Chapter 17 The Concept of Justice

Transcription

1 187 Chapter 17 The Concept of Justice Warayuth Sriwarakuel What Is Justice? The idea of justice is central in moral and political philosophy. Justice is considered as one of the four cardinal virtues. i It is a necessary virtue for individuals to interact with others. However, it is not easy to define what justice is. In Plato s Republic Socrates interlocutors tried to give their own definitions of justice. For example, Justice is speaking the truth and giving back what one takes. Justice is doing good to friends and harm to enemies. Justice is nothing other than the advantage of the stronger. Justice is giving a man his due, or what is appropriate to him. But according to Plato, Justice is a social consciousness that makes a society internally harmonious and good, and justice as a specialization of duties. Aristotle made a distinction between corrective justice and distributive justice. The difference between corrective and distributive justice is that corrective justice covers that which is due to a person as punishment whereas distributive justice covers that which is due to a person by way of benefits and burdens. It is easier to identify unjust cases than to define justice. For example, not giving back what one borrows, charging extremely high interests, breaking queue in the bank counter, betraying friends, not keeping promises, and taking advantage of others are unjust acts, to mention just a few. The problem of justice will never happen if a person stays alone. Thus justice and injustice always presuppose individuals interactions with one another. Corrective Justice Corrective justice is a response to crimes and wrongdoings. It is related to punishments or penalties. A just punishment should meet the three following criteria. First, a punishment should be imposed only on a wrongdoer. It should never be imposed on innocent people. A punishment will become unjust when it is imposed on an innocent person. Second, the quantum of suffering should satisfy the principle of ordinal proportionality. This means that the punishment in a criminal case should be proportionate to the severity of the crime. If the quantum of punishment is more than the criminal severity, then it will become unjust. Third, the quantum of suffering should satisfy the principle of cardinal proportionality. It means that penalties should be proportionate to the seriousness or vertical ranking of crimes. Different

2 188 kinds of crimes have different degrees of seriousness. For example, homicide is more serious than stealing money. Corrective justice includes retributive and restorative justice. Retributive justice is a theory of justice that considers punishment, if proportionate, is a morally acceptable response to crime, by proving satisfaction to the victim, the offender and society. This theory holds that justice has been done when the wrong-doer has been sufficiently punished. We may find people seek this kind of justice everywhere. In the Bible, the saying, An eye for an eye, a tooth for a tooth, promotes this kind of justice. Crimes or wrongdoings are considered against authorities and violations of rules of law. Thus criminals or wrongdoers are usually punished by the authorities. Whereas retributive justice aims at punishments, restorative justice focuses on the needs of victims and offenders. When crimes or wrongdoings happen, the needs of victims and offenders become first priorities. Offenders are encouraged to be responsible for their actions whereas victims are given an active role in a dispute and some compensation. For example, the offenders are requested to repair the harm they have done by apologizing, returning stolen money, doing community service, and so on. The following table, taken from YWCA Madison Racial Justice Resource Guide, ii illustrates the contrast between retributive and restorative justice. Retributive Justice Misbehavior/offenses are committed against authorities and are violations of rules of law or policies. Offender is accountable to authorities for the misbehavior or offense. Accountability is equated with suffering. If offenders are made to suffer enough (i.e. expulsion or suspension), they have been held accountable. Victims are not the primary focus of the process. Offenders are defined by the misbehavior/offense. Victim is defined by material and psychological loss. Misbehavior/offenses are the result of individual choice with individual responsibility. Restorative Justice Misbehavior/offenses are defined as acts against victims and the community, which violate people and community trust. Offender is accountable to the victim and the community. Accountability is defined as taking responsibility for behaviors and repairing the harm resulting from those behaviors. Success is measured by how much reparation was achieved. Victims and community are directly involved and play a key role in response to misbehavior/offenses. Offenders are defined by their capacity to take responsibility for their actions and change behavior. Victims are defined by losses and capacity to participate in the process for recovering losses and healing. Misbehavior/offenses have both individual and social dimensions and are the result of individual choice and the conditions that lead to the behavior.

3 189 Distributive Justice The idea of distributive justice is simple: how can we justly distribute burdens and benefits to members of society? Distributive justice concerns a socially just allocation of burdens and benefits in a society. In Plato s Republic Polemarchus states that justice is giving a man his due, or what is appropriate to him. For Polemarchus it is obvious that what is appropriate to each person is dictated by the conventions of the society where he lives. Since all societies have their own conventions, it is usual that they have different distributions. Furthermore, even in one and the same society, distribution may be different at any point in time. It is obvious that every society has its own policies, institutions, principles, and laws in distributing economic benefits and burdens across members of the society. In a socialist society, Marx s slogan, From each according to his abilities, to each according to his needs, iii is very popular. If we consider the former phrase From each according to his abilities, we may discover that all cultures have no problem with it because it is obvious that all people are different in their abilities. Each society expects more contributions from the more able persons than from the less able ones. For instance, a one-legged man is expected to make contributions less than a two-legged one. The society usually expects that all of its members are supposed to try their best according to their own abilities. However, when the latter phrase to each according to his needs is reflected upon, not all societies agree to it. Not all people agree with the Marxists who hold: To each according to his needs. For example, in some society people may adopt to each according to his desert instead. Generally speaking, there are two main theories of distributive justice, namely, liberal (libertarian) theories and egalitarian theories. Before we inquire into these two types of theories, let us learn a lesson from Aesop s story: The Grasshopper and the Ants. One fine day in winter some ants were busy drying their store of corn, which had got rather damp during a long spell of rain. Presently up came a grasshopper and begged them to spare her a few grains, For, she said, I m simply starving. The ants stopped work for a moment, though this was against their principles. May we ask, said they, what you were doing with yourself all last summer? Why didn t you collect a store of food for the winter? The fact is, replied the grasshopper, I was so busy singing that I hadn t the time. If you spent the summer singing, replied the ants, you can t do better than spend the winter dancing. And they chuckled and went on with their work. iv What we learn from Aesop s story above corresponds to St. Paul s saying: We urged you when we were with you not to let anyone eat who refused to work. v Now let us turn to the two types of distributive theories. Liberal theories of distributive justice, on the one hand, hold that distribution should be made on the basis of maximization, desert, individual characteristics, free transactions, effort, contribution, etc. Egalitarian theories, on the other hand, hold that distribution should be made on the basis of equality. The egalitarian theorists hold the principle that every person should have the same level of material goods and services. The principle is justified on the grounds that all people are morally equal and that equality in material goods and services is the best way to give effect to

4 190 this moral ideal. It is obvious that the egalitarian ideal is in contrast to the spirit of capitalism and libertarianism. Libertarian theorists of distributive justice, following John Locke s liberalism, emphasize free transactions and desert-based principles which may be classified into three categories as follows: vi 1. Contribution: People should be rewarded for their work activity according to the value of their contribution to the social product. 2. Effort: People should be rewarded according to the effort they expend in their work activity. 3. Compensation: People should be rewarded according to the costs they incur in their work activity. According to the libertarian theorists, since people freely apply their abilities and talents to socially productive work in different degrees, they deserve different levels of income. Or as Robert Nozick puts it, From each as they choose, to each as they are chosen. vii Distributive systems are just insofar as they distribute incomes according to the different levels earned or deserved by the individuals in the society for their productive labors, efforts, or contributions. Nozick advanced libertarianism by proposing the Entitlement Theory which defines a distribution to be just if the distribution is historically justified, namely, if it arose from the appropriation by individuals of ownership and voluntary transfers between individuals, and all other transactions between individuals are voluntary. All inequalities are accepted. Rights to both self-ownership (i.e., rights to one s body, one s labor, and the fruits thereof) and resource-ownership (i.e., rights to own external resources and the produce of these) are maintained. The Entitlement Theory includes the following principles. a. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding. b. A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding. c. No one is entitled to a holding except by (repeated) applications of (a) and (b). The complete principle of distributive justice would say simply that a distribution is just if everyone is entitled to the holdings they possess under the distribution. viii Between the libertarians and the egalitarians John Rawls takes a middle way. He pays attention to both equality and the difference principle which allows inequality. In his book A Theory of Justice he proposes the following two principles of justice: 1. Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.

5 Social and economic inequalities are to satisfy two conditions: (a) They are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and (b), they are to be to the greatest benefit of the least advantaged members of society. ix For (2b) Rawls uses an index of primary goods to measure the benefits of people for the purposes of the second principle. Where the rules may conflict in practice, Rawls says that Principle (1) has lexical priority over Principle (2), and Principle (2a) has lexical priority over (2b). As a consequence of the priority rules, Rawls' principles do not permit sacrifices to basic liberties in order to generate greater equality of opportunity or a higher level of material goods, even for the worst off. Justice as fairness (or procedural justice), as developed by Rawls, treats all personal attributes as being morally arbitrary, and thus defines justice as requiring equality, unless any departure from this benefits everyone. Rawls concept of justice is developed around the idea of a social contract. Rawls sees the social contract as being neither historical nor hypothetical but a thought-experiment for exploring the implications of an assumption of moral equality as embodied in the original position. To give effect to this Rawls assumes that the parties to the contract are situated behind a veil of ignorance where they do not know anything about themselves or their situations, and accordingly are equal. The intention is that as the parties to the contract have no information about themselves they necessarily act impartially, and thus as procedural justice or justice as fairness requires. As no one knows his circumstances, no one can try to impose principles of justice that favour his particular condition. Social Justice To many thinkers, social justice is similar to distributive justice. x However, whereas distributive justice deals mainly with economic burdens and benefits, social justice is broader in the sense that it deals with economic, political, and socio-cultural dimensions. xi In other words, social justice means the just and fair relation between the individual and society in a broader sense, and between the citizen and state in a narrower one. According to the Social Doctrine of the Catholic Church, social justice concerns the social, political and economic aspects and, above all, the structural dimension of problems and their respective solutions. xii Thus duties, human rights, and equality are the main concerns of social justice. Social justice ensures that individuals fulfill their societal roles and receive what is their due from society. Social justice assigns rights and duties in the institutions of society. It enables people to receive their basic benefits and burdens. The relevant institutions include income, wealth, utility, taxation, social security, healthcare, education, social welfare, public transportation, labor law, political rights, and other public services. Social justice has a close connection with equality. Even though justice and equality are closely connected, they are not the same thing. Let us look at the below picture. In the first image, it is supposed that everybody will benefit from the same supports to see the game. They are being treated equally. In the second image, each individual is given a different support to make it possible for them to have equal access to the game. They are being treated equitably or justly.

6 192 In his book A Theory of Justice Rawls holds that social justice concerns the protection of equal access to liberties, rights, and opportunities, as well as taking care of the least advantaged members of society. Thus, whether something is just or unjust depends upon whether it promotes or hinders equality of access to civil liberties, human rights, opportunities for healthy and fulfilling lives, as well as whether it allocates a fair share of benefits to the least advantaged members of society. Intergenerational Justice We have been facing threats to our natural environment and the risk of depletion of natural resources for a long time. Despite scientific and technological progress, we all, at the present time, still remain highly dependent upon our environment and upon natural resources. If all the world s resources are used up, what will happen? What should we do if our contemporaries owe our descendants? What makes our relations with our successors so different from our relations with our contemporaries? These questions lead to discussion about intergenerational justice as well as sustainable development. Intergenerational justice may be defined as the justice between generations. In other words, it is distributive justice across generations. When we consider the relationship between our generation and our successors, we usually consider our current actions and their consequences that may harm or

7 193 benefit later generations. For example, is it fair or just if people in our generation consume all scarce natural resources? Is it just if our generation incurs a lot of debt, which later generations have to pay? International Justice We have also been facing problems of violence, conflicts, wars, and terrorism for a very long time. We cannot deny that one of the main causes of these problems is injustice. Like intergenerational justice, international justice is justice between the groups. It is distributive justice among nations. Some may say that distributive justice is applied only within states. It may be argued that it makes no sense to speak of justice and injustice beyond the boundaries of states because there is no international sovereign dealing with conditions for justice. In fact, in as long as the problem of justice and injustice among nations does not become one of our main concerns, the world will never be free from wars and terrorism. We cannot deny the fact that we, all peoples, are human beings before we become Americans, Russians, Chinese, Indians, Thais, Christians, Hindus, Buddhists, and so on. To be human is a universal fact. Thus international justice should become a main concern for all nations. The concept of cosmopolitan justice should be put into consideration in moral philosophy. The two main strands of Western modern moral philosophy, Utilitarianism and Kantianism, are alike in the sense that they are based on an axiom of equal value: for Kant everybody is a participant in the kingdom of ends and entitled to equal respect, whereas for Bentham and Mill everybody counts for one in the sense that all units of utility are given the same weight regardless of the identity of their owners. We live in the age of globalization. At this age it is fast and convenient for peoples in the world to communicate and visit one another. We cannot deny that some decisions or actions can affect the whole world. The talk of international justice and injustice should be seriously discussed. For example, if Iran and North Korea are prohibited from producing nuclear weapons, why are other countries allowed to do so? Conclusion In Plato s Republic Thrasymachus states that justice is the advantage of the stronger. For him, might makes right. Let us see an example from Aesop s Fables: The Wild Ass and the Lion. A wild ass and a lion entered into an alliance so that they might capture the beasts of the forest with greater ease. The Lion agreed to assist the Wild Ass with his strength, while the Wild Ass gave the Lion the benefit of his greater speed. When they had taken as many beasts as their necessities required, the Lion undertook to distribute the prey, and for this purpose divided it into three shares. I will take the first share, he said, because I am King: and the second share, as

8 194 a partner with you in the chase: and the third share (believe me) will be a source of great evil to you, unless you willingly resign it to me, and set off as fast as you can. xiii Unjust power affects people everywhere. The big question is: How can we solve this problem? Endnotes i Other cardinal virtues include wisdom (prudence), fortitude (courage), and temperance (moderation). ii See F41063EDF6FE%7D/Restorative.vs.retributive_justice.pdf iii See Michael Rosen and Jonathan Wolff (eds.) Political Thought. Oxford University Press: Oxford, p iv See Aesop s Fables, trans. V. S. Vernon Jones Wordsworth Editions: Ware, p v See The New Jerusalem Bible, 2 Thessalonians 3:10. vi See Stanford Encyclopedia of Philosophy: vii Robert Nozick Anarchy, State, and Utopia. Blackwell: Oxford, p viii Robert Nozick Anarchy, State, and Utopia. Blackwell: Oxford, p ix John Rawls A Theory of Justice. Oxford: Clarendon Press, pp x Some thinkers like Brian Barry and Matt Matravers hold that distributive justice is similar to social justice. See Brian Barry and Matt Matravers Justice in Routledge Encyclopedia of Philosophy, Vol. 5, ed. Edward Craig, London: Routledge, pp xi The first modern usage of the term social justice is attributed to Catholic thinkers from the 1840s. The concept of social justice can be traced back to the theology of St. Augustine. xii Pontifical Council for Justice and Peace Compendium of the Social Doctrine of the Church. Libreria Editrice Vaticana: Vatican, pp xiii See Aesop s Fables, trans. George Fyler Townsend No.100. Questions for Further Reflection 1. What is the difference between corrective and distributive justice? 2. What is the difference between distributive, social, intergenerational, and international justice? 3. How do intergenerational relations differ from relations among contemporaries? 4. Why should we care for other nations? 5. Why should we consider justice an essential and necessary virtue? Recommendations for Further Reading Barry, Brian and Matravers, Matt. (1998). Justice in Routledge Encyclopedia of Philosophy, Vol. 5, ed. Edward Craig, Routledge: London, pp

9 195 Rosen, Michael and Wolff, Jonathan. Eds. (1999). Economic Justice, Justice between Groups in Political Thought. Oxford University Press: Oxford, pp Sriwarakuel, Warayuth. (2009). Prospects for the Integration between Solidarity and Multiculturalism in Thai Society in Religion, Politics and Globalization: Implications for Thailand and Asia. Imtiyaz Yusuf and Canan Atilgan (eds.). Konrad Adenauer Stiftung: Bangkok, pp สรย ทธ ศร วรก ล (1986) ธรรมชาต ของความย ต ธรรม (The Nature of Justice) วารสารธรรมศาสตร ป ท 15 ฉบ บท 4 สาน กพ มพ มหาว ทยาล ยธรรมศาสตร หน า วรย ทธ ศร วรก ล (1999) มโนท ศน ของความย ต ธรรม (The Concept of Justice) วารสารแสงธรรมปร ท ศน ป ท 23 ฉบ บท 3 สาน กพ มพ ว ทยาล ยแสงธรรม หน า