Justice

Today we are going to examine one of the core components of ethics, which is Justice. Yet while we seem to intuitively know what justice is—or at least recognize injustice, at least when we encounter it!—an exact definition is elusive. So is a comprehensive theory of justice, though a number of important attempts have been made to devise one.

We find that Plato took up this question some 2500 years ago. In his book The Republic, Plato has his teacher Socrates ask a just Athenian what “justice” is. The reply: being truthful and paying one’s debts. Plato responds by asking: what happens if a friend asks you to store some weapons for him. Then he comes back later, but not in his right mind. Would it be unjust to withhold the weapons from him? Most would say no, one should not give weapons to a deranged person, even if he or she owns them. Socrates thus concludes simply “paying one’s debts” does not automatically create justice.

Later Socrates considers and rejects other definitions: returning good for good and evil for evil, or the old favorite “might makes right.” What Socrates (and Plato) may have been getting at is that justice requires that a person be in harmony with him- or herself, and exist in harmony with others. However, this does not give us a clear way to define or achieve justice.

But what is justice, anyway? In some ways it seems to be bound up with notions such as “law” and “public order.” Perhaps it may help if we note that different notions of justice and law are found in different arenas. Here are there:

Civil law: laws governing transactions between normal citizens (business, property, marriage, evictions, etc.). These tend to be the concern of the county sheriff.

Criminal law: laws governing punishments for serious violations of the rights of others. These tend to be the concern of state and local police.

War and peace: laws concerning warfare and treaties between nation-states. This tricky zone tends to fall into the domain of the United Nations, the World Trade Organization, and sometimes NGO’s such as the Red Cross/Red Crescent.

(I would also be remiss if I did not note the existence of Church Law in its various forms across the world: Roman Catholic Canon Law, Islamic Shari’ah Law, etc. The nature and impact of these laws have, and continue to, vary significantly depending on location and time period! They could also easily constitute an entire course unto themselves.)

I. So: how do we determine civil justice? We already Socrates’ and Plato’s attempts.

A more recent, and extremely influential, notion came from Jean-Jacque Rousseau in The Social Contract (1762). Here we see justice as coming more from the people and from the society: our laws are not binding because they are a manifestation of Divine Will, so much as they are a utilitarian way for everybody to get along. Here I refrain from stealing not because it is a sin against God, so much as because I know that 1. I do not want you to steal from me, and 2. if everybody starts stealing willy-nilly our system will collapse and we will all be unhappy!

This notion of justice is still very much with us today in the United States.

This Social Contract system of justice was combined with Kant by John Rawls in the 1970’s to produce A Theory of Justice. Here, we try to imagine a set of rules to help us govern a society. Normally when doing so, we would probably imagine a society made up of people like ourselves—whatever our race, class, gender, etc. happen to be. What makes Rawls unusual, and what makes him somewhat “Kant flavored,” is his use of the notion of a “veil of ignorance”—we are not allowed to know if the people we are drawing up laws for are rich or poor, or men or women. We also do not know their race or location. In this way, we may be able to devise laws that are uniformly just, and which do not favor one group over another. Rawls further assumes that within this society, laws will be applied fairly (without regard to race, gender, or riches), and laws should be applied in such a way as to be of maximum benefit to the least advantaged.

Note that some suggest that Rawls’ idea may not be as great as it at first sounds. For example, even if I set up such a race/gender/class blind system, I will still be doing so based on what I imagine the “Good Life” should be… which will have as its starting point my own culture-, class-, and gender-bound imagination!

These are not the only ways society can be set up. Here are some other ways:

Egalitarianism: all people are treated completely equally. All pay is the same, and if there are benefits or hardships that are not divisible, they are handed out via lottery.

Utilitarianism/Welfare: rewards are given where they can do the most overall good. For example, scholarships would be given to the people most likely to succeed and go on to benefit the community. (This assumes some sort of agency to make this decision.)

Libertarian/Free Market: rewards are given to those who are best able to exploit them in an efficient manner, or to those who can purchase them. (Again, this assumes some sort of agency to guarantee order, fair play, and ejection of hoarders.)

II. We turn now to criminal justice. The old style of this was retributive justice, also known as the “lex talionis,” or “an eye for an eye, and a tooth for a tooth.” Such notions go all the way back to Babylon and the Code of Hamurabbi and, later, the Jewish Law. While this seems harsh at first, it beat what probably came before: the feud!

We see further development of criminal justice first in Roman and then in the Medieval period. This “traditional justice” is often seen in movies as being quite harsh (a la “Braveheart” or “The Name of the Rose”), replete with lots of capricious torture. This is not exactly how it worked, at least for routine offenses. Note that there were actually several aspects to this system:

1. Limited torture (intended more as a trial by ordeal)
2. Double punishment: first for the actual crime, and second for disrespecting the law of the king (and perhaps God Himself, since the king was sometimes viewed as God’s agent.).
3. Public punishment, in which sometimes the people would intervene.

Of course, once again we see this moderated by Rousseau’s social contract, as well a more menacing notion of “personal readjustment” through helpful psychiatry. There is also a growing question of does harsh punishment degrade or damage us (both as individuals and as a society) more than it helps us. Indeed, this question cuts across utilitarian, duty, egoist, and religious ethical grounds.

One alternative to retributive justice is compensatory justice. Instead of simply punishing the wrong-doer, they a better path may be a fine of some sort. We often see this in cases of medical malpractice, where money is exchanged for inconvenience, injury, and/or pain. It is also found in the notion of “reparations” in war or infringement of civil liberties.

A fairly new notion is that of restorative justice. Here, instead of going simply for punishment or compensation, the goal is more one of acknowledgement of the deed. (Perhaps restorative and compensatory justice could be combined in some way for the greater good of all involved, though this is not really explored in our textbook.)

III. Just War (and Just Peace) theory: Thomas Aquinas (and his Muslim contemporaries) spent a considerable amount of time considering the problem of war. Two key issueus that concerned them were:

1. When is it just, or justifiable, to enter into a war? And
2. What is the just, or proper, way to pursue a war?

In terms of the “just war,” most consider that it is permissible to fight a war under the following conditions:

1. There is a just cause—normally, when one is attacked.
2. There must be right intention—normally, to defend against an attacker. One is NOT allowed to provoke an attack with the intention of then expanding one’s territories.
3. The war must be declared by lawful authority, normally the head of state.
4. It should be done only as a last resort, after diplomacy or lesser means have failed.
5. There must be some probability of success.
6. There should be proportionality between the benefit and the pain produced.

In terms of conduct:

1. One must discriminate between soldier and civilians. Civilians cannot be intentionally targeted, and they cannot be used as hostages or human shields.
2. There should be proportionality of force; one should not use nuclear weapons for a minor border dispute!
3. One should not use means that are intrinsically evil unto themselves, such as rape and perhaps torture.

Over time, we have seen further development to include “other” circumstances:

1. Humanitarian interventions in civil affairs.

2. The problem of terrorism.

A final, and fairly recent, addition to “Just War” theory is that of the “Just Peace”: the notion that the final state of the loser should not be so onerous as to really prevent cessation of hostilities (as in WWI’s Treaty of Versailles, or perhaps some aspects of the American Civil War). The goal of war, and peace, should be justice and cessation of hostilities—not vengeance!