Chapter 7 – Justice
Retributive Justice
Corrective or Compensatory Justice
Distributive Justice (burdens and benefits)
Aristotle: Justice is the perpetual will to render to each his own (or his due).
Marx: From each according to his ability, to each according to his needs.
All theories of justice contain a formal commitment to equality, even if they don’t
guarantee equal outcomes.
Formal equality: like cases are to be treated alike (and different cases treated
differently).
Procedural justice: rules are to be applied equally to all who fall under them, with
impartiality and fairness.
Substantive justice: justice in the distribution of the burdens and benefits available in
society.
John Rawls, A Theory of Justice
Justice as Fairness
Principles of justice for the basic structure of society are the object of original
agreement.
The basic structure of society distributes social primary goods.
The basic structure largely defines one’s life prospects.
“Representative” persons
The principles of justice are those “that free and rational persons concerned to further
their own interests would accept in an initial position of equality as defining the
fundamental terms of their association”, the forms of social cooperation and
government. (p. 246)
The principles of justice will determine the basic rights and duties of people, and the
division of social benefits.
Original position > Veil of Ignorance > Fairness > Mutual Advantage
Choosers in the original position will not choose the principle of utility.
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General contention of justice: “All social values – liberty and opportunity, income and
wealth, and the bases of self-respect – are to be distributed equally unless an unequal
distribution of any, or all, of these values is to everyone’s advantage.” (p. 255)
First Principle: equal basic rights and duties
First Principle (equal civil liberties principle): each person is to have an equal right to the
most extensive basic liberty compatible with a similar liberty for others.
Second Principle: social and economic inequalities are to be arranged so that they are
both a) reasonably expected to be to everyone’s advantage, and b) attached to
positions and offices open to all.
Second Principle:
a) equal opportunities
b) inequalities of wealth and authority are permitted only if they benefit the least well-off
(called “the difference principle”).
Serial and lexical order.
The two principles are the maximin solution to the problems of social justice.
Nullify the “accidents of natural endowments and contingencies of social
circumstances”. (p. 249) – arbitrary from a moral point of view.
Social contract as a hypothetical agreement that has explanatory and justificatory
power; rational choice or agreement.
Method: reflective equilibrium
Principles of justice that order the basic structure of society are ones that free, rational
and equal persons could agree to. This reflects the common tendency in theories of
justice to try to reconcile the restraints of justice with the liberty and autonomy of
persons.
Robert Nozick ‘Anarchy, State and Utopia’ defends a minimal state – libertarianism
Entitlement theory: justice in “holdings”. “Holdings” better than “distribution” because
distribution suggests a central distributor – someone who doles out the goods and
resources of society.
Entitlement theory has three parts:
1. Original acquisition of unowned things; “A person who acquires a holding in
accordance with the principle of justice in acquisition is entitled to that holding.”
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2. Transfer of holdings: “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.”
A distribution is just if it arises from another just distribution by legitimate means: by
just initial acquisition or just transfer.
3. The rectification of past injustice in holdings.
If current holdings are the product of past injustice, we have to identify what
would/might have happened if the injustice had not occurred, and redistribute goods
so as to approximate the state of holdings that reflect that alternative.
Justice as entitlement is historical, rather than patterned (or end-result), as determined
by an alternative current time-slice principle of justice.
Egalitarianism, utilitarianism, welfare economics, and Rawls’s two principles of justice
as fairness are all time-slice views.
Why prefer a historical account: we care not just about how social goods are distributed
but also how that distribution came about.
If what we should have now depends on what we deserve (by our past wrongdoing, our
past productive efforts, our creativity, etc.), then the history of current holdings matter to
their justice. Historical theories hold that the past actions of people are relevant to what
they are entitled to at any given time.
Two states of distribution could be structurally identical, but one could be just and the
other unjust.
Other theories are historical and patterned: to each according to his/her efforts, moral
merit, usefulness to society, productive contribution to GDP, etc.
Some other conceptions are patterned but not historical: each according to his/her IQ,
need.
The principle of entitlement is not patterned. “From each as they choose, to each as
they are chosen.” (p. 273)
Liberty upsets patterns. Wilt Chamberlain. “The socialist society would have to forbid
capitalist acts between consenting adults.” (p. 275) Issue of stability over time.
Patterned views focus on the recipients of goods. But they ignore the productive actions
that produce goods and the liberty rights of those who hold goods to voluntarily transfer
them to others (through exchange, gift, bequeathal, etc.).
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Patterned principles require constant redistributive activities. Redistribution violates
people’s rights. Taxation of earnings from labour is morally equivalent to forced labour.
Property rights essentially include the right to determine what shall be done with what
property. Indeed, property rights just are a bundle of liberty rights, operating within a set
of constraints derived from John Locke.
Redistribution involves appropriating the actions of some people for the benefit of
others. This makes others (or the state) part owners of those with productive capacities.
Rights operate as moral side constraints, making some means to even good ends
impermissible.
James Dwyer, “Illegal Immigrants, Health Care and Social Responsibility”
Two conflicting views:
1. If a person has no right to be in our country, he/she has no rights to social services,
including health care;
2. Health care is a human right and so should be provided even to illegal immigrants.
Dwyer rejects both views.
(Possible?) Relevant considerations: scarce health care resources; illegal immigrants
have broken a law; physicians have professional ethics requirements; states have the
right to determine their own immigration policies; there is a human right to
equal/adequate health care; immigrants come voluntarily and take on the work they do
freely.
We need to take responsibility for the existence of illegal immigrants in our societies.
We should work to improve their wages and working conditions, and we should provide
health care to them as members of our communities. This would reduce their
vulnerability and promote social and communal respect for these workers, and
strengthen social solidarity and ethical concern for all members of society.
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