• probity (uprightness, honesty) and virtue
• legality and the exercise of processes serving the administration of rights, rewards and punishments

Justice (procedural, corrective and retributive - commutative and distributive in an exchange) is a social process - . The Shorter Oxford English dictionary associates justice with

1. the quality of being morally just or righteousness, fairness and equity in just conduct and dealing with others. Thus the practice of justice by someone may be considered a virtue which brings integrity to relationships with others. Self-interest is balanced with altruistic regard vis a vis respecting the rights of others. This self-referential altruism generates the GOLDEN RULE - not treating others any less fairly than we would wish to be treated by them.
2. maintenance of "right" via an exercise of authority or power so that the right can be vindicated with distribution of equitable reward/punishment. The administration (forms and processes) of law are thus revealed

So concepts of justice are important in understanding what is ethical, proper conduct - ensuring that what is done and ought to be done to others is fair, right and deserved (the punishment fits the crime)..

The process of justice both

1. constrains action - by rules, processes and procedures
2. defines duties - imperatives to act.

Forms of Justice

• procedural
  We might argue that in administering justice that fair, impartial rules and procedures should be applied.

• corrective
  Should the victims of crime or legal wrong-doing people receive appropriate recompense for the wrongs they suffer. What is appropriate? What criteria do we use? How do we recompense for the loss of a child by a hit and run driver?

• retributive
  The extent of the punishment (recompense for evil done) should fit the offence.
  1. It is better to be hanged for a sheep than a lamb.
  2. He embezzelled £ 3.4 million and was imprisoned for three years
  3. He broke into a house and stole goods to the value of £1500 and was imprisioned for 5 years.

• distributive
  Social exchange and distribution is pervasive. Uneven allocation of wealth is a human condition. We are born into families who have accummulated wealth over the years. Each person has their own physique, sex, talents and skills. We are in different places - each presenting random opportunity. Our talents may enable you to take advantage of an opportuhity - more than me.

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  All animals are equal but some are more equal than others.

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  Justice and Competitiveness

  In a competitive society where members compete in their pursuit of self interest with some self-referential altruism - problems of distributive justice obviously arise. There are the "haves and have nots". Some barely survive on their incomes whereas others through inheritence, profits, rents, dividends have wealth far in excess of their needs - for the "good life". Wealthy minorities and individuals may thus have greater freedom of action in the choices they make with scope to exert power and influence.

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  Who says that life is fair......but let them eat cake?

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  M. Antoinette (overheard snippet of conversation)

  Inequality of income

  Compared with the excessively rich top earners (note how jealousy and envy easily creep in), average earners are only slightly better off from those officially defined as "poor". The former have a disposable income/spending power with perhaps a small surplus to save enabling them to be comfortable and content in their good life.

  ...if a man had £20 a year for his income and spent £19, nine shillings and sixpence of it - he would be happy but....... if he spent £20 and one (penny), he would be miserable.

  As for Mr Micawber (Dickens - David Copperfield), those on subsistence incomes or below subsistence endure far more hardship than those on comfortable but average incomes. In terms of food, housing and general contentment the very wealthy may consume more and display less prudence but they may be no more content than the average earner.

  Rawls - Theory of Justice

  Rawls explores principles that shape the structure of just, "well-ordered" society and which guarantees
  • substantial and equally distributed basic liberties
  • genuine equality of opportunity
  • a defensible position relating to distributive equalities in wealth and income.

  He uses the notion of a "contract" and formulates an "original position" to overcome indeterminacies in defining concepts of justice. The contract represents useful, working principles when applied in a "fair procedure". If these work in practice and on review then our concepts about justice are verified - we achieve a "reflective equilibrium".

  Justice and Contract

  Rawls (1921- ) presses for "justice as fairness" - an argument based on Kantian and utilitarian principles. 

  In the UK, the Callaghan administration in the late 1970's sought to resolve tensions between employers and unions via a "social contract". The policy sought to hold back prices and incomes by voluntary restraint. However trade union ability to hold back sizeable wage increases collapsed as union leaders found it very difficult not to respond to the expectations and frustration of members regardling fairness. Fox in his seminal work " On Contract" explored the balances involved in collective agreements between trade unions and employers. He pointed out the imbalances of power that exist in reality and concluded that such contracts form a temporary holding position - not a consensus but a " best that we can get for the moment" given our situation and the cards we hold in the game.

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  The present UK government of Tony Blair whilst in opposition called for a "stakeholder society" . This itself may reflect aspirations for a new social contract.
  • What would be the important elements of a social contract?
  • How feasible is it to draw up a new, embracing social contract for today's society and economy?
  • How could such a social contract be implemented?

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  The Callaghan Social Contract didn't work. A stakeholder contract - which all would agree on - has not emerged. There was and is a lack of consensus on obligations and duties and what gives value. Utilitarianism fails because it cannot fully account for individual interests. Contracts note the interest of the parties, but existing patterns of inequality, advantage and disadvantage - cannot be ignored.

  The Original Position

  Rawls however recommends a starting position for a contract of justice - this is what he terms the original position - and he offers series of steps or requirements to get there. To define the original position for a contract of justice the task of the parties is
  1. to reach a consensus on the principles that govern the basic structure of the society they find themselves in. Rawls takes this society as (after Hume) being of limited generosity and moderate scarcity - these are the "circumstances of justice".
  2. The parties are instrumentally rational. They seek most efficient means. Being mutually disinterested, they are indifferent to whether others do well or badly compared to themselves.
  3. Choices are made behind a "veil of ignorance" (impartiality is an essential aspect of the concept of justice.) about
     1. our own talents and abilities and our social position.
     2. our ideas about what gives value to life (the good - religious and aesthetic ideals, tastes and preferences).

  4. We cannot choose principles of just society to suit ourselves - there are constraints. Our choices over principles are governed by considerations - essential to the concept of law. Principles must
     • have universal and general application
     • be able to provide definite answers where there is a conflict
     • be public/open, known and understood by all rather than the preserve of an elite group.

  5. we choose principles from tendered, alternative, reasoned conceptions of justice - each a plausible interpretation of "justice" applied within a basic social structure. The alternatives may include utilitarianism(s), idealist principles etc.

  Minimum Rules - Slicing the Cake

  How might we divide a cake fairly among members of a group?
  • we might let the cutter receive the last piece. Why? To end up with the best remaining share he/she will dish out slices as equally as possible.
  • If cut unequally, someone will get a larger share and the cutter cannot rely on the biggest slice being left over.

  Rawls suggests we need to apply two principles (method/rules) to determine how within a basic social structure. He argues that rationality demands adherence to

  • Liberty Principle
    Each person has an equal right to to a sound, adequate scheme of equal basic liberties compatible with a similar liberty/freedom for others.

    If social and economic inequalities exist these should be so arranged so that they are:

    1. reasonably expected to work to everyone's advantage and
    2. attached to positions and offices that are open to everyone

    This (Kantian) Liberty principle requires basic and universal respect for people/others as a minimum standard for all "just institutions".

  • Difference Principle
    Economic and social principles must ensure that
    • offices and positions open to all under conditions of fair equality of opportunity (the opportunity principle)
    • benefit must be available to the least advantaged members of society (the difference principle).

    There may be an ideal (concept) of morally equal, but natural inequalities and differences between people do exist. The liberty principle itself results in social/economic inequalities. These are natural not abberant - to be artifically constrained by a political or other dogma. The "difference principle" mediates the liberty principle. Difference must bring advantage to everyone. Benefit must be available even to the least advantaged (the OPPORTUNITY PRINCIPLE - reasonable utility is afforded to all) - social positions/offices must be accessible/open to everyone.

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  WWW References

  • Charles Kay on Rawls - Theory of Justice
  • Making a Moral Corporation
  • Chris Bertram's Political Philosophy Lectures 7 and 8 on Rawls

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  This resource was written by Chris Jarvis for the BOLA project.