On Justice

After Anglo-American Academic Philosophy (AAAP) took the “scientific turn” in the early 20th Century, many analytical philosophers perceived their role to be one of establishing universal truths that were similar in form to scientific truths. Because concepts such as beauty, justice, free will and knowledge are notoriously vague the project to nail down some essential, underlying truth about them became inevitably reductionist as an attempt was made to reduce such concepts to universal laws.

Since WWII the most influential of these attempts to reduce the concept of justice to universal laws was John Rawl’s 1971 opus, A Theory Of Justice, in which he famously defined, the liberty principle:

“…each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others.”

And the difference principle:

“Social and economic inequalities are to be arranged so that they are to be of the greatest benefit to the least-advantaged members of society”

According to Rawls these were to be adopted as the Universal core values underpinning our concepts of justice. Perhaps the first thing to note is that both of these principles would have been simply incomprehensible for most of human history and that these supposedly universal laws are packed with liberal assumptions and values that are clearly historically, geographically and theoretically situated. Secondly, we might note that although in “the West” the liberty principle is almost universally accepted, if not applied, the difference principle seems to be neither accepted nor applied.

For me the principled, conscientious and important attempt by Rawls to determine universal principles of justice actually only goes to show that the philosophical project to draw up these universal laws is doomed to failure. It illustrates that justice is not a fixed, universal concept or state. It is a contingent normative value. What is “just” is a matter of judgement regarding a specific set of contingent circumstances and guided by the application of a number of contingent criteria.

The criteria we use to determine what is just are numerous and contingent but they might include:

Acceptability – is there a social consensus that an action is morally acceptable/unacceptable?

Responsibility – is it clear who will be/was responsible for an action?

Intent – can it be established if the action was/will be undertaken purposefully?

Motive – if purpose is/was involved what led to the belief that the purpose was desirable/necessary?

Volition – could the instigators of the action choose/have chosen not to take the action?

Proportionality – is/was the action proportional to the circumstances?

Predictability – can/could the consequences of the action be predicted?

Investigation – are/were sufficient efforts made to discover the likely consequences?

Duty Of Care – is/was sufficient care taken to avoid negative consequences?

Consequences – After the action was taken were the outcomes positive/negative and how so?

The justice of any reaction to an action (including judicial punishment) can be judged by criteria such as:

Proportionality – is the reaction morally proportionate to the action?

Prevention – will the reaction prevent further examples of the action?

Affordability – can the economic cost of the reaction be afforded?

Reliability – to what extent can the facts of the action be established?

Acceptability – is there a social consensus that the reaction is morally acceptable?

Universality – could the reaction be applied to all who committed the action?

Punishment – will the reaction cause the agent guilty of the action to regret committing the action?

In any given situation these are questions to be asked not principles to be applied and they do not lead to universal answers because each situation is contingent and thus what is “just” is contingent.

In real-life deciding on what is just is a process of weighing the pros & cons of a range of criteria like the ones above and visiting and revisiting each criteria in light of what we decide with regard to the others and move towards conclusions.

One could reply that there must be underlying principles on which we can judge the answers to these questions, and that it is in defining those principles that we will find our principles of justice. Such underlying principles might include:

Proportionality – it seems basic to any concept of justice that actions & reactions are proportionate to what has gone before. Killing someone for stealing your pencil will appear to most to be unjust.

Volition – Simple logic suggests that one can only be held responsible for an action you could have chosen not to undertake. If you literally had “no choice”, then you had no choice and cannot be held responsible.

Intent – We tend to judge that actors are not entirely responsible for unintended consequences – if they made reasonable attempts to predict the consequences.

Some may say that I am committing the error here of making a circular argument that begs the question because the principles of proportionality, volition, intent and consensus need a concept of justice to be meaningful but I am using them to determine the concept of justice. They also appear as questions that I must ask to determine if an action or proposition is just. This is surely muddled thinking.

I would reply in turn that the accusation of muddled thinking itself relies on a circular argument that presupposes the very thing it is trying to prove, i.e. the problem of nailing down universal principles of justice only arises if you believe universal statements of what is “just” are possible, which I don’t.

In any event this sort of logical circularity causes philosophers a great deal of angst with entire careers spent trying to resolve such issues. But in real-life this type of circularity whereby concepts inform each other in a constant dialectical process is exactly how concepts like justice are socially defined.

In the arena of educational theory J. Bruner famously came up the idea of the spiral curriculum where students continually revisit ideas and processes as they move forward through the course so that new knowledge and experience inform their perceptions of things they learned earlier and vice versa.

I am arguing that in the real world notions of concepts like justice are defined, and constantly redefined, in just such a spiral and circular fashion; that concepts such as fairness and equality contain concepts of justice but are in turn integral to the concept of justice itself; and that moral philosophers should stop trying to resolve this abstract logical circularity and recognise that the real world interdependence of concepts is both inevitable and desirable.

This is not to suggest that issues of justice are entirely relative and that nothing can be said about justice because it is “all a matter of opinion” and “individual judgement”. On the contrary, Justice is a social concept arising out of man’s social nature and for an action or proposition to be called just there has to be a significant level of agreement that it is just.

An individual living alone on a desert island has no concerns about Justice. They simply do whatever they need to do to survive, to avoid pain and to enjoy pleasure. It is only when there is more than one person living socially that questions of justice arise because then inevitable conflicts arise about the allocation of space and resources. Friedrich Nietzsche might have argued that when there is more than one person then issues of resource allocation will be resolved by brute force, that the strongest will decide on the allocation of resources and that is how it should be.

But as societies become more complex and populations grow, this control-by-brute-force method of organising communities condemns us to constant conflicts to establish who is the strongest. So if we wish for a stable and peaceful society in which we can all prosper, we need to establish normative values of acceptable behaviour, including sophisticated concepts of what is just. Social life cannot exist without such a system, and there is considerable evidence that even non-human, social animals, such as baboons and wolves, have normative codes of behaviour, which we would recognise as being very similar to what we call moral codes. The point here is that normative codes are an inevitable of social life.

Anthropology and history show us that different societies have different concepts about what is just and over time a societies internal  notions of what is just inevitably change, but this still does not render decisions about what is just as entirely relative because by their very nature they are socially situated – i.e. they have to be agreed upon.

Individuals do not decide what is just; societies and communities do.

Some may argue that in monarchies or dictatorships it is the ruler who decides what is just but I would reply that in those cases the rulers actually decide what is the law, not what is just; that although the ruler may be able to assert their will over the population that population need not recognise this as justice. History is full of rebellions legitimised by accusations that the previous rulers acted unjustly.

So in conclusion, I would argue that concepts like justice (and, indeed, beauty, freedom equality and knowledge) are consensual concepts that are contingent and constantly changing through a spiral dialectical social process, and that the job of philosophy and philosophers is to constantly challenge the assumptions and arguments that each generation and each society uses to make these decisions – rather than trying to establish universal principles that would replace the moral dialectic with a definitive notion of the moral “truth”.

I Am Not A Number

Political and Philosophical Dispatches From An Individual Living In A Society


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