Justice is a concept of
moralMorality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
rightness based on
ethicsEthics, also known as moral philosophy, is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice and crime, etc.Major branches of ethics include:...
,
rationalityIn philosophy, rationality is the exercise of reason. It is the manner in which people derive conclusions when considering things deliberately. It also refers to the conformity of one's beliefs with one's reasons for belief, or with one's actions with one's reasons for action...
,
lawLaw is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
,
natural lawNatural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
,
religionReligion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
, or equity, along with the punishment of the breach of said ethics;
justice is the act of being just and/or fair.
Concept of justice
According to most contemporary theories of justice, it is overwhelmingly important:
John RawlsJohn Bordley Rawls was an American philosopher and a leading figure in moral and political philosophy. He held the James Bryant Conant University Professorship at Harvard University....
claims that "Justice is the first virtue of social institutions, as truth is of systems of thought." Justice can be thought of as distinct from and more fundamental than benevolence,
charityIn Christian theology charity, or love , means an unlimited loving-kindness toward all others.The term should not be confused with the more restricted modern use of the word charity to mean benevolent giving.- Caritas: altruistic love :...
,
mercyMercy is broad term that refers to benevolence, forgiveness and kindness in a variety of ethical, religious, social and legal contexts.The concept of a "Merciful God" appears in various religions from Christianity to...
,
generosityGenerosity is the habit of giving freely without expecting anything in return. It can involve offering time, assets or talents to aid someone in need...
or
compassionCompassion is a virtue — one in which the emotional capacities of empathy and sympathy are regarded as a part of love itself, and a cornerstone of greater social interconnection and humanism — foundational to the highest principles in philosophy, society, and personhood.There is an aspect of...
. Justice has traditionally been associated with concepts of
fateDestiny or fate refers to a predetermined course of events. It may be conceived as a predetermined future, whether in general or of an individual...
,
reincarnationReincarnation best describes the concept where the soul or spirit, after the death of the body, is believed to return to live in a new human body, or, in some traditions, either as a human being, animal or plant...
or
Divine ProvidenceIn Christian theology, divine providence, or simply providence, is God's activity in the world. " Providence" is also used as a title of God exercising His providence, and then the word are usually capitalized...
, i.e. with a life in accordance with the cosmic plan. The association of justice with fairness has thus been historically and culturally rare and is perhaps chiefly a modern innovation [in western societies].
Studies at UCLA in 2008 have indicated that reactions to fairness are "wired" into the brain and that, "Fairness is activating the same part of the brain that responds to food in rats... This is consistent with the notion that being treated fairly satisfies a basic need". Research conducted in 2003 at
Emory UniversityEmory University is a private research university in metropolitan Atlanta, located in the Druid Hills section of unincorporated DeKalb County, Georgia, United States. The university was founded as Emory College in 1836 in Oxford, Georgia by a small group of Methodists and was named in honor of...
,
Georgia, USAGeorgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
, involving Capuchin Monkeys demonstrated that other cooperative animals also possess such a sense and that "
inequity aversionInequity aversion is the preference for fairness and resistance to incidental inequalities. The social sciences that study inequity aversion include sociology, economics, psychology, anthropology and ethology.-Human studies:...
may not be uniquely human" indicating that ideas of fairness and justice may be instinctual in nature.
Variations of justice
UtilitarianismUtilitarianism is an ethical theory holding that the proper course of action is the one that maximizes the overall "happiness", by whatever means necessary. It is thus a form of consequentialism, meaning that the moral worth of an action is determined only by its resulting outcome, and that one can...
is a form of
consequentialismConsequentialism is the class of normative ethical theories holding that the consequences of one's conduct are the ultimate basis for any judgment about the rightness of that conduct...
, where punishment is forward-looking. Justified by the ability to achieve future social benefits resulting in crime reduction, the moral worth of an action is determined by its outcome.
Retributive justiceRetributive justice is a theory of justice that considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society....
regulates proportionate response to crime proven by lawful evidence, so that punishment is justly imposed and considered as morally correct and fully deserved.
The law of
retaliationRevenge is a harmful action against a person or group in response to a grievance, be it real or perceived. It is also called payback, retribution, retaliation or vengeance; it may be characterized, justly or unjustly, as a form of justice.-Function in society:Some societies believe that the...
(
lex talionis) is a military theory of retributive justice, which says that reciprocity should be equal to the wrong suffered; "life for life, wound for wound, stripe for stripe."
Restorative justiceRestorative 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...
is concerned not so much with retribution and punishment as with (a) making the victim whole and (b) reintegrating the offender into society. This approach frequently brings an offender and a victim together, so that the offender can better understand the effect his/her offense had on the victim.
Distributive justiceDistributive justice concerns what some consider to be socially just allocation of goods in a society. A society in which incidental inequalities in outcome do not arise would be considered a society guided by the principles of distributive justice...
is directed at the proper allocation of things — wealth, power, reward, respect — among different people.
Understandings of justice
Understandings of justice differ in every
cultureCulture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
, as cultures are usually dependent upon a shared
historyHistory is the discovery, collection, organization, and presentation of information about past events. History can also mean the period of time after writing was invented. Scholars who write about history are called historians...
,
mythologyThe term mythology can refer either to the study of myths, or to a body or collection of myths. As examples, comparative mythology is the study of connections between myths from different cultures, whereas Greek mythology is the body of myths from ancient Greece...
and/or
religionReligion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
. Each culture's ethics create values which influence the notion of justice. Although there can be found some justice principles that are one and the same in all or most of the cultures, these are insufficient to create a unitary justice apprehension.
Justice as harmony
In his dialogue
Republic,
PlatoPlato , was a Classical Greek philosopher, mathematician, student of Socrates, writer of philosophical dialogues, and founder of the Academy in Athens, the first institution of higher learning in the Western world. Along with his mentor, Socrates, and his student, Aristotle, Plato helped to lay the...
uses
Socrates Socrates was a classical Greek Athenian philosopher. Credited as one of the founders of Western philosophy, he is an enigmatic figure known chiefly through the accounts of later classical writers, especially the writings of his students Plato and Xenophon, and the plays of his contemporary ...
to argue for justice that covers both the just person and the just City State. Justice is a proper, harmonious relationship between the warring parts of the person or city. Hence Plato's definition of justice is that justice is the having and doing of what is one's own. A just man is a man in just the right place, doing his best and giving the precise equivalent of what he has received. This applies both at the individual level and at the universal level. A person's soul has three parts – reason, spirit and desire. Similarly, a city has three parts – Socrates uses the parable of the chariot to illustrate his point: a chariot works as a whole because the two horses’ power is directed by the charioteer. Lovers of wisdom – philosophers, in one sense of the term –
should rulePhilosopher kings are the rulers, or Guardians, of Plato's Utopian Kallipolis. If his ideal city-state is to ever come into being, "philosophers [must] become kings…or those now called kings [must]…genuinely and adequately philosophize" .-In Book VI of The Republic:Plato defined a philosopher...
because only they understand what is
goodIn religion, ethics, and philosophy, the dichotomy "good and evil" refers to the location on a linear spectrum of objects, desires, or behaviors, the good direction being morally positive, and the evil direction morally negative. Good is a broad concept but it typically deals with an association...
. If one is ill, one goes to a doctor rather than a psychologist, because the doctor is expert in the subject of health. Similarly, one should trust one's city to an expert in the subject of the good, not to a mere
politicianA politician, political leader, or political figure is an individual who is involved in influencing public policy and decision making...
who tries to gain power by giving people what they want, rather than what's good for them. Socrates uses the parable of the ship to illustrate this point: the unjust city is like a ship in open ocean, crewed by a powerful but drunken captain (the common people), a group of untrustworthy advisors who try to manipulate the captain into giving them power over the ship's course (the politicians), and a
navigatorA navigator is the person on board a ship or aircraft responsible for its navigation. The navigator's primary responsibility is to be aware of ship or aircraft position at all times. Responsibilities include planning the journey, advising the Captain or aircraft Commander of estimated timing to...
(the philosopher) who is the only one who knows how to get the ship to port. For Socrates, the only way the ship will reach its destination – the good – is if the navigator takes charge.
Justice as divine command
Justice as a divine law is commanding, and indeed the whole of morality, is the authoritative command. Killing is wrong and therefore must be punished and if not punished what should be done? A famous paradox called the
Euthyphro dilemmaThe Euthyphro dilemma is found in Plato's dialogue Euthyphro, in which Socrates asks Euthyphro: "Is the pious loved by the gods because it is pious, or is it pious because it is loved by the gods?"...
essentially asks: is something right because God commands it, or does God command it because it's right? If the former, then justice is arbitrary; if the latter, then morality exists on a higher order than God, who becomes little more than a passer-on of moral knowledge. Some Divine command advocates respond by saying that the dilemma is false: goodness is the very nature of God and is necessarily expressed in His commands. Another response is that the laws and moral principles are objective and self evident in nature. God embodies these laws and is therefore neither higher nor lower than the law. He sets an example for the good people among men to follow His way and also become an embodiment of the highest principles and morals.
Justice as natural law
For advocates of the theory that justice is part of natural law (e.g.,
John LockeJohn Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...
), it involves the system of consequences that naturally derives from any action or choice. In this, it is similar to the laws of physics: in the same way as the Third of Newton's laws of Motion requires that for every action there must be an equal and opposite reaction, justice requires according individuals or groups what they actually deserve, merit, or are entitled to. Justice, on this account, is a universal and absolute concept: laws, principles, religions, etc., are merely attempts to codify that concept, sometimes with results that entirely contradict the true nature of justice.
Justice as human creation
In contrast to the understandings canvassed so far, justice may be understood as a human
creation, rather than a
discovery of harmony, divine command, or natural law. This claim can be understood in a number of ways, with the fundamental division being between those who argue that justice is the creation of
some humans, and those who argue that it is the creation of
all humans.
Justice as trickery
In
Republic by
PlatoPlato , was a Classical Greek philosopher, mathematician, student of Socrates, writer of philosophical dialogues, and founder of the Academy in Athens, the first institution of higher learning in the Western world. Along with his mentor, Socrates, and his student, Aristotle, Plato helped to lay the...
, the character
ThrasymachusThrasymachus was a sophist of Ancient Greece best known as a character in Plato's Republic.-Life, date, and career:...
argues that justice is the interest of the strong—merely a name for what the powerful or cunning ruler has imposed on the people.
Justice as mutual agreement
According to thinkers in the social contract tradition, justice is derived from the mutual agreement of everyone concerned; or, in many versions, from what they would agree to under
hypothetical conditions including equality and absence of bias. This account is considered further below, under ‘Justice as fairness’.
Justice as a subordinate value
According to utilitarian thinkers including
John Stuart MillJohn Stuart Mill was a British philosopher, economist and civil servant. An influential contributor to social theory, political theory, and political economy, his conception of liberty justified the freedom of the individual in opposition to unlimited state control. He was a proponent of...
, justice is not as fundamental as we often think. Rather, it is derived from the more basic standard of rightness,
consequentialismConsequentialism is the class of normative ethical theories holding that the consequences of one's conduct are the ultimate basis for any judgment about the rightness of that conduct...
: what is right is what has the best consequences (usually measured by the total or average
welfareThe term quality of life is used to evaluate the general well-being of individuals and societies. The term is used in a wide range of contexts, including the fields of international development, healthcare, and politics. Quality of life should not be confused with the concept of standard of...
caused). So, the proper principles of justice are those that tend to have the best consequences. These rules may turn out to be familiar ones such as keeping
contractA contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
s; but equally, they may not, depending on the facts about real consequences. Either way, what is important is those consequences, and justice is important, if at all, only as derived from that fundamental standard. Mill tries to explain our mistaken belief that justice is overwhelmingly important by arguing that it derives from two natural human tendencies: our desire to retaliate against those who hurt us, and our ability to put ourselves imaginatively in another's place. So, when we see someone harmed, we project ourselves into her situation and feel a desire to retaliate on her behalf. If this process is the source of our feelings about justice, that ought to undermine our confidence in them.
Theories of distributive justice
Theories of distributive justice need to answer three questions:
- What goods are to be distributed? Is it to be wealth
Wealth is the abundance of valuable resources or material possessions. The word wealth is derived from the old English wela, which is from an Indo-European word stem...
, powerPolitical power is a type of power held by a group in a society which allows administration of some or all of public resources, including labour, and wealth. There are many ways to obtain possession of such power. At the nation-state level political legitimacy for political power is held by the...
, respectRespect denotes both a positive feeling of esteem for a person or other entity , and also specific actions and conduct representative of that esteem. Respect can be a specific feeling of regard for the actual qualities of the one respected...
, some combination of these things?
- Between what entities are they to be distributed? Humans (dead, living, future), sentient
Sentience is the ability to feel, perceive or be conscious, or to have subjective experiences. Eighteenth century philosophers used the concept to distinguish the ability to think from the ability to feel . In modern western philosophy, sentience is the ability to have sensations or experiences...
beings, the members of a single society, nationA nation may refer to a community of people who share a common language, culture, ethnicity, descent, and/or history. In this definition, a nation has no physical borders. However, it can also refer to people who share a common territory and government irrespective of their ethnic make-up...
s?
- What is the proper distribution? Equal, meritocratic
Meritocracy, in the first, most administrative sense, is a system of government or other administration wherein appointments and responsibilities are objectively assigned to individuals based upon their "merits", namely intelligence, credentials, and education, determined through evaluations or...
, according to social statusIn sociology or anthropology, social status is the honor or prestige attached to one's position in society . It may also refer to a rank or position that one holds in a group, for example son or daughter, playmate, pupil, etc....
, according to needA need is something that is necessary for organisms to live a healthy life. Needs are distinguished from wants because a deficiency would cause a clear negative outcome, such as dysfunction or death. Needs can be objective and physical, such as food, or they can be subjective and psychological,...
, based on property rights and non-aggression?
Distributive justice theorists generally do not answer questions of
who has the right to enforce a particular favored distribution. On the other hand, property rights theorists argue that there is no "favored distribution." Rather, distribution should be based simply on whatever distribution results from non-coerced interactions or transactions (that is, transactions not based upon force or fraud).
This section describes some widely held theories of distributive justice, and their attempts to answer these questions.
Egalitarianism
According to the egalitarian, justice can only exist within the coordinates of equality. This basic view can be elaborated in many different ways, according to what goods are to be distributed—wealth, respect, opportunity—and what they are to be distributed equally between—individuals, families, nations, races, species. Commonly held egalitarian positions include demands for equality of opportunity and for
equality of outcomeEquality of outcome, equality of condition, or equality of results is a controversial political concept. Although it is not always clearly defined, it is usually taken to describe a state in which people have approximately the same material wealth or, more generally, in which the general conditions...
. It affirms that freedom and justice without equality are hollow and that equality itself is the highest justice.
At a cultural level, egalitarian theories have developed in sophistication and acceptance during the past two hundred years. Among the notable broadly egalitarian philosophies are socialism, communism, anarchism,
left-libertarianismLeft-libertarianism names several related but distinct approaches to politics, society, culture, and political and social theory, which stress equally both individual freedom and social justice.-Schools of thought:...
, and progressivism, all of which propound economic, political, and legal egalitarianism, respectively. Several egalitarian ideas enjoy wide support among intellectuals and in the general populations of many countries. Whether any of these ideas have been significantly implemented in practice, however, remains a controversial question.
One argument is that liberalism provides democracy with the experience of civic reformism. Without it, democracy loses any tie─argumentative or practical─to a coherent design of public policy endeavoring to provide the resources for the realization of democratic citizenship.
Giving people what they deserve
In one sense, all theories of distributive justice claim that everyone should get
what they deserveDesert in philosophy is the condition of being deserving of something, whether good or bad.-Nomenclature:The word is related to justice, revenge, blame, punishment and many topics central to moral philosophy...
. Theories disagree on the basis for deserving. The main distinction is between theories that argue the basis of just deserts is held equally by everyone, and therefore derive egalitarian accounts of distributive justice—and theories that argue the basis of just deserts is unequally distributed on the basis of, for instance, hard work, and therefore derive accounts of distributive justice by which some should have more than others. This section deals with some popular theories of the second type.
According to
meritocraticMeritocracy, in the first, most administrative sense, is a system of government or other administration wherein appointments and responsibilities are objectively assigned to individuals based upon their "merits", namely intelligence, credentials, and education, determined through evaluations or...
theories, goods, especially wealth and
social statusIn sociology or anthropology, social status is the honor or prestige attached to one's position in society . It may also refer to a rank or position that one holds in a group, for example son or daughter, playmate, pupil, etc....
, should be distributed to match individual
merit, which is usually understood as some combination of talent and hard work. According to
needA need is something that is necessary for organisms to live a healthy life. Needs are distinguished from wants because a deficiency would cause a clear negative outcome, such as dysfunction or death. Needs can be objective and physical, such as food, or they can be subjective and psychological,...
s-based theories, goods, especially such basic goods as food, shelter and medical care, should be distributed to meet individuals'
basic needsThe basic needs approach is one of the major approaches to the measurement of absolute poverty. It attempts to define the absolute minimum resources necessary for long-term physical well-being, usually in terms of consumption goods. The poverty line is then defined as the amount of income...
for them.
MarxismMarxism is an economic and sociopolitical worldview and method of socioeconomic inquiry that centers upon a materialist interpretation of history, a dialectical view of social change, and an analysis and critique of the development of capitalism. Marxism was pioneered in the early to mid 19th...
can be regarded as a needs-based theory on some readings of
Marx'sKarl Heinrich Marx was a German philosopher, economist, sociologist, historian, journalist, and revolutionary socialist. His ideas played a significant role in the development of social science and the socialist political movement...
slogan "
from each according to his ability, to each according to his needFrom each according to his ability, to each according to his need is a slogan popularised by Karl Marx in his 1875 Critique of the Gotha Program. In German, "Jeder nach seinen Fähigkeiten, jedem nach seinen Bedürfnissen!"...
". According to
contribution-based theories, goods should be distributed to match an individual's contribution to the overall social good.
Fairness
In his
A Theory of Justice,
John RawlsJohn Bordley Rawls was an American philosopher and a leading figure in moral and political philosophy. He held the James Bryant Conant University Professorship at Harvard University....
used a
social contractThe social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...
argument to show that justice, and especially distributive justice, is a form of fairness: an
impartial distribution of goods. Rawls asks us to imagine ourselves behind a
veil of ignorance that denies us all knowledge of our personalities, social statuses, moral characters, wealth, talents and life plans, and then asks what theory of justice we would choose to govern our society when the veil is lifted, if we wanted to do the best that we could for ourselves. We don’t know who in particular we are, and therefore can’t bias the decision in our own favour. So, the decision-in-ignorance models fairness, because it excludes selfish
biasBias is an inclination to present or hold a partial perspective at the expense of alternatives. Bias can come in many forms.-In judgement and decision making:...
. Rawls argues that each of us would reject the
utilitarianUtilitarianism is an ethical theory holding that the proper course of action is the one that maximizes the overall "happiness", by whatever means necessary. It is thus a form of consequentialism, meaning that the moral worth of an action is determined only by its resulting outcome, and that one can...
theory of justice that we should maximize welfare (see below) because of the risk that we might turn out to be someone whose own good is sacrificed for greater benefits for others. Instead, we would endorse Rawls's
two principles of justice:
- Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.
- Social and economic inequalities are to be arranged so that they are both
- to the greatest benefit of the least advantaged, consistent with the just savings principle, and
- attached to offices and positions open to all under conditions of fair equality of opportunity.
This imagined choice justifies these principles as the principles of justice for us, because we would agree to them in a fair decision procedure. Rawls's theory distinguishes two kinds of goods – (1)
libertiesPolitical freedom is a central philosophy in Western history and political thought, and one of the most important features of democratic societies...
and (2) social and economic goods, i.e. wealth, income and power – and applies different distributions to them – equality between citizens for (1), equality unless inequality improves the position of the worst off for (2).
Property rights (non-coercion)/Having the right history
Robert NozickRobert Nozick was an American political philosopher, most prominent in the 1970s and 1980s. He was a professor at Harvard University. He is best known for his book Anarchy, State, and Utopia , a right-libertarian answer to John Rawls's A Theory of Justice...
's influential critique of Rawls argues that distributive justice is not a matter of the whole distribution matching an ideal
pattern, but of each individual entitlement having the right kind of
history. It is just that a person has some good (especially, some property right) if and only if they came to have it by a history made up entirely of events of two kinds:
- 1. Just acquisition, especially by working on unowned things; and
- 2. Just transfer, that is free gift, sale or other agreement, but not theft
In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
(i.e. by force or fraud).
If the chain of events leading up to the person having something meets this criterion, they are entitled to it: that they possess it is just, and what anyone else does or doesn't have or need is irrelevant.
On the basis of this theory of distributive justice, Nozick argues that all attempts to redistribute goods according to an ideal pattern, without the consent of their owners, are theft. In particular,
redistributive taxationRedistribution of wealth is the transfer of income, wealth or property from some individuals to others caused by a social mechanism such as taxation, monetary policies, welfare, nationalization, charity, divorce or tort law. Most often it refers to progressive redistribution, from the rich to the...
is theft.
Some property rights theorists also take a consequentialist view of distributive justice and argue that property rights based justice also has the effect of maximizing the overall wealth of an economic system. They explain that voluntary (non-coerced) transactions always have a property called
pareto efficiencyPareto efficiency, or Pareto optimality, is a concept in economics with applications in engineering and social sciences. The term is named after Vilfredo Pareto, an Italian economist who used the concept in his studies of economic efficiency and income distribution.Given an initial allocation of...
. A pareto efficient transaction is one where at least one party ends up better off and neither party ends up worse off. The result is that the world is better off in an absolute sense and no one is worse off. Such consequentialist property rights theorists argue that respecting property rights maximizes the number of pareto efficient transactions in the world and minimized the number of non-pareto efficient transactions in the world (i.e. transactions where someone is made worse off). The result is that the world will have generated the greatest total benefit from the limited, scarce resources available in the world. Further, this will have been accomplished without taking anything away from anyone by coercion.
Welfare-maximization
According to the utilitarian, justice requires the maximization of the total or average welfare across all relevant individuals. This may require sacrifice of some for the good of others, so long as everyone's good is taken impartially into account. Utilitarianism, in general, argues that the standard of justification for actions, institutions, or the whole world, is
impartial welfare consequentialism, and only indirectly, if at all, to do with
rightsHuman rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
,
propertyProperty is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
,
needA need is something that is necessary for organisms to live a healthy life. Needs are distinguished from wants because a deficiency would cause a clear negative outcome, such as dysfunction or death. Needs can be objective and physical, such as food, or they can be subjective and psychological,...
, or any other non-utilitarian criterion. These other criteria might be indirectly important, to the extent that human welfare involves them. But even then, such demands as human rights would only be elements in the calculation of overall welfare, not uncrossable barriers to action.
Theories of retributive justice
Theories of retributive justice are concerned with
punishmentPunishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
for wrongdoing, and need to answer three questions:
- why punish?
- who should be punished?
- what punishment should they receive?
This section considers the two major accounts of retributive justice, and their answers to these questions.
Utilitarian theories look forward to the future consequences of punishment, while
retributive theories look back to particular acts of wrongdoing, and attempt to balance them with deserved punishment.
Utilitarianism
According to the utilitarian, as already noted, justice requires the maximization of the total or average welfare across all relevant individuals. Punishment is bad treatment of someone, and therefore can’t be good
in itself, for the utilitarian. But punishment might be a necessary
sacrifice that maximizes the overall good in the long term, in one or more of three ways:
- Deterrence
Deterrence is the use of punishment as a threat to deter people from committing a crime. Deterrence is often contrasted with retributivism, which holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done.- Categories :Deterrence can...
. The credible threatCoercion is the practice of forcing another party to behave in an involuntary manner by use of threats or intimidation or some other form of pressure or force. In law, coercion is codified as the duress crime. Such actions are used as leverage, to force the victim to act in the desired way...
of punishment might lead people to make different choices; well-designed threats might lead people to make choices that maximize welfare.
- Rehabilitation
Rehabilitation means; To restore to useful life, as through therapy and education or To restore to good condition, operation, or capacity....
. Punishment might make bad people into better ones. For the utilitarian, all that ‘bad person’ can mean is ‘person who's likely to cause bad things (like suffering) ’. So, utilitarianism could recommend punishment that changes someone such that they are less likely to cause bad things.
- Security
Security is the degree of protection against danger, damage, loss, and crime. Security as a form of protection are structures and processes that provide or improve security as a condition. The Institute for Security and Open Methodologies in the OSSTMM 3 defines security as "a form of protection...
/IncapacitationThe capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
. Perhaps there are people who are irredeemable causers of bad things. If so, imprisoningA prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
them might maximize welfare by limiting their opportunities to cause harm and therefore the benefit lies within protecting society.
So, the reason for punishment is the maximization of welfare, and punishment should be of whomever, and of whatever form and severity, are needed to meet that goal. Worryingly, this may sometimes justify punishing the innocent, or inflicting disproportionately severe punishments, when that will have the best consequences overall (perhaps executing a few suspected
shopliftersShoplifting is theft of goods from a retail establishment. It is one of the most common property crimes dealt with by police and courts....
live on television would be an effective deterrent to shoplifting, for instance). It also suggests that punishment might turn out
never to be right, depending on the facts about what actual consequences it has.
Retributivism
The retributivist will think the utilitarian's argument disastrously mistaken. If someone does something wrong, we must respond to it, and to him or her, as an
individualAn individual is a person or any specific object or thing in a collection. Individuality is the state or quality of being an individual; a person separate from other persons and possessing his or her own needs, goals, and desires. Being self expressive...
, not as a part of a calculation of overall welfare. To do otherwise is to disrespect him or her as an individual human being. If the crime had victims, it is to disrespect them, too. Wrongdoing must be balanced or made good in some way, and so the criminal
deserves to be punished. Retributivism emphasizes retribution – payback – rather than maximization of welfare. Like the theory of distributive justice as giving everyone what they deserve (see above), it links justice with desert. It says that all guilty people, and only guilty people, deserve appropriate punishment. This matches some strong
intuitionsIntuition is the ability to acquire knowledge without inference or the use of reason. "The word 'intuition' comes from the Latin word 'intueri', which is often roughly translated as meaning 'to look inside'’ or 'to contemplate'." Intuition provides us with beliefs that we cannot necessarily justify...
about just punishment: that it should be
proportional to the crime, and that it should be of
only and
all of the guilty. However, it is sometimes argued that retributivism is merely
revengeRevenge is a harmful action against a person or group in response to a grievance, be it real or perceived. It is also called payback, retribution, retaliation or vengeance; it may be characterized, justly or unjustly, as a form of justice.-Function in society:Some societies believe that the...
in disguise. Despite this criticism, there are numerous differences between retribution and revenge: the former is impartial, has a scale of appropriateness and corrects a moral wrong, whereas the latter is personal, unlimited in scale, and often corrects a slight.
Restorative justice
Restorative justice (also sometimes called "reparative justice") is an approach to justice that focuses on the needs of victims and offenders, instead of satisfying abstract legal principles or punishing the offender. Victims take an active role in the process, while offenders are encouraged to take responsibility for their actions, "to repair the harm they've done—by apologizing, returning stolen money, or community service". It is based on a theory of justice that considers crime and wrongdoing to be an offense against an individual or community rather than the state. Restorative justice that fosters dialogue between victim and offender shows the highest rates of victim satisfaction and offender accountability.
Mixed theories
Some modern philosophers have argued that Utilitarian and Retributive theories are not mutually exclusive. For example, Andrew Von Hirsch, in his 1976 book Doing Justice, suggested that we have a moral obligation to punish greater crimes more than lesser ones. However, so long as we adhere to that constraint then utilitarian ideals would play a significant secondary role.
Institutions
In a world where people are interconnected but they disagree, institutions are required to instantiate ideals of justice. These institutions may be justified by their approximate instantiation of justice, or they may be deeply unjust when compared with ideal standards — consider the institution of
slaverySlavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
. Justice is an ideal the world fails to live up to, sometimes despite good intentions, sometimes disastrously. The question of institutive justice raises issues of
legitimacyIn political science, legitimacy is the popular acceptance of a governing law or régime as an authority. Whereas “authority” denotes a specific position in an established government, the term “legitimacy” denotes a system of government — wherein “government” denotes “sphere of influence”...
, procedure, codification and
interpretationStatutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
, which are considered by legal theorists and by philosophers of law.
Another definition of justice is an independent investigation of truth.
In a court room,
lawyerA lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s, the
judgeA judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
and the
juryA jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
are supposed to be independently investigating the truth of an alleged crime.
In physics, a group of physicists examine data and theoretical concepts to consult on what might be the truth or reality of a phenomenon.
See also
- Other pages
- Sociology of law
The sociology of law is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies...
- Criminal justice
Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts...
- Ethics
Ethics, also known as moral philosophy, is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice and crime, etc.Major branches of ethics include:...
- Global justice
Global justice is an issue in political philosophy arising from the concern that the world at large is unjust.-Context:The broader philosophical context of the global justice debate, in both its contemporary and historical forms, is the issue of impartiality...
- Injustice
Injustice is the lack of or opposition to justice, either in reference to a particular event or act, or as a larger status quo. The term generally refers to misuse, abuse, neglect, or malfeasance that is uncorrected or else sanctioned by a legal system. Misuse and abuse with regard to a particular...
- Just war
Just war theory is a doctrine of military ethics of Roman philosophical and Catholic origin, studied by moral theologians, ethicists and international policy makers, which holds that a conflict ought to meet philosophical, religious or political criteria.-Origins:The concept of justification for...
- Just-world phenomenon
The just world hypothesis describes a cognitive bias in which people believe that the world they live in is one in which actions have appropriate and predictable consequences. This phenomenon has been widely studied by social psychologists since Melvin J. Lerner conducted seminal work on the belief...
- Justice (economics)
Justice in economics is a subcategory of welfare economics with models frequently representing the ethical-social requirements of a given theory. That theory may or may not elicit acceptance...
- Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
- Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
- Rationality
In philosophy, rationality is the exercise of reason. It is the manner in which people derive conclusions when considering things deliberately. It also refers to the conformity of one's beliefs with one's reasons for belief, or with one's actions with one's reasons for action...
- Rule according to higher law
The rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
- Teaching for social justice
Teaching for social justice is an educational philosophy designed to promote socioeconomic equality in the learning environment and instill these values in students. Educators may employ social justice instruction to promote unity on campus, as well as mitigate boundaries to the general curriculum...
- Justice (Arabic: Adl) in Islam
ʻAdl is an Arabic word meaning 'justice'. In Islamic theology, ʻadl refers to God's divine justice.Adil, and Adeel are male names derived from ʻadl and are common throughout the Arab world, Pakistan, India and in most regions with significant Muslim populations.- In Islamic jurisprudence :ʻAdl, as...
- Types of justice
- Commutative justice
- Distributive justice
Distributive justice concerns what some consider to be socially just allocation of goods in a society. A society in which incidental inequalities in outcome do not arise would be considered a society guided by the principles of distributive justice...
- Organizational Justice
The term organizational justice was coined by Greenberg and is defined as an individual’s perception of and reactions to fairness in an organization. Justice or fairness refers to the idea that an action or decision is morally right, which may be defined according to ethics, religion, fairness,...
- Restorative justice
Restorative 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...
- Retributive justice
Retributive justice is a theory of justice that considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society....
- Social justice
Social justice generally refers to the idea of creating a society or institution that is based on the principles of equality and solidarity, that understands and values human rights, and that recognizes the dignity of every human being. The term and modern concept of "social justice" was coined by...
- Spatial justice
Spatial justice links together social justice and space. The organization of space is a crucial dimension of human societies and reflects social facts and influences social relations . Consequently, both justice and injustice become visible in space...
Further reading
- Anthony Duff & David Garland eds, A Reader on Punishment (Oxford: Oxford University Press, 1994)
- Barzilai Gad, Communities and Law: Politics and Cultures of Legal Identities (Ann Arbor: University of Michigan Press
The University of Michigan Press is part of the University of Michigan Library and serves as a primary publishing unit of the University of Michigan, with special responsibility for the creation and promotion of scholarly, educational, and regional books and other materials in digital and print...
, 2003)
- Brian Barry, Theories of Justice (Berkeley: University of California Press
University of California Press, also known as UC Press, is a publishing house associated with the University of California that engages in academic publishing. It was founded in 1893 to publish books and papers for the faculty of the University of California, established 25 years earlier in 1868...
, 1989)
- C. L. Ten, Crime, Guilt, and Punishment: A philosophical introduction (Oxford: Clarendon Press, 1987)
- Colin Farrelly, An Introduction to Contemporary Political Theory (London: Sage, 2004)
- David Gauthier, Morals By Agreement (Oxford: Clarendon Press, 1986)
- James Konow (2003) "Which Is the Fairest One of All? A Positive Analysis of Justice Theories", Journal of Economic Literature, 41(4), p. 1188-1239
- David Schmidtz, Elements of Justice (New York: Columbia University Press
Columbia University Press is a university press based in New York City, and affiliated with Columbia University. It is currently directed by James D. Jordan and publishes titles in the humanities and sciences, including the fields of literary and cultural studies, history, social work, sociology,...
, 2006)
- Harry Brighouse, Justice (Cambridge: Polity Press
Polity is an international publisher in the social sciences and humanities. It publishes around 100 books a year in sociology, politics, philosophy, media and cultural studies, health studies, literary studies, history, anthropology and related subjects. Its books range from core textbooks for...
, 2004)
- John Rawls, A Theory of Justice (revised edition, Oxford: Oxford University Press, 1999)
- John Stuart Mill, Utilitarianism in On Liberty and Other Essays ed. John Gray (Oxford: Oxford University Press, 1991)
- Nicola Lacey, State Punishment (London: Routledge
Routledge is a British publishing house which has operated under a succession of company names and latterly as an academic imprint. Its origins may be traced back to the 19th-century London bookseller George Routledge...
, 1988)
- Peter Singer ed., A Companion to Ethics (Oxford: Blackwell, 1993), Part IV
- Plato, Republic trans. Robin Waterfield (Oxford: Oxford University Press, 1994)
- Robert E. Goodin & Philip Pettit eds, Contemporary Political Philosophy: An anthology (2nd edition, Malden, Massachusetts: Blackwell, 2006), Part III
- Robert Nozick, Anarchy, State, and Utopia (Oxford: Blackwell, 1974)
- Serge Guinchard
Serge Guinchard, born on May 9 1946 in Lyon is a French jurist, teacher emeritus professor of the University of Paris II. Lawyer often asked to give its views on matters within its scope, both in France and abroad, currently specializes in issues of justice and lawtrial,he has combined a dual...
, La justice et ses institutions (Judicial institutions), Dalloz editor, 10 edition, 2009
- Ted Honderich, Punishment: The supposed justifications (London: Hutchinson & Co., 1969)
- Will Kymlicka, Contemporary Political Philosophy: An introduction (2nd edition, Oxford: Oxford University Press, 2002)
External links
- Stanford Encyclopedia of Philosophy entries:
- Justice for the World
- United Nations Rule of Law: Informal Justice, on the relationship between informal/community justice, the rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
and the United NationsThe United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
- Video:Balkan Justice YouTube
- A series of videos on the subject of justice:
- Justice: What's The Right Thing To Do? by Harvard University's Michael Sandel. This is a wonderful series on this subject and from this site you are referred to all 12 episodes as well as to reading materials and comments from participants.