Justice is the virtue of fairness.
Many informal calls for justice are appeals for symmetry. For example: “an eye for an eye, a tooth for a tooth”, “settling the score”, “getting even”, “turnabout is fair play”, “its only fair”, and the scales of lady justice all seek to restore a balance. The idea that a fair exchange is just is also an appeal to symmetry.
Abusing power—an asymmetrical relationship—is typically the cause of injustice. A shift in power, including state sponsored sentencing or home-grown revenge is often used in an attempt to restore justice.
Preventing and Remediating Loss
Many legal constructs are intended to prevent loss. For example, traffic regulations help to prevent traffic accidents, contracts help to clarify expectations and avoid misunderstandings about an impending transaction.
When a loss occurs, steps are taken to remedy the loss. Returning stolen goods, paying fines, or imposing some pain or suffering on the offender intended to be equivalent to the pain inflicted on the victim.
The Virtues of Justice
The symmetry demanded by justice affirms the inherent equality of all people.
Theories of Justice
Efforts to provide universal rules for determining justice have resulted in several theories of moral justice. These include:
- Utilitarianism ̶ an ethical theory holding that the proper course of action is the one that maximizes the overall "good" of the greatest number of individuals. This consequentialism theory contrasts with the concept of categorical moral principles ̶ which hold that there are some things we simply don't do.
- Libertarianism ̶ the political philosophy that holds individual liberty as the basic moral principle of society.
- Explored in "Justice: What's the Right Thing To Do", Episode 3
- Philosopher John Locke argued that individuals have certain unalienable rights—to life, liberty, and property—which were originally given to us as human beings in the “state of nature.”
- Philosopher Immanuel Kant advocated a strict concept of freedom, based on the concept of autonomy—acting according to laws you give yourself. This is contrasted with heteronomy, having to act according to (often selfish) desires you have not chosen.
- Kant also advocated a strict conception of morality where the moral worth of an action depends on motive. You must do the right thing for the right reason. The only moral motive is a sense of duty, not selfish inclination.
- Furthermore, Kant objects to considering humans only as means to an end, and believes humans are ends in themselves. This is the origin of the respect and dignity people intrinsically deserve. He considered the reason you do something important and distinguishes between hypothetical imperatives—instrumental actions undertaken as a means to an end—and categorical imperatives—actions taken without reliance on any further purpose.
- Kant stated three formulations of the categorical imperative that he considered equivalent:
- The formula of Universal Law: “Act only on that maxim whereby you can at the same time will that it could become a universal law.”
- The formula of Humanity as End: “Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time, as an end.”
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- Together these three contrasts form Kant’s supreme principle of morality.
- Motive: The only moral motive is duty, not an inclination.
- Will: The only moral will is autonomous choice, not heteronymous acquiescence.
- Reason: The only moral reason for acting is a categorical imperative, not a hypothetical imperative.
- Modern Philosopher John Rawls wrote A Theory of Justice where he develops the theory of Justice as fairness. The moral force of a contract depends on obligation (autonomous consent) and mutual benefits (reciprocity). However in real contracts one of the parties typically has unfair bargaining power or benefits from differences in knowledge. This prevents attaining a true symmetry. Therefore Rawls invokes the mechanism of the veil of ignorance to attain an original position of equality in conceiving a hypothetical contract between equals.
- Rawls' ideas are explored in "Justice: What's the Right Thing To Do", Episode 7
- John Rawls’ egalitarian theory of Distributive Justice is based on principles developed from considering an original position of equality conceived behind a veil of ignorance. This leads to his Difference Principle that only allows those inequalities to persist that help the least well off. He states the Difference Principle as: “Those who have been favored by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out.”
- These ideas are explored in "Justice: What's the Right Thing To Do", Episode 8
- Aristotle believed justice requires giving people their due; what they deserve. He used teleological reasoning—reasoning from the goal or purpose—to best allocate scarce resources. The best flutes, for example, should go to the best flute players, because the purpose of a flute is to be played well.
- Communitarians argue that, in addition to voluntary and universal duties, we also have obligations of loyalty to community and family members.
- Explored in "Justice: What's the Right Thing To Do", Episode 11
- Attaining moral justice requires us to discuss different conceptions of what good is. The method of Reflective Equilibrium may help us advance toward a shared concept of good.
- Explored in "Justice: What's the Right Thing To Do", Episode 12
- Retributive justice is a theory of justice that considers punishment, if proportionate, is a morally acceptable response to crime, justified by the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society.
- Restorative justice (also sometimes called "reparative justice") is an approach to justice that focuses on the needs of victims, offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender.
While compelling logic supports each of these theories, troublesome examples demonstrate their limitations.
Part 1: Study each of the theories of justice listed above.
Part 2: Which theory comes closest to describing your own intuitive sense of justice? Why?
Part 3: Choose a case from this list of thought provoking cases or some other documented and difficult case to study. Apply the theory of justice you identified in part 2 to this case. What outcome would that theory of justice arrive at? Is that the outcome the courts arrived at? Comment on your intuitive sense of justice in this case and how that agrees with or differs from the theoretical and actual outcomes.
Part 4: What mechanisms, if any, work to align legal justice with moral justice?
Students interested in learning more about the virtues of justice may be interested in the following materials:
- Lee, Harper (1960). To Kill a Mockingbird. United States: J. B. Lippincott & Co.
- JusticeHarvard.org - Harvard University's Justice with Michael Sandel
- Rawls, John (2001). Justice as Fairness: A Restatement. Belknap Press of Harvard University Press. p. 240. ISBN 978-0674005112.
- Bharara, Preet (March 19, 2019). Doing Justice: A Prosecutor's Thoughts on Crime, Punishment, and the Rule of Law. Knopf. p. 368. ISBN 978-0525521129.
- John Rawls, A Theory of Justice (revised edn, Oxford: Oxford University Press, 1999), p. 3