the idea of distributive justice hold that it theoretically precedes corrective justice. The basic idea of corrective justice is to redress an imbalance caused by a violation of an existing rule of justice by inflicting punishment in some form on the violator, restoring the status quo ante, or supplying compensation to approximate a restoration. This idea makes sense only if the status quo ante is just, or at least not grievously unjust because it would be perverse to invoke corrective justice to restore a status quo ante that cannot be defended on grounds of justice.

One could argue, as Friedrich Hayek does, that it makes little sense to apply the concepts of justice and injustice to a social or distributive order as a whole. Hayek would like us to regard the distributive consequences of social institutions as if they were facts of nature altogether beyond the scope of human control. He suggests, at times, that human beings do not possess the collective capacity to shape distributions of entitlements on a society-wide scale; at other times he asserts that we possess this capacity, but the costs of exercising it would be unacceptably high.

Hayek believes that the capacity of human beings collectively to shape their societies in accordance with common purposes is far more limited than some eighteenth-century Enlightenment and later enthusiasts have believed. We shape our social institutions and their consequences through fits and starts, by trial and error, often taking one step—or more than one step—backward for every two steps forward. It is not true, however, that we possess no capacity to predict the consequences of our institutions and to adjust them accordingly. Modern representative democracy stands as a monumental, if flawed, testament to the effective human capacity for invention. So do modern market systems, which only a century or so ago helped make it possible for societies in which they had taken hold to eliminate from within their borders the dire poverty that was long regarded as a fact of nature.

Concepts Of Distributive Justice

Although the idea of distributive justice is certainly defensible and arguably presupposed by any persuasive theory of corrective justice, the proponents of distributive justice are deeply divided between two alternative conceptions.

Historically, the dominant conception of distributive justice is that the primary basis on which goods should be distributed is desert or merit. Aristotle argues that distributive justice is proportional—that is, that goods (honors, wealth, and the like) should, as a matter of justice, be distributed among persons in proportion to their deserts. Indeed, he asserts that this claim is uncontroversial, though he concedes that people disagree about the basis of desert. This view appears to have gone nearly unchallenged among political philosophers for some two millennia; Henri de Saint-Simon reasserted it in the nineteenth century, albeit with an entirely different conception of the basis of desert from Aristotle’s.

Advocates of ideal distributive justice on the basis of desert typically, and perhaps necessarily, view desert as a “natural” or prepolitical moral notion, because the point of such a conception is to constitute a standard that can be used to criticize existing institutions and to guide reforms. Suppose desert were purely an artifact of existing institutions and practices. In that case, while the members of a given society could deploy their notion of desert for piecemeal criticism of particular practices or institutions that fail to live up to the standards embodied in that notion, they could not invoke their notion of desert as a standard to judge institutions or practices as a whole because to do so would be viciously circular. However, it does not seem possible to sustain the view that desert is prepolitical. A society that is constantly concerned about defending itself from attack, for example, is likely to hold the characteristics typical of successful warriors in high esteem and to regard them as highly deserving, whereas a society that thrives on the production and dissemination of knowledge is likely to regard intellectual virtues as more worthy of rewards. The qualities that are grounds of desert seem to be, at least to a significant degree, products rather than presuppositions of institutional arrangements.

The principal alternative conception of distributive justice is that it is based primarily on need. In the 1790s, both philosopher Johan Gottlieb Fichte and political journalist “Gracchus” Babeuf argued that states should, as a matter of right or justice, redistribute wealth from the wealthy to the poor, so all citizens could have an agreeable life. In 1839, politician and historian Louis Blanc formulated the principle, “from each according to his ability, to each according to his need.” The most elaborate and rigorous defense of this broad conception of distributive justice was developed in the second half of the twentieth century by philosopher John Rawls. In his theory of justice as fairness, Rawls argues that inequalities in people’s shares of goods can be justified but only if they satisfy certain conditions, the most innovative of which is that the inequalities must work to the benefit of the least advantaged members of a society (i.e., those who are least well-off). Rawls calls this condition the difference principle.

Although the notion of distributive justice based on need is ancient, it has gained prominence only since the French Revolution (1789–1799). One likely factor behind its recent prominence is the emergence in the Enlightenment of the perception that human problems once considered insoluble might be susceptible to human intervention and amelioration. Another may be the democratization of political discourse and theorizing that accompanied the modern democratization of political institutions.

Desert-based and need-based conceptions of distributive justice are inherently in tension with one another. At least from Aristotle onward, the assumption behind desert-based conceptions has been that desert is distributed unequally among people, so the implication of principles based on desert is that benefits should be distributed unequally as well. Most advocates of need-based distributive justice have assumed that genuine needs are generally distributed in a roughly equal manner so that goods should be distributed in an egalitarian manner unless departures from an equal distribution are justified on some other ground.

In recent years, the range of subjects to which the concept of justice has been applied has grown. St. Augustine and others early in the Christian era attempted to apply the concept of justice to the initiation and conduct of war; these efforts have been refined significantly over the past several centuries. Since the middle of the twentieth century, scholars and other interested parties also have begun to apply the concept of justice to circumstances in the immediate aftermath of war and the collapse of authoritarian regimes, applications that have led to the invention of a new field of transitional justice. The scope of the concept of justice also has been extended—controversially—in “inward” and “outward” directions. In recent years, the concept of justice has been applied to personal and familial relations that were once widely considered exempt from considerations of justice, mainly through the work of feminist writers who have argued that the division of labor, responsibilities, benefits, and burdens within families should be subject to critical scrutiny in much the same way as more public institutions are. Scholars and activists have argued also that both corrective and distributive justice should be extended beyond their traditional range, which customarily has stopped at the borders of established political associations, and applied to some of the most heinous transgressions without regard to borders, as well as to the global distribution of benefits and burdens.

Bibliography:

Nichomachean Ethics. Translated by Martin Ostwald. Indianapolis: Bobbs-Merrill, 1962.
Barry, Brian. Why Social Justice Matters. Cambridge: Polity, 2005.
Beitz, Charles R. Political Theory and International Relations. Princeton, N.J.: Princeton University Press, 1979
On Duties, edited by M.T. Griffin and E. M. Atkins. Cambridge: Cambridge University Press, 1991.
Feinberg, Joel. “Justice and Desert.” In Feinberg Doing and Deserving. Princeton, N.J.: Princeton University Press, 1970.
Fichte, Johann G. Foundations of Natural Right. Edited by Frederick Neuhouser; translated by Michael Baur. Cambridge: Cambridge University Press, 2000.
Fleischacker, Samuel. A Short History of Distributive Justice. Cambridge, Mass.: Harvard University Press, 2004.
Hayek, Friedrich A. Law, Legislation, and Liberty, Vol. 2:The Mirage of Social Justice. Chicago: University of Chicago Press, 1976.
Hume, David. An Enquiry Concerning the Principles of Morals. Edited by Jerome B. Schneewind. Indianapolis: Hackett, 1983.
Miller, David. Social Justice. Oxford: Oxford University Press, 1976.
Nozick, Robert. Anarchy, State, and Utopia. New York: Basic Books, 1974.
Okin, Susan M. Justice, Gender, and the Family. New York: Basic Books, 1989.
The Republic. Translated by G. M. A. Grube, revised by C. D. C. Reeve. Indianapolis: Hackett, 1992.
Raphael, David D. Concepts of Justice. Oxford: Oxford University Press, 2001.
Rawls, John. A Theory of Justice. Cambridge, Mass.: Harvard University Press, 1999.
Sidgwick, Henry. The Methods of Ethics. Indianapolis: Hackett, 1981.

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