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Justice - Theories of justice

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Distributive justice

Thomas Aquinas said that a just law was one that served the common good, distributed burdens fairly, promoted religion, and was within the lawmaker's authority.  However, what are “the common good” and a "fair distribution of burdens” and what is the position of religious values in a secular legal system?  Later philosophers have developed the concept of Distributive Justice has produced other theories of justice.

 

Utilitarianism       

Utilitarianism as a theory of justice is based on a principle of utility, approving every action that increases human happiness (by increasing pleasure and/or decreasing pain, those being the two "sovereign masters" of man) and disapproving every action that diminishes it.

A utilitarian view is that justice should seek to create the greatest happiness of the greatest number.  A law is just if it results in a net gain in happiness, even at the expense of minorities.  The problem here is that minorities may not form part of the "greater number".  This is a particular problem in a pluralist society.

 

Utilitarianism still plays a major part in the democratic decision-making process; it is a secular theory requiring no reference to any natural rights or other abstract religious principles defensible only by faith.  The idea of maximising the total happiness of the community is often applied on a national political level and in ordinary dealings among friends.

 

In marginal cases, the theory breaks down and produces results far removed from those that most people would consider right.  In an Economic Theory of Justice, there is conflict between the views of the individual and the collective view, sometimes referred to as the, social contract.  Such conflict can be seen by asking how a doctor with £100,000 to spend should chose between 100 patients with a minor condition; he can treat all of them, or 1 very sick person who would take all his resources. There is no legal requirement that the National Health Service distributes its assets evenly.  This can produce results that anger the majority, who respond emotionally; the case of Child B produced national anger, fuelled by newspaper reports. Jaymee Bowen (Child B) has come to epitomise the dilemmas involved in making tragic choices in health care.  When 11 year-old Jaymee needed life-saving cancer treatment for the third time, the hospital refused funding in R v Cambridge Heath Authority ex parte B [1995] CA the Court of Appeal upheld the hospital’s decision.  Medical advice that Jaymee had only a 2.5 per cent chance of survival was basically that the £75,000 it would cost to carry on her treatment would be wasted and could be put to better use for others.   An anonymous benefactor stepped in and paid for Jaymee to receive the treatment privately, she died 16 months later.  T S Eliot famously remarked, “Human kind cannot take very much reality".

 

Harm principle

Jeremy Bentham and John Stuart Mill believed that the law should not interfere with private actions unless they caused harm to others. 

JS Mill writing in “On Liberty” said that private acts of immorality increase the pleasure of those who indulge in them and cause little pain to others.  Their net effect is to increase the sum of human happiness and laws prohibiting them would be unjust.

JS Mill On Liberty

Bentham Project

The idea that wealth should be distributed evenly denies the possibility that individuals will be stimulated to improve their own income and thereby increasing the wealth available to all.  The theory that we all live in a society from which we draw benefits and to which we contribute is called the “social contract”.   Bentham said that the “social contract” and its claim to natural rights is "nonsense on stilts" that inhibits desirable social changes.

 

Bentham might argue that compelling people to have their babies vaccinated using the MMR vaccine, would be morally preferable than leaving such a decision to the discretion of parents because it would drastically reduce the incidence of measles, mumps and rubella (and their horrible consequences) within the population at large.

 

Liberal-Natural Rights theories

The Liberal-Natural rights view of justice is measured according to the extent minorities and the most vulnerable are protected.  It uses a notion of natural rights, the minimum rights to which all are entitled.

 

What are these ‘basic rights’?

Rawls' hypothesis of the ‘original position’ (see below) gives some guidance on what these basic rights are.  It can be argued that this simply returns us to the statement that what is just, is what is fair’?

 

Libertarian-market theories

The libertarian-market view holds that any interference in market distribution of benefits and burdens is an unjust restriction on individual freedom, and that justice should only allow limited intervention to prevent unjust enrichment, by which they mean basically theft and fraud and exploitation.  ‘What is justice?’ is as much a political question as a legal or philosophical one.

 

Marx, Perelman, Nozick, Hart and compensation

In “The Concept of Law”, Hart linked the idea of justice with that of morality.  Like cases, he said, should be treated alike.  This is a common theme in all theories of justice, which has its origins with Aristotle.  Aristotle believed that like should be treated alike and unlike treated accordingly.  In this case, Aristotle was referring to people of similar class and status, free men should be treated alike, but not treated the same as slaves.  A slave was entitled to be treated like any other slave.  In less structured societies, it raises the question "what makes cases alike or different?"  In terms of sentencing and defences such as insanity, it raises other questions dealt with under “Corrective Justice”, below.

 

“To each according to…” 

In the Bible (Romans 2), there is reference to “to each according to his works”.  Marx believed that a communal society would operate under the slogan: "From each according to his ability, to each according to his need." Other Marxists, such as Perelman have developed this idea.  To each according to his works/needs/merit/rank/entitlement/means/ etc.

 

Most people would agree that most of the system of distribution supported by law in the UK is just and leads to just results most of the time. Marxists would disagree; the Marxist perspective is that distributive justice favours capital and therefore works against the interests of the working classes (the proletariat).

 

Rawls and the original position

American jurist John Rawls in "A Theory of Justice" (1971) analysed law on the basis that a rational person will pay for those things wanted badly enough.   His theory rejects utilitarianism, which was based on maximising happiness and constructs a social contract aimed at establishing principles of justice. Free and rational persons concerned to further their own interests adopt principles of justice, which define the basis of their association.

 

His analysis is purely hypothetical. It holds that the concept of the rational choice as one that could help our understanding of what justice might require.  In practice, all human beings are born into a particular society with no option. 

 

"Veil of ignorance" the original position

In making the hypothetical choice, Rawls insisted that the individual should operate behind a "veil of ignorance" where they do not know their sex, class, religion or social position or whether they are strong, clever or stupid, the state or period in history in which they exist. Rawls then predicted that any such society would exhibit two essential features.

First, people in the original position would agree that each person should have an equal right to certain basic liberties, such as freedom of person, freedom of speech and thought, freedom to participate in government, and freedom to possess property, to the greatest extent compatible with the enjoyment of the same basic liberties by others.

Second, social and economic inequalities, and differences of treatment, would be acceptable only insofar as they were available in principle to anyone, and were for the benefit of the least well off members of the society.

Thus, for example people would agree that doctors should be paid higher than average incomes, because this would encourage able people to qualify as doctors and so benefit everyone in the long run.

 

On ‘lifting the veil’, anyone could be at the bottom of the social hierarchy. Rawls considers that there are two principles of justice namely; liberty and equality, and they would select liberty over equality.   Liberty (ensures an equal right to basic liberties).  Equality (economic and social inequalities arranged for the benefit of the least advantaged, and equality of opportunity).

 

Rawls is criticised for not explaining why liberty would be selected before equality or why natural talents to be treated as collective assets.

 

Nozick and historical entitlement

To Robert Nozick in "Anarchy State and Utopia" (1974) Justice is based on rights.  One of these rights is the right to retain our own property, even against the state. He would claim that we have no obligation to help those worse off unless we had obtained our wealth from them improperly.  There could therefore be no question of redistribution of wealth for social purposes.  This philosophy heavily influenced the thinking of Margaret Thatcher, who was determined to “Roll back the State”. Therefore, Rawls’ theory of distributive justice involved interference with the inherent rights of individuals.

 

Justice – does it have boundaries?

Justice is, perhaps giving people what they are due. In this context, one can ask, “To whom (or what) is justice owed?”   Historically, full political equality has expanded slowly for example, recognition of white property owning males, recognition of white females, immigrants, members of minority and ethnic groups, gays and lesbians.  What then is the scope of justice?  Justice is not only about what courts and legal systems do there are some fundamental philosophical questions that need to be addressed. Are foetuses “persons”? What rights do children have?   Can claims of justice be made on behalf of the dead or even on behalf of generations of people as yet unborn (concerning, for example, claims to the preservation of natural resources)?  What is the moral standing of nonhuman animals, whether as whole species or even as individual living creatures?

 

A further set of problems concerns the significance of geographical boundaries, state boundaries.  As UK subjects, we are increasingly challenged to think of ourselves as citizens of Europe and perhaps citizens of the world and not just as subjects of the UK.  If we consider, and act on, what others are due, the question of what human beings in other counties are due becomes increasingly important.  Are there basic human rights? If so, do such rights require supranational legal institutions to see that they are recognized?

Should we be considering these questions in the same legal and philosophical way as we view domestic theories of distributive justice?  In particular, in a utilitarian sense, based on Rawls entitlement should justice be concerned with larger community issues, perhaps globally?

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