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f the concept of human rights is of relatively recent origin, just the opposite could be said about the concept of justice: it is a moral concept with a rich and long history, stretching back before the time of Plato and Aristotle and running as a constant threat from ancient thought to the twenty-first century. No one in the twentieth century has stated the importance of justice more eloquently than John Rawls in the famous opening paragraphs of his 1971 classic, A Theory of Justice:
Justice is the first virtue of social institutions,
as truth is of systems of thought. A theory however elegant and economical must
be rejected or revised if it is untrue; likewise laws and institutions no
matter how efficient and well-arranged must be reformed or abolished if they
are unjust. Each person possesses an inviolability founded on justice that even
the welfare of society as a whole cannot override. For this reason justice
denies that the loss of freedom for some is made right by a greater good shared
by others. It does not allow that the sacrifices imposed on a few are
outweighed by the larger sum of advantages enjoyed by many. Therefore in a
just society the liberties of equal citizenship are taken as settled; the rights
secured by justice are not subject to political bargaining or to the calculus
of social interests. The only thing that permits us to acquiesce in an
erroneous theory is the lack of a better one; analogously, an injustice is
tolerable only when it is necessary to avoid an even greater injustice. Being
first virtues of human activities, truth and justice are uncompromising.
These propositions seem to express our intuitive conviction of the
primacy of justice.
Justice, Rawls is telling us, is fundamental to social institutions and the laws that govern institutions and people.
But what, exactly, is justice? This is a long-debated question by philosophers and jurists and political leaders, and our consideration of justice will begin with a brief consideration of one of the earliest philosophical texts about justice: Plato’s Republic. After that we will look at one of the most recent theories of justice, but one that is extraordinarily powerful: John Rawls’ account in A Theory of Justice. (1972) Then we will turn to a consideration of types of justice, especially distributive justice and conclude with a discussion of just war theory.
Plato’s Account of Justice
Plato’s Republic is one of the classics of Western philosophy, and it
constitutes a long meditation on the nature of justice. Indeed, after Plato’s death The Republic was often referred to by
its secondary title, “On Justice.” Over
the course of its ten books, it describes the ideal state, and that itself is
the embodiment of justice. For Plato,
justice is an unavoidably social and political concept, so a meditation on the
nature of justice naturally becomes a meditation on the ideal society and
state.
The Athenian Conception of Justice: Justice as Honesty in Word and
Deed.
In Book One of The Republic, we see Plato survey
several different and conflicting conceptions of justice. It is helpful to look at these, because they
provide a set of models for everyday conceptions of justice in our own times. The conversation begins with Cephalus, an
elder state
As will occur throughout The Republic, Socrates poses objections to the definition of justice. Imagine, Socrates says, that someone has stored his weapons with you. Later, the friend comes back “not in his right mind” and asks you to return the weapons to him. No one would fault us, Socrates says, from refusing to give the weapons back. But if this is so, “then speaking the truth and paying your debts is not a correct definition of justice.”
The Conventional View of Justice: Helping Friends and Harming Enemies
Cephalus gives up on defining justice, and turns the conversation over to Polemarchus, his son. Polemarchus states the conventional view of justice, namely, that justice consists in helping your friends and harming your enemies. In dealing with your enemies, your should return evil for evil, according to Polemarchus. This definition, Socrates suggests, might be useful in war, but it offers us little guidance in times of peace. Socrates then proceeds to twist Polemarchus’ ideas around to the point that Polemarchus seems to be saying that the just person is best at being unjust
The Cynical View of Justice: Might Makes Right
The next
definition of justice considered by Socrates is advanced by Thrasymachus, who
maintains that “justice is nothing else than the interest of the stronger.” This is a definition which continued to have
adherents throughout the twentieth century, most notably in the
There is obviously a certain amount of realism in this view: justice is rarely achieved without the support of the power structure, but it is only the cynic who agrees with Thrasymachus that justice is only the interest of the stronger. If that were the case, there never would be justification for criticizing the state for acting unjustly.
Plato’s View of Justice
It would be simple if Socrates then went on to tell us what justice really is, but this is not the way Socrates (and Plato) taught. Rather, we have to look at the entirety of The Republic to see what Plato really meant by justice, and even that is the source of much disagreement among scholars. Here I will offer simply one view of what Plato may have meant by justice.
Justice in The Republic is harmony, both internal
and external. Internal harmony is a
proper balance in the soul, and external harmony manifests itself in the
state. The virtuous individual possesses
inner harmony, a balance among the faculties of the soul. In order to live a good life, the virtuous
individual must live in a just society. Thus
inner and outer justice need one another: without just individuals, a just
society is impossible; without a just society, the life of the just individual may
not be a happy one.
Distributive Justice: John Rawls
John Rawls has had a profound impact on contemporary moral and political philosophy. His most important work, A Theory of Justice, was first published in 1971, but parts of it had already been in circulation in preliminary drafts and in journal articles for several years prior to that. After its publication, it established the conceptual landscape within which discussions of justice were to occur, at least in the English-speaking literature. You could agree with Rawls or you could disagree with him, but you couldn’t ignore him.
Rawls’ Moral Concerns
There is almost no trace of Rawls’ personal life and concerns in his published writings. Aside for thanking individuals for their comments and support, he says nothing personal. But in a helpful review essay devoted to several recent books by Rawls, the philosopher Thomas Nagel gives us some insight into the motivations underlying Rawls’ work.
According to Nagel, Rawls was always deeply concerned about the “injustices associated with race, class, religion, and war.” Slavery was the model of injustice for Rawls, and a good moral theory would not only condemn slavery, but would do so for the right reasons. He was an infantryman in World War II and was familiar with the horrors of war, horrors perpetrated by friends as well as foes. And he was deeply aware of how lucky he had been in many way, not the least of which was not to have fallen in combat. And he was acutely aware of the extent to which that luck was not deserved—it was simply luck. Throughout his work, Rawls remains highly sensitive to this issue of luck, and his goal is to create a society in which luck plays a minimal role in the rules that govern that society. Out of this comes Rawls’ deep egalitarianism, his desire to see everyone treated as fairly as possible. The Theory of Justice provides an account of what is involved in such fair treatment.
The Original Position: A Thought Experiment
Imagine you
are put in the following situation. You
are one of a group of people who have been assigned the task of devising the
basic rules that will govern society and the interactions of individuals in
society. Your job is to work with the
other people in the group to devise this set of principles. Furthermore, you are representing someone
else in doing this, as are all the other delegates. You are to act rationally, and all of you are
to act in the best interests of the people you represent. There is just one catch: you are behind what
Rawls calls the “veil of ignorance.”
The Social Contract
Up until Rawls introduces the notion of the veil of ignorance, his account forms a standard hypothetical contractarian approach, that is, he sees the foundation of morality in some kind of social contract, usually implicit rather than an actual contract agreed upon at some historical time. Perhaps the most well-known representative of this approach to social theory was Jean-Jacques Rousseau, whose book The Social Contract (1762) continues to be studied today.
The Veil of Ignorance
Rawls’ distinctive addition to the concept of the social
contract was to ask the participants to imagine that they do not know any
particulars about the person each of them was to represent. Thus, as a representative in the original
position, I would be committed to acting rationally
Imagining ourselves behind the veil of ignorance is a powerful psychological and conceptual tool for helping us to overcome the prejudices of everyday life. Think about gender. If we imagine ourselves to be acting in a rationally self-interested way, but not knowing whether we were representing a male or a female, we might well find ourselves revising some of the basic sex-based roles in our own society. Indeed, as we shall see in Chapter 10 when we discuss gender and moral theory, the political philosopher Susan Moller Okin uses precisely this line of reasoning to suggest that the benefits and burdens of family life fall differently and unfairly on the shoulders of men and women. Imagine being behind the veil of ignorance and asking what would the basic principles regulating family life should be. It is highly likely that we, not knowing whether we represented a male or a female, would argue in favor of a much more equitable division of labor than presently exists in our society.
Imagine that you are behind the veil of ignorance and do not know what country your principal lives in. How would this affect your views of international economic justice? Remember that you do not know whether you are representing someone from an affluent and comfortable country or someone from a famine-ridden, debt-plagued country. The challenge would be to devise principles of international economic justice that would be most fairest to all, no matter what their economic situation. Our views on world poverty might change significantly, no knowing whether we would have to explain our decision to a poor person or a wealthy one, to a resident of an impoverished country or an economic giant.
It is easy to see the Kantian dimension present in this notion of the veil of ignorance. Kant asks us to set aside our moral individuality and ask what any rational agent ought to do in a given situation. (This is the force of Kant’s imperative that we ought to be able to will the maxim of our actions for all rational beings.) By denying us knowledge of the specifics of our situation, and by asking us to represent in a rational and prudential way the best interests of that person concealed behind the veil of ignorance, Rawls forces us into a kind of neutrality that has a clearly Kantian flavor. Although we are self-interested in this context, we don’t have any specific knowledge of the particular self that would allow us to be partisan in standard ways. Deliberation in the original position behind the veil of ignorance should insure that no one’s interests are short-changed.
We can also see the way in which Rawls’ veil of ignorance helps to even our some of the effects, both positive and negative, of mere luck. We do not know whether or not we have been lucky enough to be very intelligent, to be very athletic, to be very gregarious, to be very rich, to be part of the ruling elite. The veil of ignorance flattens out some of those quirks of fate, and in so doing provides a more level playing field for the moral life.
Rawls’ Principles
Deliberating behind the veil of ignorance in the original position, what principles will we adopt for our society according to Rawls? He maintains that would reach agreement on two basic principles, one regarding basic rights and liberties and the other regarding the distribution of social and economic inequalities.
Basic Rights. In A Theory of Justice, Rawls maintains that “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.”
The Difference Principle. “Social and economic inequalities are to satisfy two conditions:
(a) they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and
(b) they are to be to the greatest benefit of the least advantaged members of society.” (TJ, pp. 5-6; formatting added)
These two principles form the core of Rawls’ position, and they can both be seen as principles of distributive justice. The first principle, the basic rights principle, establishes how we should distribute liberties. Part (a) of the difference principle establishes how we should distribute opportunities. These two principles are indexical, that is, if there is a conflict, principle 1 overrides principle 2, and (a) overrides (b). Let’s look at some examples to see what Rawls means by these principles.
Consider the Difference Principle, part (a). (This example will be more concrete than Rawls would give, but it illustrates the point quite well.) We have laws regulating driving regarding speeding, stop lights, etc. If two people were speeding, and the police let one go because the speeder was the child of the chief of police, we would consider that unjust. If, however, the police did not stop a speeding ambulance because it was rushing someone to the hospital, that would not offend our Rawlsian sense of justice. The exception would be based on the position or office (ambulance driver), which is open to all, whereas this is not the case with the child of the chief of police.
The Difference Principle, part (b) might be used to justify attempts to level the playing field after inequalities due to racial discrimination. We might, for example, treat people differently because they had been severely deprived due to racial bigotry. Such differential treatment might involve additional tutoring, more active recruitment, and the like. The underlying justification of this, In Rawls’ eyes, is that these are the least advantaged members of society and differential treatment is justified in order to narrow the gap between the least advantaged and the majority of society.
Similar considerations might be used to justify the Americans with Disabilities Act. It is reasonable, within the light of the Difference Principle (b), to provide access ramps in public places for people with disabilities that require such ramps, to provide elevators in multistoried buildings, etc. Again, the key insight here is that differential treatment is justified precisely in the case of the least advantaged.
On the other hand, this principle would not justify large tax exemptions for the wealthy, precisely because this would not benefit the least advantaged but rather the most advantaged.
Distributive Justice: Non-Rawlsian Theories
Much of the work done in the last fifty years has centered on the theory of distributive justice, and Rawls’ A Theory of Justice is one answer to the question of distribute justice. It is not, however, the only one Let’s first look at two of the problems these theories of distributive justice are intended to address: the distribution of scarce goods and the distribution of inequalities. Then we will look at three additional theories—egalitarian, welfare, and libertarian or market-based approaches—that will round out our account of distributive theories of justice.
The Distribution of Scarce Goods
There are many things in society that are in comparatively short supply, where the need (or demand) exceeds the supply. Take, for example, the need for kidney transplants. The demand for kidneys far exceeds the supply. How can we best deal with this situation? Consider several possible approaches.
First, we could say that the kidneys should go to the medically most needy (i.e., those closest to death from kidney failure), perhaps further determined by the likelihood that the transplant will be successful. This is the Rawlsian approach. Second, we could say that everyone has an equal right to these resources and, where they are scarce, simply have a lottery. This would be an egalitarian approach. Third, we could say that the kidneys should go to those whose continued functioning would be most beneficial to society as a whole. This is the utilitarian or welfare approach. Thus religious or financial leaders, creative scientists and industrialists, and the like would be more likely to receive transplants than, say, vagrants or dishwashers or clerks in stores. Fourth, we could simply say that kidneys go to the highest bidders. After all, that’s what we do with many other commodities in our society. We can call this the market-based approach.
Presumably, when we ask questions such as these, we have in mind some principle of justice for apportioning those scarce goods. If might be a market principle, a principle of need, a principle of desert or merit, a consequentialist principle of benefit, or yet some other principle. The point here is simply that theories of distributive justice arise, at least in part, precisely out of the need to provide answers to questions such as these.
The Distribution of Inequalities
Inequalities abound in life. Some people are rich, some poor. Some are musically gifted, others are tone deaf. Some have photographic memories, others must work very hard to remember even a small portion of what they read. Some are held hostage by terrorists, others move about freely. Some people are physically attractive to many others, some are not. Some people come from homes in which they have every advantage, while others come from homes characterized by neglect and abuse. Some children are born into families of affluence in wealthy countries like the United States, while other children are born into conditions of starvation in Bangladesh and often do not survive to reach adulthood. Some people are genetically predisposed toward good health, while others suffer early attacks of cancer and other disorders despite living cautious lives.
Clearly we respond to some of these inequalities differently than others, and a theory of distributive justice is intended to help us distinguish among different kinds of inequalities and decide how to respond to each kind. There are some kinds of inequalities, such as musical ability or physical attractiveness, which do not call for any special response from us. Other types of inequalities, however, may place some moral demands on us.
Consider
the response to the families of victims of the September 11th
attacks in the
Egalitarian Conceptions of Justice
Egalitarian conceptions of distributive justice maintain that everyone ought to be treated equally. An egalitarian distribution of income, for example, would require that all persons (or at least all workers) receive the same income. Sometimes this is justified on the basis of a claim that everyone deserves equal respect.
Obviously,
an egalitarian conception of distribute justice would demand an economic
structure much different from our own.
Capitalism distributes income according to a market model, and typically
in liberal democracies the government attempts to rectify the grossest
injustices through taxation and consequent redistribution of some of the income
through social welfare programs.
However, the basic wage structure remains market-driven. For an egalitarian approach to distributive
justice to be implemented, a very different and much more centralized economic
system would have to be in place.
Theoretically egalitarian system of distributive justice exist in some
state-controlled economies such as Cuba, but the reality often falls far short
of the ideal. In the
Welfare Conceptions of Distributive Justice
Utilitarian conceptions of justice stress the way in which the just distribution of resources is the one which produces the greatest overall amount of welfare or utility. While there is extensive debate about the precise definition of welfare or utility, as we have seen in Chapter 5 on utilitarianism, the basic insight here is simple and easy to state: a just distribution of goods and opportunities and liberties is the one that produces the greatest overall amount of welfare.
Welfare-based conceptions of distribute justice are open to some of the same difficulties we discussed in regard to utilitarianism in general. It seems, for example, to open the door to what we would usually consider unjust treatment of individuals in certain circumstances. It might justify racist or sexist treatment of minorities as just under certain empirical conditions. Rawls rejected the utilitarian account of justice because of cases such as these. Moreover, Rawls argued that even when the welfare or utilitarian conception of justice arrived at the right answer, it did so for the wrong reasons. Racial discrimination, for example, is not unjust because it is inefficient; it is unjust because it is inherently unfair and deprives some individuals of their basic rights unjustly.
Libertarian Conceptions of Distributive Justice
One of the most powerful challenges to Rawls’ account of distributive justice comes from libertarians, who advance a market-based theory of distributive justice Perhaps the best known of these challenges was Robert Nozick’s Anarchy, State and Utopia, which appeared in 1974, three years after Rawls first published A Theory of Justice.
For libertarians, ownership of property plays a central role. Inspired by the work of British philosophy John Locke (1632-1704), libertarians see ownership as the central right of human beings, beginning with ownership of one’s own body. The natural world is originally not owned by anyone, but by transforming it through work, individuals can make it their own. Is there any limit on how much of the natural world any one individual can acquire? Obviously, libertarians do not want to justify a world in which a few people could lay claim to vast portions of the world to the exclusion of everyone else, but it is also clear that they want to leave as much room as possible for people to approach this limit. Nozick argues that there is such a limit: individuals cannot lay claim to so much of the natural world that other people are thereby put in a worse position than when the land was un-owned.
Consider
the days in which the
Interestingly, this example raises another problem for libertarian accounts of distributive justice. What does the libertarian say about property that may at some earlier time have been acquired unjustly? Nozick admits that he needs some kind of principle of rectification of past injustices, but that principle has yet to be adequately formulated.
Because libertarians take ownership to be the fundamental right, they often see attempts by the state to deprive individuals of their ownership to be unjust. The most obvious example of this is taxation. Welfare theorists will often see a high rate of taxation as just as long as it serves to promote the welfare of all citizens, including those who are most disadvantaged. Libertarians, on the other hand, see much taxation as unjust, as the government taking something that rightfully belongs to one individual and giving it to someone else. Unless there is an extraordinarily serious justification for that kind of action, it is tantamount to theft. For libertarians, government should be minimal and taxes should be kept as low as possible. The principal role of government should be the protection of property rights. Not the taking of property.
So, too,
libertarians see government regulation on the use of private property to be
equally unacceptable. If I own a piece
of property, I ought to be able to do what I want with it as long as I do not
directly harm someone else. An
interesting example of this occurred in the area of
Justice and the Politics of Difference
Numerous critiques of standard accounts of distributive justice have appeared in recent years, and one of the most interesting and well-articulated of those critiques is Iris Marion Young’s Justice and the Politics of Difference (1990).
In contrast to the many theorists we have seen who take justice to be primarily about the distribution of goods and burdens in society, Young sees justice primarily in terms of the overcoming of oppression and domination, which are seen principally in terms of groups. In her analysis, Young distinguishes five faces of oppression: exploitation, marginalization, powerlessness, cultural imperialism and violence. When Young talks about justice, she is talking about the justice of social movements such as the civil rights movement, feminism, and other political movements of the sixties and beyond. Ideally, the just society would be one where there is no oppression or domination. This is more than, and different from, the proper distribution of goods and burdens in society, and Young pays particular attention to the ways in which decisions are made in society, to the societal division of labor, and to the way in which the culture perpetuates oppression. Her analysis of oppression is much more concrete, picking up the details and nuances of the lived experiences of oppression rather than the general theory. She wants us to see the specific ways in which people are oppressed because of their race, their gender, their sexual orientation. Understanding the concrete faces of oppression is an important step toward overcoming such oppression.
Young draws a key distinction between “theoretical claims” about justice and “situated claims.” Traditionally, discussions about justice have assumed a theoretical standpoint that promised objectivity and neutrality. Recall, for example, Rawls’ account of the original position and the veil of ignorance. By stripping the moral agent of all individuality by putting actual identity behind the veil of ignorance, Rawls’ theory lays claim to an impartiality that, in Young’s eyes, is misleading. She criticizes Rawls and others in this tradition, maintaining that it is, first, an impossibility and, second, a “fiction.” Impartiality cannot really be achieved. What happens instead is that individuals claiming such impartiality exclude all those characteristics that are different from their own and unwittingly treat their own limited viewpoint as the impartial standpoint from which all of morality can be judged. In doing so, so-called impartial theories often perpetuate the hierarchical power structure of society. Thus the apparently neutral standpoint is really a particular standpoint dressed up in the clothing of impartiality. What Young proposes instead is that our discussion of justice be grounded in an awareness of the specific social, political, and economic conditions of our society.
Young does not offer an alternative theory of justice, to be ranked alongside Rawls and others; rather, she offers particular studies of injustice and points to directions in specific cases for improving justice. (Indeed, she even characterizes her work as an anti-theory.) Consider the issue of affirmative action. Both defenders and critics of affirmative action see the issue primarily in terms of whether discrimination is ever justified. Young, on the other hand, argues that the primary issue is not discrimination but oppression. The fundamental question of justice, then, is what we can do to overcome oppression. Once the question has been posed in this way, affirmative action in Young’s eyes ceases to be objectionable. Indeed, we can discriminate among groups and treat them differently if the goal is to overcome oppression. The problem, she maintains, is not discrimination but oppression.
Criminal Justice
We have
been examining competing approaches to justice in the preceding sections, but
there is another issue of justice that those discussions often neglect: the
justice that we seek when someone has broken the law, has
committed a crime. Let’s briefly
consider this issue and the competing accounts of justice that have been
advanced in response to wrongdoing.
Retributive Justice
The
dominant justification of punishment in the
Despite the fact that the lex talionis has some initial plausibility in a small range of cases, we in fact can see that there are many cases where this literal interpretation of the lex talionis makes no sense at all. How, for example, are we to punish those who hijack airplanes? We can’t very well hijack their planes, since they do not have any. What about arsonists? Do we set their homes on fire? Or rapists? Do we rape them in return? Or burglars? Do we steal their money and possessions when they are asleep?
While some would probably advocate those extreme responses, most of us would admit that the literal interpretation of the lex talionis is insufficient for two reasons. First, there are many types of crimes for which it makes no sense that we would try to do the same thing to the perpetrator. The more plausible interpretation of this principle is a metaphorical one that says something like this: the more serious the crime, the more serious the punishment.
But even this will not suffice. We need to recognize that, in the most serious of cases, we may restrain ourselves from extreme punishment because the act of punishing diminishes us. Take rape as an example. To rape a rapist as punishment would be to demean ourselves, the punishers. So, too, we do not torture the sadistic murderer, even though on the basis of some principle of proportionally we believe the murderer deserves to suffer as much as his victims. Again, we restrain ourselves because we would be debasing ourselves to carry out the punishment.
Interestingly, recognizing these two limitations on the lex talionis helps us to find a middle ground in regard to the death penalty. Proponents of the death penalty, if one accepts this principle, are justified in claming that certain criminals have done such horrendous things that they deserve to do. Opponents of the death penalty can admit this, while at the same time arguing that, even if some criminals deserve to die, we do not deserve to kill them. The issue is the effect of the punishment on the punishers.
Those who hold a strictly retributivist account of justice are open to some objections. How should we treat the person who has done something horrible in his youth, subsequently led an exemplary life, and then in old age is apprehended for that crime committed long ago? Retributivists are committed to saying that the magnitude of the crime remains the same, whether committed yesterday or fifty years ago. Other, more forward-looking accounts of punishment would be less likely to punish to the full measure of the law.
Compensatory Justice
When
American citizens of Japanese ancestry were sent to detention camps in
The notion of compensatory justice provides an interesting alternative to retributive justice. In both accounts, the injured party (or family or descendents) has a claim against the wrongdoer. In retributive justice, the injured party “cashes in” this claim by asking for the wrongdoer to suffer in some way proportional to the offense. In compensatory justice, on the other hand, the injured party cashes in the claim by asking the wrongdoer to make up for the injury.
The notion of compensation, however, depends on a principle of equivalency—that money, for example, can compensate for suffering. It works well in those instances where people have suffered monetary damage, but in other cases it is less appropriate.
Restorative Justice
Although retributive justice has occupied central stage in the Anglo-American legal system, it is not the only conception of justice possible. Indeed, critics of retributivism often point to its potential harshness, especially to those cases in which retributive punishment seems to do more harm than good.
A number of
countries, just emerging from harsh and oppressive regimes, have struggled with
the limits of retributive justice and, in the process, have fashioned a
conception of restorative justice that serves as an important counterbalance to
traditional retributivist theory. This was certainly true in a number of Latin
American countries such as
Countries with such a history face a difficult choice when they finally throw off their oppressive regimes. Once the oppressors have been removed from power, the new government can try to bring past offenders to justice for their past wrongdoings. Retributive justice certainly would support such a course of action, but there are distinct costs associated with pursuing retributive justice in such contexts. First, the extent and intensity of trials for past injustices could easily create deep divisions in society, intensifying the level of hatred between past and present regimes. Such trials, far from healing a society, may actually make it more divided. Such animosity and division, many feel, is a moral evil to be avoided if possible. Second, there are often pragmatic considerations that come into play as well. It is not unusual for the new government to need the expertise of the previous regime in the day-to-day business of running the country. If a large number of those who occupied key positions in that earlier government are in jail, then the possibility that they could participate in the rebuilding of the country is eliminated. Despite such moral and pragmatic considerations, most people feel that horrible injustices have been perpetrated and they are convinced that it would be wrong simply to let people go unpunished. The idea that the guilty should not only go unpunished, but could go simply go about their lives as though they had not done those terrible deeds deeply offends our sense of justice. Thus it would seem that such countries face an insurmountable dilemma.
These commissions do not require repentance on the part of those who come forward, nor do they impose punishments. The principal reason for restricting the commissions in this fashion is that otherwise perpetrators would simply not come forward. But critics of these courts of reconciliation have argued that this is simply not enough. They argue that justice has not been done as long as there is no punishment, and especially if there is neither punishment nor retribution.
Justice as Hozho
The theme of balance and harmony has run throughout a number of our discussions of justice, beginning with Plato’s Republic and the harmony of the soul. Restorative justice often seeks to re-establish a harmony in society, and at times counties forgo harsher paths to justice for the goal of harmony.
The notion of justice as harmony also lies at the heart of the Navajo conception of justice, as we indicated in Chapter Three. The Honourable Robert Yazzie, the Chief Justice of the Navajo Nation, describes the traditional Navajo conception of justice and the ceremonies that accompany it: “Our traditional Navajo justice ceremony is called Hozhooji Naat'aanii. Many Navajo words have no corresponding term in English, so I will say that it is a term which refers to talking and planning to restore damaged relationships, guided by a person with wisdom who helps plan things to regain K'e (respect).”
This is a
forward-looking notion of justice, far from the strict retributivism of a
philosopher such as Immanuel Kant. Moreover,
in sharp contrast to standard Western approaches to justice, it involves
healing ceremonies and the spiritual rehabilitation of the offender. Finally, this is a highly participatory
process, involving all affected parties.
Global Justice
Considerations of justice have traditionally been situated within a community, whether this be a local community, a state, or a nation. There is, however, an increasing awareness of global justice, an awareness that may well characterized the twenty-first century.
The term “global justice” is ambiguous. It may, on the one hand, refer to seeking just solutions to problems that are global in nature. On the other hand, it may refer to a global conception of justice, that is, a theory of justice that cuts across national and regional and cultural boundaries. These two senses of justice are related, with global problems serving as the driving force for the development of a global conception of justice. Here we shall examine several areas in which issues of global justice arise. First, we will consider the issue of justice in war, which typically involves trans-national considerations of justice. Second, we will turn to a consideration of the environment as an example of a global problem that in turn gave rise to the field of environmental justice. Third,
we will then conclude with a discussion for the prospects for a global theory of justice.
Justice, War, and Peace
Medieval Christian theologians and philosophers (there often wasn’t a clear division in those days) were quite concerned with the application of the concept of justice to conflicts. The most influential of these was Thomas Aquinas, whose account of just war set the stage for most subsequent discussions of this issue. Much more recently, Michael Walzer’s Just and Unjust Wars (1977) has become the definitive work on this issue. These issues have been a matter of deep concern not just to political philosophers, but also the military and political leaders who must sometimes make decisions about whether to commit their nation to war or not. The premise on which this entire discussion rests is a simple one: war is a terrible, terrible evil, and there must be much in its favor before it becomes justified.
Aquinas and many others distinguish two distinct areas where the concept of justice can be applied to issues of war: the just conditions for entering into a war (called Jus ad bellum, “justice toward war”), including the question of just cause of war; and the just conditions for conducting a war (Jus in bellum, “justice in war”). Let’s look at each of these.
Jus ad bellum: When is it just to enter into a war? Just war theorists from Aquinas to Walzer list a number of conditions. Let’s look briefly at each of these conditions.
The first of these is that there must be a just cause, and this usually means that you have been attacked. Typically, starting a war is never just. Second, you must have the right intention. This condition excludes such actions as going to war to expand your territories or influence; it does permit going to war to stop aggression. It is very important for a country to have a clear idea of what it is trying to accomplish by going to war. Is it simply to stop the aggression?
Third, the war must be publicly declared by a lawful authority such as a head of state. Part of the rationale for this requirement is to prevent segments of a country (such as the military) from committing the nation to conflict without an adequate decision-making process. It also prevents pursuing wars in secret without the consent of the whole nation.
Fourth, war must be the last resort. If it is possible to achieve your just ends of other means such as blockades or diplomatic pressures, then it is unjust to resort to war.
Fifth, there must be some probability of success before you are justified in going to war. Here the rationale is simple: war is such an evil that it ought not to be undertaken if there is not some chance of bringing about a significant good.
Sixth and finally, there must be proportionality between the possible benefits of war and the amount of pain and suffering and death that the war will cause.
If all of these conditions are met, then entering into a war is just.
Jus in bellum: The Just Conduct of War. Once a country has entered into a war justly, there still remain important moral considerations about how the war may be conducted. Let’s look at the conditions typically outlined as the conditions necessary for the just conduct of war. There are three such conditions.
First, we must always conduct war in such a way that we discriminate between combatants and civilians. This is one of the most basic rules for conducting a war properly. Civilians cannot be targeted for attack, nor can they be used as human shields to deter enemy attacks. Most just war theorists interpret this condition in such a way as to permit unavoidable collateral civilian casualties, although exactly where the line is to be drawn here becomes an contentious issue.
Consider an example. In attacking an enemy, there is the least chance of civilian casualties if the attack is conducted by ground soldiers. If low-level air attacks are used, the chances of civilian casualties increases but casualties to one’s own forces go down. If high-level air power is used, the chances of civilian casualties become even greater and the safety of one’s own forces increases greatly. The question that then arises is this: in the conduct of war, to what extent is a country justified in trading off increased civilian casualties for increased safety of its own military personnel?
Second, there must be a principle of proportionality in the conduct of war. Countries should only use as much force as is necessary for the achievement of their just goals. This excludes massive attacks when the legitimate goals of the conflict are minor. Often, when this is ignored, we see local conflicts grow into much larger wars simply by their own momentum.
Third and finally, just wars must be conducted in a way that uses no means that are evil in themselves. In recent decades, there has been a consensus developing among most nations that biological warfare agents such as smallpox and anthrax are forbidden because they are means that are evil in themselves. In the Balkans, we saw rape used as a means of war, intended to destroy family and civic structures and thereby destroy the enemy, and such means clearly fall into the category of means that are evil in themselves: there are no circumstances in which their use is permissible. Many would include torture among those means that are evil in themselves.
These
conditions of a just war have been shaped over the years to fit the traditional
model of large nation states. In the
late twentieth and the beginning of the twenty-first century, we have seen
situations arise which this doctrine of just war was not originally designed to
cover. Let’s briefly consider two of
those here.
Humanitarian interventions. It’s clear that just war theory specifies the conditions under which a nation can respond to an attack. But what do powerful nations do when they see grave injustices, such as genocide, occurring in other countries? It seems to violate our basic sense of justice and decency simply to stand by and allow such things to happen, despite the fact that the attacks are not against our own nation. Typically, diplomatic and economic pressure are the first lines of offense here, but in some situations they have relatively little impact on the situation. Non-military interventions may sometimes make a difference, but at least in some cases nothing short of military intervention offers the hope of protecting the innocent in such situations.
Are nations who are not directly attacked ever justified in intervening militarily for humanitarian reasons to prevent the loss of civilian lives? Does this count as a “just cause” for entering an armed conflict? The answer that has emerged in the West is an affirmative one: sometimes third-party military intervention for humanitarian intervention may be justified in order to save the lives of innocent people. Typically, this is done under the sanction of some multinational organization such as the UN or NATO, in part to prevent it from degenerating into some kind of nationalistic campaign. Within this context, all the conditions for just war will continue to apply.
Terrorist threats. Traditionally, war has taken place between
nation states. What happens when a
nation is attacked by an entity that is not a state? Consider the Taliban attacks against the
So, too, terrorists typically do not distinguish between military and civilian targets. Indeed, they often prefer to attack civilian targets. They are easier to attack with fewer casualties, and attacks against civilian targets can often bring terror to the entire population. One of the principal objections to terrorism, from the standpoint of just war theory, is that it often ignores the crucial distinction between combatants and civilians. Not only does it target civilians, but terrorists often themselves hide out among civilian populations and, because they do not fight in uniform, the line between civilians and terrorists is often blurred.
Jus post bellum: A Just Peace. Although typically the discussion of justice and war has been limited to jus ad bellum and jus in bellum, the classical sources also contain a discussion of a third type of justice: justice in peace. According to Brian Orend, there are five conditions for a just peace: just cause for termination; right intention; public declaration and legitimate authority; discrimination; and proportionality. A just cause for peace exists when the rights that were originally violated are now restored. The right intention excludes motives of revenge against the defeated, and both victors and vanquished must be subjected to the same laws. This precludes, for example, holding the defeated accountable for war crimes but not doing the same thing for yourself and your allies. Whatever punishment is exacted must discriminate appropriately between general citizens and military personnel and, within the military, between those responsible for prosecuting the war and those not in leadership positions. Finally, a just peace is marked by proportionality, where punishments exacted are proportional to the severity of the offense.
One of the
most intriguing aspects of the notion of a just peace is that it can guide the conduct
of a war. Faced with difficult
decisions, national leaders can ask themselves which alternative will increase
the possibility of just peace at the end of the conflict. In the American Civil War, we saw the way in
which certain actions, such as
War is not the only problem that crosses national borders and raises issues about justice beyond borders. Let’s turn to a consideration of other global problems and issues of global justice.
Global Problems
One of the principal factors contributing to the emergence of a global conception of justice is the emergence of ethical issues with a global dimension as well as an increasing awareness of the global nature of many existing ethical problems.
The Environment. Consider the emerging field of environmental justice, a field well grounded in an awareness of the global nature of both ethical problems and their solutions. Increasingly, philosophers and others working in this area have pointed to the way in which problems such as famine and atmospheric and water pollution transcend national boundaries in several ways. We can see this clearly in many cases of environmental pollution. Small, developing countries may feel the effects of large, highly industrialized countries in at least two ways. First, they may experience the effects of such pollution directly through, for example, reduced air and water quality that is directly traceable back to developed countries as its point of origin. Second, and more frequently, they may experience the polluting effects of foreign-owned industry in their own country, since highly industrialized countries often locate factories in developing nations in order to avoid the more stringent labor and environmental regulations they encounter at home.
Just as there is a growing awareness that many problems are global, so too there is a growing consensus that the solution to those problems is global as well. No single country can solve, for example, the problem of atmospheric pollution, even for itself, because no one owns or controls the atmosphere. Individual countries can, of course, reduce atmospheric pollution that originates within their own borders, and this may make a significant difference in their air quality. However, they are still subject to the effects of pollution emitted into the atmosphere by other countries, and there is simply no way that they can solve this problem in isolation.
Nor is the effect of atmospheric conditions limited to the quality of the air we breathe. Atmospheric conditions can have profound effects on farming, and this in turn can have a major impact of food production. If severe climate changes (such as holes in the ozone layer) result in global warming, this can have very negative effects on crop production, which can precipitate famines in certain regions of the globe. Once again, we note that a country may well act responsibly within its own borders and nonetheless suffer the impact of environmentally irresponsible actions taken by those outside its borders. In cases such as these, no solution is possible as long as one stays within the national borders. The question of justice as fairness then emerges quite clearly: is it just, is it fair for some nations (and their populations) to suffer the harmful consequences of actions taken by other nations, especially when those actions are performed with knowing disregard of their negative consequences on other countries?
Economic Exploitation. Many products today are manufactured in a way
that crosses national boundaries. An car advertised as “made in
To what
extent do considerations of economic justice extend beyond national
boundaries? It is clear that some large
international companies use labor and resources from developing countries in
ways that many social theorists label as exploitation. Take the example of Nike. They have been accused by critics of
exploiting labor in
Global Theory
Retributive Justice. One of the earliest attempts to
develop and implement a global notion of retributive justice occurred after
World War II with the
The
The International
Criminal Court, which was established by the Rome Statute in 2002 and scheduled
to become operational in 2003, has been ratified by over sixty nations and
promises “to prosecute people accused of genocide, crimes against humanity and
war crimes.” This is a restricted
jurisdiction, since many crimes do not fall under these three headings, but it
is precisely the jurisdiction that
Distributive Justice. Environmental theorists are leading the way in the development of a theory of global distribute justice. This is an extraordinarily important area, but one in which much work remains to be done. Typically, discussions of distribute justice have tended to occur within the context of nations, for there is rarely any transnational apparatus for controlling the distribution of resources and opportunities. Individual countries, for example, may redistribute wealth through taxes and other means, but there is no international organization with comparable worldwide authority.
Economists and others are actively engaged in the process of developing a global theory of distributive justice. One of the foremost figures in this area has been Amartya Sen, the Nobel Prize-winning Indian economist who has devoted his life to understanding and articulating the demands of justice and equality within a global economic context.
Issues of global distributive justice emerge in many contexts. Perhaps the most notable of these has been in regard to world hunger. The vast disparity that exists between the affluence of highly industrialized nations and the poverty and hunger of many developing nations raises fundamental issues of justice. Is it fair that so few would have so much, while so many exist in abject poverty?
Consider a second example of this issue: the rise of HIV and AIDS and the price of medicine to combat them. In July, 2002 a United Nations report predicted that AIDS would claim 65 million lives by the year 2020, triple the number who have already died. By then, the death toll from AIDS will rival the death toll from all the wars of the twentieth century combined. Political leaders in affected countries have argued against traditional patent regulations that prevent them from producing anti-AIDS medications, and they maintain that argue that it is unjust for such companies to charge such high prices that countries often cannot afford to provide medicines to much of their population.
Two of the most prominent attempts to articulate global theories of justice come from rights-based theories and from utilitarianism. Henry Shue, for example, has argued in Basic Rights that everyone has certain positive rights, including the right to subsistence. Peter Singer, on the other hand, has forcefully articulated the utilitarian case for a global theory of economic justice, especially in regard to the issue of world hunger.
Conclusion
The concept of justice is one of the most fundamental concepts in the moral life. Little children appeal to it (“it’s not fair that she gets two pieces of cake”) just as critics of multinational corporations make use of it (“Paying workers twenty cents an hour is unjust!”). We find ourselves facing two distinct kinds of questions. The first concerns precisely what we mean by justice, and here philosophers and social scientists economists can cooperate in articulating the precise meaning of justice. The second concern the implementation of justice, how we make the world a just place to live. This is an issue that concerns everyone: politicians, religious leaders, and everyday citizens. As we shall see in our concluding chapter, the implementation of just social and economic and political structures is the foundation of a lasting world peace.
Bibliographical Essay
For web-based resources on justice, see the page of Justice on Ethics Updates: http://ethics.sandiego.edu/theories/justice/. This includes original texts, articles, and videos of contemporary philosophers discussing the issue of justice.
The literature on justice is vast, stretching back to Plato’s dialogues to the latest post-modernist critiques of justice. Here are some of the highlights.
Anthologies
include Morality and Social Justice:
Point – Counterpoint, edited by Carol C. Gould, James P. Sterba, William
Gaston, Milton Fiske. Tibor
R. Machan, Robert Solomon, Alison M. Jaggar (Lanham: Rowman and Littlefield,
1994) Robert C.
Solomon and Mark C. Murphy, What Is
Justice?, 2nd ed. (New
York: Oxford University Press, 1999); Jonathan Westphal,
ed., Justice (Indianapolis: Hackett,
1996); The Just Society, edited by
Ellen Frankel Paul, Fred Miller, Jr., and Jeffrey Paul (Needham Heights:
Cambridge University Press, 1995); Milton Fisk, Justice (Atlantic Highlands: Humanities Press, 1993); Will
Kymlicka, ed., Local Justice: How
Institutions Allocate Scarce Goods and Necessary Burdens (Newbury Park: Sage.
1992); Klaus R. Scherer, ed., Justice:
Interdisciplinary Perspectives (New York: Cambridge University Press, 1992);
James P. Sterba, ed., Justice:
Alternative Political Perspectives, 3rd ed. (Belmont: Wadsworth
Publishing Company, 1998). For an
excellent overview of theories of justice (to which I am indebted in this
presentation), see Julian Lamont, “Distributive Justice,” Stanford Encyclopedia of Philosophy: http://plato.stanford.edu/entries/justice-distributive/.
John Rawls’ conception of justice dominates the literature. See his A Theory of Justice, revised edition (Cambridge: Harvard University Press, 1999), originally published in 1973; Political Liberalism (New York: Columbia University Press, 1996); The Law of People (Cambridge: Harvard University Press, 2001); Collected Papers, edited by Samuel Freeman (Cambridge: Harvard University Press, 1999); Lectures on the History of Moral Philosophy, edited by Barbara Herman (Cambridge: Harvard University Press, 2000).
John Rawls, Justice as
Fairness: A Restatement, edited by Erin Kelly (
Samuel R. Freeman, ed., The
Cambridge Companion to Rawls (Cambridge: Cambridge University Press, 2002);
Reading Rawls: Critical Studies on Rawls'
'A Theory of Justice', edited by Norman Daniels (Palo Alto: Stanford
University Press, 1990); Tomas Pögge, Realizing
Rawls (Ithaca: Cornell University Press, 1990); Robert B. Talisse, On Rawls
(
Among the
many other excellent books on justice, see Onora O’Neill, Bounds of Justice (Cambridge: Cambridge University Press, 2000) for
a tightly-argued case for seeing justice in cosmopolitan terms, and especially
for her discussion of transnational economic justice; Brian Berry, Justice as Impartiality (New York:
Oxford University Press, 1996) and his Culture
and Equality: An Egalitarian Critique of Multiculturalism (Cambridge:
Harvard University Press, 2001); James P. Sterba, Justice for Here and Now (Cambridge: Cambridge University Press,
1998) for both applications of the concept and an attempt to reconcile
apparently conflicting accounts of justice; Robert C. Solomon, A Passion for Justice (Lanham: Rowman
and Littlefield, 1995) for a nuanced treatment of the affective dimension of
justice; Patrick Riley, Leibniz'
Universal Jurisprudence: Justice as the Charity of the Wise (Cambridge:
Harvard University Press, 1996), for a notion of justice based on wisdom and
love instead of the standard contractarian account; Geoffrey Cupit’s Justice as
Fittingness (New York: Oxford, 1996) who argues that injustice is a form of
unfitting treatment; James S. Fishkin, The
Dialogue of Justice. Toward a
Self-Reflective Society (New Haven: Yale University Press, 1993); Jeffrey
Reiman, Justice and Modern Moral
Philosophy (New Haven: Yale University Press, 1990); John E. Roemer, Theories of Distributive Justice (
On Kant and justice, see Thomas E. Hill,
Jr. Respect, Pluralism and Justice:
Kantian Perspectives (
. On the libertarian conception of justice, see especially Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1977); Loren E. Lomasky, Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987); and G. A. Cohen, Self-Ownership, Freedom, and Equality (New York: Cambridge University Press, 1995).
On pluralist conceptions of justice, see Jon Elster, Local Justice: How Institutions Allocate Scarce Goods and Necessary Burdens (Newbury Park: Sage Publishers, 1992); Georgia Warnke, Justice and Interpretation (Cambridge: MIT Press, 1993) discusses the hermeneutical turn in theories of justice; Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1990); David Miller and Michael Walzer, Pluralism, Justice, and Equality (New York: Oxford University Press, 1995); Michael J. Sandel, Liberalism and the Limits of Justice, 2nd ed. (Cambridge: Cambridge University Press, 1996); William A. Galston, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (Cambridge: Cambridge University Press, 2002).
The
literature on race and justice is
extensive. See especially Bernard
Boxill, Blacks and Social Justice,
Revised Edition (Lanham: Rowman and Littlefield, 1992); Gertrude Ezorsky, Racism and Justice: The
Case for Affirmative Action (Ithaca: Cornell University Press, 1991). On reparations, see When Sorry Isn’t Enough: The Controversy over
Apologies and Reparations for Human Injustice (New York:: New York
University Press, 1998)
On just war theory, see the excellent
overview by Brian D. Orend, "War ,“ in the Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/entries/war/). Michael Walzer’s Just and Unjust Wars: A Moral Argument with
Historical Illustrations, 3rd ed. (New York: Basic Books, 1979)
remains the classic text, while Jean B. Elstain’s Just War Theory (New York: New York University Press, 1994) is an
excellent anthology. On Walzer, see
Brian Orend, Michael Walzer on War and
Justice (
On retributive justice, see Robert M. Baird and Stuart E. Rosenbaum, Punishment and the Death Penalty: The Current Debate (Buffalo: Prometheus Books, 1995); Michael Davis, To Make the Punishment Fit the Crime: Essays in the Theory of Criminal Justice (Boulder: Westview Press, 1992); Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 6th ed. (Boston: Allyn & Bacon, 2000).
On environmental justice, see K. S.
Shrader-Frechette. Environmental Justice:
Creating Equity, Reclaiming Democracy (New York: Oxford University Press,
2002); Luke W. Cole and Sheila Foster, From the Ground up: Environmental Racism and
the Rise of the Environmental Justice Movement (New York: New York
University Press, 2000); David Schlosberg, Environmental
Justice and the New Pluralism: The Challenge of Difference for Environmentalism
(New York: Oxford University Press, 1999); Andrew Dobson, Justice and the Environment: Conceptions of
Environmental Sustainability and Dimensions of Social Justice (New York:
Oxford University Press, 1999); Peter S. Wenz Environmental Justice (Albany: State
University of New York Press, 1998); Benjamin J. Richardson, ed., Environmental Justice (New York: Kluwer Academic
Publishers, 1999);
On international justice, see Robin Attfield and Barry Wilkins, eds., International Justice and the Third World (New York: Routledge, 1992); On international economic justice, see Amaryta Sen, On Ethics and Economics (Oxford: Blackwell Publishers, 1989) and Inequality Reexamined (Cambridge: Harvard University Press, 1995) and, most recently, Development as Freedom (Garden City: Anchor Books, 2000).
Discussion Questions
1.
Review the just conditions for entering into a
war. Which of those have been met in the
2.
Imagine that you are the CEO of a major
3. Consider your response to Question #33 in our initial survey: “Justice consists of treating everybody exactly the same.” In what kinds of situations, if any, would justice demand treating people differently?
4. Recall your response to Question #34: “A just society is one in which everyone has the maximal amount of liberty.” When is the government justified in restricting liberty? What is the justification for such restrictions? How would a libertarian and a liberal differ on this issue?
5. Our world today is characterized by vast economic differences between rich countries and poor countries. Are these differences injustices? Why or why not? How should we respond to them?
6. When, if ever, are we justified in intervening to prevent injustices beyond our national borders? If, for example, genocide is occurring in another country, to what extent do other nations have an obligation to intervene in such situations?
7. In the movie “Twelve Angry Men,” we see a nuanced portrait of different conceptions of justice. Drawing on the ideas in this chapter, describe the different conceptions of justice that various jurors exemplify.
8.
In the movie, “Long Night’s Journey into Day,” directed
by Frances Reid and Deborah Hoffmann, we see a portrait of justice in