Political Philosophy: A Very Short Introduction

Chapter 5 Justice

Lorenzetti’s Allegory of Good and Bad Government has no place for the figure of Liberty, for reasons that we saw in the previous chapter, but Justice appears not just once but twice. She is one of the virtuous figures ranged alongside the good ruler, but she also appears separately, at the very heart of the fresco, a majestic figure seated alone between the two groups of figures representing good and bad government respectively. Why did Lorenzetti paint Justice twice? I think he wanted to convey the idea that justice is more than simply a virtue that rulers should possess: it is fundamental to the institutions that turn a mass of individuals into a political community in the first place. Lorenzetti’s main figure holds a pair of scales, and from each of these a rope descends to the figure of Concord, who braids them into a thicker cord that then passes round the long line of citizens and up to the hand of the ruler. Justice, Lorenzetti is implying, binds the citizens one to another, and then all of them together to government. In this, he was following in a long-standing tradition which viewed justice as central to the justification of political authority. As St Augustine had asked, nearly a millennium earlier, ‘justice removed, then, what are kingdoms but great bands of robbers?’

Saying that justice is of cardinal importance to good government is one thing; saying what justice really means is quite another, and this is the question that will occupy us throughout this chapter. One thing we can be certain of is that the answer will not be simple. Lorenzetti’s figure tells us that. One scale holds an angel representing Distributive Justice, and she is simultaneously severing the head of an evil-doer with a sword and placing a crown on the head of a meritorious recipient. The other scale supports Commutative Justice, and she appears to be conducting an exchange between two tradesmen, presumably ensuring that the metalworker’s spear and the weaver’s bale of cloth are of equal value.

_{11. Justice from The Allegory of Good and Bad Government by Ambrogio Lorenzetti.}

Justice, then, has something to do with punishment and reward, and something to do with equality, but how should we define it? A very old definition, offered by the Roman Emperor Justinian, states that ‘justice is the constant and perpetual will to render to each his due’. Taken by itself, this may not seem very informative, but it does at least point us in the right direction. First, it emphasizes that justice is a matter of each individual person being treated in the right way; it is not a matter of whether society in general is prosperous or poor, culturally rich or culturally barren, and so forth. This is not to say that the idea of justice for groups can be dismissed out of hand — and we shall be looking at it more closely in the following chapter — but the primary concern of justice is with how individuals are treated. Second, the ‘constant and perpetual will’ part of the definition reminds us that a central aspect of justice is that people must be treated in a non-arbitrary way: there must be consistency in how one person is treated over time, and there must also be consistency between people, so that if my friend and I have the same qualities, or have behaved in the same way, we should receive the same benefits, or the same punishment, depending on the circumstances.

The fact that justice requires consistency in treatment explains why acting justly is so often a matter of following rules or applying laws, since these guarantee consistency by laying down what is to be done in specified circumstances. But consistency alone is not enough for justice, as we can see if we imagine a rule that required all red-haired people to be put to death, or all those whose names begin with a ‘D’ to be paid at twice the normal rate. What these examples bring out is that justice requires relevance; if people are going to be treated differently from one another, it must be on grounds that are relevant to the treatment in question. This also implies that where there are no relevant grounds on which to discriminate, justice requires equality: everyone should be treated in the same way. How far equal treatment is required in practice remains to be seen, but we now have a second element of justice to set beside simple consistency: justice demands that people should be treated equally unless there are relevant reasons for treating them differently.

We can also add a third core element: the idea of proportion. This tells us that when people are treated differently for relevant reasons, the treatment they receive should be proportionate to whatever they have done, or whatever feature they have, that justifies the inequality. Many people believe, for instance, that if people work hard at their jobs that is a relevant reason for paying them more. But, for justice, there must also be proportionality: if Smith works twice as productively as Jones, he should be paid twice as much as Jones, but not ten times as much.

We have squeezed a fair amount of information about justice out of Justinian’s formula, but we have not yet been able to say exactly what it is that people are owed as a matter of justice, nor on what grounds, if any, we are justified in treating them differently. And in fact there are no easy answers to these questions. This is partly because people frequently disagree with each other about what justice requires, in concrete terms, but also because the answer that anyone will give will depend to a great extent on who is doing the treating, what treatment is being given, and in what circumstances. To a very large extent, our ideas of justice are contextual, meaning that before we can decide whether a rule or a decision is fair we have to know a good deal about the situation in which it is being applied. Let me illustrate.

Suppose that I have been given £100 to allocate between five people who are now standing in front of me asking for their share of the money. What does justice tell me to do? So far, very little: it tells me that I should treat them consistently, that if I treat them differently this should be for relevant reasons, and that my allocations should be proportionate. Now let us fill in the context in different ways and see what allocations suggest themselves. The five people might be my employees, and the £100 might be the bonus they have earned this week, in which case I should consider how much each has contributed to our joint enterprise and reward them proportionately. Alternatively I might be an aid worker who has been given cash to distribute to allow starving people to buy food, in which case I should try to estimate what the relative needs of the five are and give more to those in greater need. Or again, the £100 might be the prize that has been offered for an essay competition, in which case what justice requires is that I should give it all to the person who has submitted the best piece. Or perhaps the £100 is a small lottery win, and the five people and I are members of a syndicate, in which case, clearly, we should share the sum equally between us.

Most readers, I imagine, will find my proposals about how the sum of money should be allocated in different circumstances more or less self-evident, and what this shows is that, although doing justice is a complex business, we already have a good intuitive grasp of what it involves in practice. Justice is less like a measuring rod than a box of tools: faced with a task — a decision to be reached or a rule to be applied — we know in most cases which tool to pull out and use. What is harder is to express this knowledge in the form of general principles — to create a theory of justice. But, as political philosophers, we need to develop a theory, because there are going to be cases in which our intuitions conflict, or perhaps run out altogether. This is particularly the case when we have to think about what social justice involves — justice not simply between individuals, but across a whole society. I shall explore this controversial idea later in the chapter. But first we need to explore the general principles of justice that we apply even in simple cases like the one above.

Notice to begin with that justice very often has to do not only with the treatment that people receive but with the procedure that is followed in order to arrive at that outcome. We can see this by thinking about criminal justice. It matters, of course, that guilty people are punished in proportion to their crime and that innocent people go free — that is what a just outcome requires — but it is also important that proper procedures are followed in arriving at a verdict, for instance that both sides are allowed to state their case, that the judge has no vested interest that would make him lean in one direction or the other, and so on. These procedures are important partly because they tend to ensure that the right verdicts are reached, but over and above that they matter because they show a proper respect for the people who are standing trial, who want to have the chance to state their case, to have the same rules applied to them as to other defendants, and so on. Imagine an arbitrary judge who decides each case by consulting tea-leaves, and suppose one day he happens to get all the verdicts right: has justice been done? The defendants would not think so (indeed studies have shown that in such circumstances people care more strongly about having fair procedures applied to them than about the actual outcome of their case) and nor should we.

In some cases, justice is entirely a matter of the procedure that is used to reach a decision — there is no independent standard that we can apply to the outcome. For instance if there is a nasty or dangerous job that needs to be done, and no reason why anyone in particular should do it (such as having special skills), we may draw straws to pick someone, and this is a fair procedure because everyone stands an equal chance of being chosen. Or a team may have to choose a captain, and decide this by voting — again a fair procedure because everyone’s preference is counted equally. Occasionally procedures such as these have been used to decide bigger issues — for instance, random methods have been used to decide who is to be drafted into the army, or to select people to hold political office — but generally we are reluctant to understand justice in purely procedural terms. We want procedures that produce outcomes that are not merely random but are fair in a more substantial sense.

So what principles do we apply to decide when outcomes are fair? In the light of what was said earlier about the core concept of justice, an obvious candidate is equality — everyone should get the same amount of whatever it is we are allocating. This was the principle we applied in the case of the lottery win, and it applies more generally where there is some benefit to be distributed, or some cost to be borne, and there is nothing relevant that enables us to distinguish between the possible recipients. In these circumstances, there are two reasons favouring equality: the first is simply that any other way of allocating the benefit or the cost is bound to be arbitrary, in the absence of relevant reasons to discriminate, and the other is that we are likely to do more good all round by sharing both benefits and costs equally. Going back to our original case, suppose I know nothing at all about the five people claiming the £100, and I have to decide between giving it all to one person picked at random, and sharing it equally among the five. Procedurally either decision is a fair one, but the second outcome is likely to be better because, other things being equal, the first £20 is worth more to someone than additional increments. Suppose for instance that it turns out that the five people are starving: then if I give one person the whole £100, the other four may die. Of course there are circumstances in which the opposite holds — where you need £100 to stay alive, and £20 is useless. If I knew that, I should pick one person at random, since this at least gives each person a one in five chance of surviving. But cases like that are the exceptions. In general it is better to share benefits equally, and the same applies to costs — by spreading them as widely as possible, we make it less likely that anyone will suffer badly.

One principle of just distribution, therefore, is equality, and some political philosophers have claimed that it is the only principle — all justice is a kind of equality. But I believe this confuses the formal principle contained in the very definition of justice — that people should be treated equally unless there are relevant differences between them — with the substantive principle that everyone should actually receive the same amount of benefit or the same amount of cost. Because very often there are relevant differences between people. This is quite clear in the case of punishment, for example: no one has ever thought that everyone, innocent or guilty, parking offender or serial killer, should receive the same amount of punishment regardless. And the same applies when benefits are being allocated.

One good reason for not treating people in the same way is that they have different needs. No one objects to hungry or sick people being given more resources than people who are well-fed and healthy, at least so long as they have not created their own needs by behaving irresponsibly. However not everyone agrees that this is demanded by justice. There is a long tradition that holds that helping the needy is a matter of charity, which means it is something that people should be encouraged, but not required, to do. Lorenzetti would almost certainly have taken this view. Neither of his Justice figures shows any inclination to give handouts to the poor. That job is reserved for Magnanimity, who sits with a tray of gold coins on her lap to be dispensed when needy people appear. But as the state has come to assume responsibilities that were previously reserved for smaller communities — religious communities, artisans’ guilds, and the like — so need has become a major element in the idea of social justice. The state is expected to ensure that each citizen has an income sufficient to cover basic needs for food and clothing, access to adequate medical care, and so forth.

But is it possible to distinguish genuine needs from other demands that people may make in the name of justice? Some critics think of needs as a kind of black hole into which all of a society’s resources are likely to disappear if we say that justice requires us to meet them. So what does it mean to be in need? It means to lack something essential, where what is essential is determined partly by the standards of the society to which you belong. Some needs are universal, because they involve bodily capacities that are vitally important to human beings everywhere — people need to take in so many calories per day to be adequately nourished, they need access to clean water if they are not to contract diseases, and so on. But other needs are more variable because they depend on what is expected in the society someone inhabits. Everyone needs to be adequately clothed, but what counts as adequate clothing will vary from place to place. Everyone needs to be mobile — to have the capacity to move from place to place — but the extent of mobility, and the form it takes, will likewise vary. Needs, then, are the set of requirements that must be fulfilled if someone is to live a decent life in the society to which she belongs. They are socially relative, to some degree, but they are not merely subjective, as the critics claim. In economically developed societies, it is quite feasible to meet every citizen’s genuine needs and still have ample resources to devote to other purposes — indeed there are sufficient resources in these societies to meet (locally defined) needs everywhere, if the political will existed to do so.

If unequal need is a relevant reason for departing from equality in one direction, unequal desert or merit takes us away from equality in a different direction. Again we must ask, what does it mean to deserve something? It means to have acted in a way that calls for a particular mode of treatment as a response to what you have done. A person deserves favourable treatment — a reward, an income, a prize, etc. — for acting in a way that others regard as admirable in some way, for instance contributing time and effort to a project that brings benefit to others; she deserves unfavourable treatment — blame or punishment — when her actions are deplorable, for instance involve harming other people. The basis on which you deserve varies from case to case, so we cannot say anything more specific about what someone has to do to become deserving. It is worth, however, underlining the link between desert and responsibility. What we deserve must depend on actions or performances for which we are responsible, so someone can escape punishment, for example, by showing that he was not responsible for the behaviour that caused the harm — say if he was being forced to act as he did, or if he was deranged. Equally, on the positive side, we cannot claim credit for the results of our actions that we did not intend and could not have anticipated. If I save a stranger’s life, I deserve some reward — heartfelt thanks, at least — but if I rudely push him out of my way as I hurry along the street, and as it happens cause an assassin’s bullet to miss, I deserve nothing of the sort. Saving his life was no part of my intention, and so I cannot claim responsibility for it.

Desert plays a central role in most people’s understanding of justice, but like the need principle it has also come under attack from various quarters. Critics often claim that it can too easily be used to justify large inequalities in income and wealth, and it is certainly true that highly paid people are eager to claim that their contribution to society is such that their salaries are no more than a fitting reward for what they have done. Perhaps, though, this is less a problem with the idea of desert itself than a problem of finding an accurate way of measuring the size of contributions. A more philosophical objection holds that people are never really responsible for their behaviour in the strong sense needed to justify claims about desert. Look behind a person’s performance and you find a train of causes that stretches back beyond the person herself. She was born with certain capacities and certain propensities, including propensities to choose to behave in one way rather than another, and had others instilled in her by her family, so any ‘credit’ for good behaviour or ‘blame’ for bad behaviour should really be directed to her genes and her parents. This objection to desert raises fundamental questions about personal responsibility that I cannot tackle here, but I think it is worth noticing what a radical step it would be to dispense with the idea altogether. If we were entirely to stop praising and blaming, rewarding and punishing, other people, our social interaction would change in a very basic way — indeed we would hardly be treating them as people at all. Once we recognize this, we can see that the real issue is not whether desert should play any part in the way we understand justice, but how large a part it should play. In particular, how far should it be allowed to govern the distribution of material resources like income and wealth?

Need and desert give us two very basic reasons why justice can require us to treat people differently. There are other reasons too, of a less basic kind. For instance people often form legitimate expectations about how they are going to be treated which may have nothing to do with either need or desert, and sometimes justice demands that we should honour these expectations. Promising and contracting are obvious instances of this. Reverting to my original example, it may be the case that I have promised £100 to one of the five people now standing before me, in which case that may be a good enough reason to give him the whole sum. Another set of reasons that may justify special treatment include restitution or compensation. Someone who has unjustly been deprived of a benefit to which they were entitled has a claim to have that benefit restored to them, or failing that, to be compensated by being given something else of equivalent value. (I describe these reasons as less basic because they presuppose that the expectations have been formed in a context that is already substantially just.) Once again we see that doing justice is a complex matter, that what counts as giving someone his or her due is to a large extent contextually determined.

So far I have been looking at justice in general terms, and not specifically at the role played by governments in promoting it. In the remainder of the chapter I want to explore the idea of social justice — the idea that we can put in place a set of social and political institutions that will ensure the just distribution of benefits and costs throughout society. This idea first emerged in the late 19th century, and stood at the heart of political debate throughout the 20th. It requires the state to become much more closely involved in distributive issues than was possible for states in earlier periods, even if their members had wished it. It is also a controversial idea: whereas only a few extreme sceptics have attacked the idea of justice as such, social justice has been pilloried, mainly by critics from the libertarian right, who see it as corrosive of personal freedom, and especially of the economic freedom that a market economy requires.

Let us look a little more closely at the attack on social justice. Critics such as the Austrian economist-cum-philosopher Friedrich Hayek argued that there was a fundamental error involved even in talking about social justice in the first place. According to Hayek, justice is fundamentally a property of individual actions: an action is unjust when it violates a general rule that a society has put in place to allow its members to cooperate with one another — so, for instance, theft is unjust because it violates a rule protecting property. But if we look at how resources — money, property, employment opportunities, and so forth — are distributed across a society, we cannot describe this distribution as either just or unjust, since it results not from the actions or decisions of a single agent, but from the actions and decisions of millions of separate people, none of whom intended to create this or any other distributive outcome in particular.

Hayek is certainly right to point out that ‘social distribution’ cannot be attributed to any single distributing agency, given the complexity of any society in the contemporary world. But what he overlooks is that the distributive pattern that we observe around us does, in its general outline, depend upon the institutions we have created, consciously or unconsciously — for instance the prevailing rules governing property and contracts, the system of taxation, the level of public expenditure on health care, education, and housing, employment policies, and so on. These are all institutions that can be changed by political decision, and so if we leave things as they are that is equivalent to a decision to accept the existing distribution of resources. Moreover we can understand, again in general outline if not in precise detail, what the effect of a proposed institutional change would be. To that extent, the distribution of resources across society — who gets which benefits, how wide the spread of incomes will be, etc. — is something that, in a democracy, is under our collective control. It is a perfectly reasonable, therefore, to ask what a fair distribution of social resources would look like — to ask what social justice would require us to do.

This is not to say, however, that social justice is something that we ought to pursue. Hayek’s second claim is that, in attempting to make the distribution of resources match up to our favoured principle of distributive justice, we would destroy economic freedom and thereby kill the goose that lays the golden eggs. Let us assume Hayek is right when he claims that a market economy is the most effective way of organizing production and exchange, and that any alternative would involve an intolerable reduction in living standards in economically developed societies. The question is whether pursuing social justice means turning your back on the market economy, or whether it is possible to pursue that aim through a market economy, albeit one that has been shaped in the right way, and has other institutions working alongside it.

Here we need to look at different ways of interpreting the idea of social justice. The most radical version, embraced by Marxists and some of the communitarian anarchists we encountered in Chapter 2, reduces social justice to the principles of equality and need. A just society, on this view, is one in which each member contributes to the best of his or her ability, but resources are distributed according to need, with any surplus being shared equally. There is no room here for the idea that people need incentives, or deserve material rewards for making their contribution. Could such a society exist? On a small scale it undoubtedly could. We have many examples of communities whose members practised social justice in this radical form among themselves. Most of these communities had a religious basis, and depended on religious authority to sustain the ethos whereby each member worked for the common good of the community without expecting any personal reward, but there are also instances — most notably the kibbutzim in Israel — of secular communities achieving the same goal. These communities dispensed with the market, at least internally. They relied on what are sometimes called ‘moral incentives’ — people contributing either because they simply believe that they should, or because they feel the eyes of their neighbours upon them.

The question is whether a large society could practise social justice in this form. It seems that the informal coordination of people’s behaviour that can occur in a small community cannot happen here — the economy must either be market-based, giving people incentives to produce the resources that other people want to consume, or state-directed, with a central authority planning what is to be produced and directing individuals according to the plan. Although in theory one can imagine both market and centrally planned economies that do not rely on material incentives, in practice this has proved impossible to achieve (attempts were made in the mid-20th century by Communist regimes in China and Cuba to replace material by moral incentives, but in neither case was the experiment successful). Pursuing social justice in its radical form does seem to require dispensing with the market and reconstructing society on a quite different, communitarian basis.

There is, however, a less radical view of social justice which has been embraced by many democratic socialists, and also by many contemporary liberals. On this view, social justice requires the equal distribution of some social benefits — especially equal rights of citizenship such as voting and freedom of speech. It requires some benefits to be distributed on the basis of need, so that everyone is guaranteed an adequate income, access to housing and health care, and so forth. But it also allows other resources to be distributed unequally, so long as there is equal opportunity for people to try to acquire a larger share. These inequalities may be justified on grounds of desert, or on the grounds that by giving people material incentives to work hard and produce goods and services that other people want, everyone in society benefits.

_{12. John Rawls, author of the hugely influential A Theory of Justice.}

Perhaps the most influential interpretation of social justice of this kind is the one developed by John Rawls, who in his book A Theory of Justice argued that a just society must fulfil three conditions. First, it must give each member the most extensive set of basic liberties (including political liberties like the right to vote) that is consistent with the same liberty for everyone else. Second, social positions carrying greater advantages — higher paying jobs, for instance — must be open to everyone on the basis of equality of opportunity. Third, inequalities of income and wealth are justified when they can be shown to work to the benefit of the least advantaged members of society — in other words when they provide incentives that raise the society’s overall productivity, and therefore allow more resources to be channelled to those at the bottom of the heap.

Rawls’s theory of social justice explicitly makes room for a market economy: his third principle is formulated so as to allow for the possibility that people may need to keep at least part of the gain that they can make through producing goods and services for the market if they are going to be sufficiently motivated to work hard and use their talents in the most productive way. This undermines Hayek’s claim that social justice and market freedom are conflicting goals. On the other hand, a market economy governed by Rawlsian principles would look quite different from the economic systems that exist in most liberal democracies today.

To begin with, Rawls’s idea of equality of opportunity is quite radical. It is not enough that positions of advantage should be given to those who, at the moment of selection, can be shown to be better qualified to hold them. It must also be true that applicants have had an equal opportunity to become qualified, which means that, from the moment of birth on, people of equal talent and equal motivation should have been given the same chances, in school and elsewhere. Clearly this condition is very far from being realized in any existing society. Furthermore, Rawls’s third principle, usually called ‘the difference principle’, permits inequalities only when they can be shown to benefit the worst off. In practice this would mean that governments should set tax rates so that benefits were continually redistributed from rich to poor, up to the point at which the productivity of the better off begins to decline and the tax yield therefore decreases. Although most democratic states have tax regimes that are somewhat redistributive, they all fall far short of this requirement. Taxes are set in such a way that an adequate level of welfare services is provided for all citizens, but no government attempts, as a former Labour Chancellor, Denis Healey, was reported to have proposed, to ‘squeeze the rich until the pips squeak’.

My own view is that a theory of social justice should retain Rawls’s first two principles — equal liberty and equality of opportunity — but replace the difference principle with two others. The first is that of a guaranteed social minimum, understood in terms of the set of needs that must be met to give every citizen a decent life; as I indicated earlier, this minimum is not fixed, but changes between societies and over time. The second is a principle of desert: inequalities of income and wealth should be proportional to the relative contributions different people make, measured by their success in producing goods and services that other people need and want. Like Rawls’s theory, these principles do not entail getting rid of the market economy, but they do require the state to maintain an extensive welfare system, and to adjust the legal framework within which the market functions so that there is as close a link as possible between what people contribute economically and what they receive by way of income. This would require some big changes to the way that capitalist economies currently operate, since existing rules of property ownership and inheritance allow people to reap large rewards by virtue of luck, inherited wealth, corporate position, and so forth — factors that are unrelated to their contribution to society. Indeed the pursuit of social justice may point us towards a form of market socialism in which economic enterprises are owned and controlled by those who work in them, rather than by outside shareholders, so that profits can be shared among the actual producers. This is not the communist utopia favoured by Marx and other radical socialists, since it allows harder working and more talented individuals to reap the fruits of their labour, but it still takes us far beyond the political agenda of the present day, at least so far as the liberal democracies are concerned.

Like democracy, social justice is an unfinished project. The political philosopher’s job is to tell us, in outline, what a just society would look like, without either building castles in the air, or over-adapting to the political realities of the moment. Many now believe that the quest for social justice has been stalled by global developments which reduce the power of any state to regulate the market economy as justice demands. I shall return to this question in the final chapter of the book. But first I want to turn to a different challenge to justice as it has traditionally been understood — the challenge posed by feminists and multiculturalists.