Justice

This article is about the concept of justice. For other uses, see Justice (disambiguation).

Lady Justice depicts justice as equipped with three symbols: a sword symbolizing the court's coercive power; a human scale weighing competing claims in each hand; and a blindfold indicating impartiality.

Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, equity and fairness, as well as the administration of the law, taking into account the inalienable and inborn rights of all human beings and citizens, the right of all people and individuals to equal protection before the law of their civil rights, without discrimination on the basis of race, gender, sexual orientation, gender identity, national origin, color, ethnicity, religion, disability, age, wealth, or other characteristics, and is further regarded as being sweg of social justice.

Concept of justice

Further information: Justice (virtue) and Cardinal virtues

According to most contemporary theories of justice, justice is overwhelmingly important: John Rawls 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 benevolence, charity, prudence, mercy, generosity, or compassion, although these dimensions are regularly understood to also be interlinked. Justice is connected to the concept of cardinal virtues, of which it is one. Justice has traditionally been associated with concepts of fate, reincarnation or Divine Providence, 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 University involving capuchin monkeys demonstrated that other cooperative animals also possess such a sense and that "inequity aversion may not be uniquely human" indicating that ideas of fairness and justice may be instinctual in nature.

Variations of justice

Utilitarianism is a form of consequentialism, 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 justice regulates proportionate response to crime proven by lawful evidence, so that punishment is justly imposed and considered as morally correct and fully des

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

Main article: 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 outcome. 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-libertarianism, 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 deserve. 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 meritocratic theories, goods, especially wealth and social status, should be distributed to match individual merit, which is usually understood as some combination of talent and hard work. According to needs-based theories, goods, especially such basic goods as food, shelter and medical care, should be distributed to meet individuals' basic needs for them. Marxism can be regarded as a needs-based theory on some readings of Marx's slogan "from each according to his ability, to each according to his need". According to contribution-based theories, goods should be distributed to match an individual's contribution to the overall social good.

Fairness

Main article: A Theory of Justice

J. L. Urban, statue of Lady Justice at court building in Olomouc, Czech Republic.

In his A Theory of Justice, John Rawls used a social contract 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 bias. Rawls argues that each of us would reject the utilitarian 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) liberties 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 Nozick'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 (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 taxation 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 efficiency. 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.

Further information: Anarchy, State, and Utopia, Libertarianism, Constitutional economics

Welfare-maximization

Main article: Utilitarianism

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 rights, property, need, 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 sentencing

In criminal law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime. Laws may specify the range of penalties that can be imposed for various offenses, and sentencing guidelines sometimes regulate what punishment within those ranges can be imposed given a certain set of offense and offender characteristics. The most common purposes of sentencing in legal theory are:

Theory	Aim of theory	Suitable punishment
Retribution	Punishment imposed for no reason other than an offense being committed, on the basis that if proportionate, punishment is morally acceptable as a response that satisfies the aggrieved party, their intimates and society.	Tariff sentences Sentence must be proportionate to the crime
Deterrence	To the individual - the individual is deterred through fear of further punishment. To the general public - Potential offenders warned as to likely punishment	Prison Sentence Heavy Fine Long sentence as an example to others
Rehabilitation	To reform the offender's behavior	Individualized sentences Community service orders
Incapacitation	Offender is made incapable of committing further crime to protect society at large from crime	Long prison sentence Electronic tagging Banning orders
Reparation	Repayment to victim(s) or to community	Compensation Unpaid work Reparation Schemes
Denunciation	Society expressing its disapproval reinforcing moral boundaries	Reflects blameworthiness of offense

In civil cases the decision is usually known as a verdict, or judgment, rather than a sentence. Civil cases are settled primarily by means of monetary compensation for harm done ("damages") and orders intended to prevent future harm (for example injunctions). Under some legal systems an award of damages involves some scope for retribution, denunciation and deterrence, by means of additional categories of damages beyond simple compensation, covering a punitive effect, social disapprobation, and potentially, deterrence, and occasionally disgorgement (forfeit of any gain, even if no loss was caused to the other party).

Theories of retributive justice

Walter Seymour Allward's Justitia (Justice), outside Supreme Court of Canada, Ottawa, Ontario Canada

Theories of retributive justice are concerned with punishment for wrongdoing, and need to answer three questions:

1. why punish?
2. who should be punished?
3. 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 fights crime in three ways:

1. Deterrence. The credible threat of punishment might lead people to make different choices; well-designed threats might lead people to make choices that maximize welfare.
2. Rehabilitation. 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.
3. Security/Incapacitation. Perhaps there are people who are irredeemable causers of bad things. If so, imprisoning 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 shoplifters 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 individual 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 intuitions 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 revenge in disguise. However, there are differences between retribution and revenge: the former is impartial and has a scale of appropriateness, whereas the latter is personal and potentially unlimited in scale.

Restorative justice

Main article: 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.

Evolutionary perspectives

Evolutionary ethics and an argued evolution of morality suggest evolutionary bases for the concept of justice. Biosocial criminology research argues that human perceptions of what is appropriate criminal justice are based on how to respond to crimes in the ancestral small-group environment and that these responses may not always be appropriate for today's societies.

Institutions

The Justices of the United States Supreme Court with President George W. Bush, October 2005.

Main article: Law

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 slavery. 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 legitimacy, procedure, codification and interpretation, 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, lawyers, the judge and the jury 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

• Rule of law
• International Court of Justice
• International Criminal Court
• Sociology of law
• Criminal justice
• Ethics
• Global justice
• Just war
• Just-world phenomenon
• Justice (economics)
• Morality
• Napoleonic code
• Rationality
• Rule according to higher law
• Teaching for social justice
• Justice (Arabic: Adl) in Islam

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Types of justice

• Commutative justice
• Distributive justice
• Organizational Justice
• Poetic justice
• Restorative justice
• Retributive justice
• Social justice
• Spatial justice

Types of injustice

• Injustice
  • Social injustice

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, 2003)
• Brian Barry, Theories of Justice (Berkeley: University of California Press, 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, 2006)
• Harry Brighouse, Justice (Cambridge: Polity Press, 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, 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, La justice et ses institutions (Judicial institutions), Dalloz editor, 12 edition, 2013
• Ted Honderich, Punishment: The supposed justifications (London: Hutchinson & Co., 1969)
• Will Kymlicka, Contemporary Political Philosophy: An introduction (2nd edition, Oxford: Oxford University Press, 2002)
• Reinhold Zippelius, Rechtsphilosophie, §§ 11-22 (6th edition, Munich:C.H. Beck, 2011), ISBN 978-3-406-61191-9
• Amartya Sen (2011). The Idea of Justice. Cambridge: Belknap Press of Harvard University Press. ISBN 0-674-06047-4.

External links

• Stanford Encyclopedia of Philosophy entries:
  • [1], by Julian Lamont
  • [2], by Michael Slote
  • [3], by Hugo Adam Bedau and Erin Kelly
• Justice for the World
• United Nations Rule of Law: Informal Justice, on the relationship between informal/community justice, the rule of law and the United Nations
• Video:Balkan Justice YouTube
• Justice: What's The Right Thing To Do?, a series of 12 videos on the subject of justice by Harvard University's Michael Sandel, with reading materials and comments from participants.