Justice or nonsense?

Why should justice be the foundation of a society, and why not something else, say, honour or valour or wealth? What do we mean when we say justice? Do you mean the same thing as me? Dating myself to be sure, but would a Klingon from the Star Trek universe share your definition? So what is justice anyway?

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‘Justice is the constant and perpetual will to render to every man his due. Jurisprudence is the knowledge of divine and human affairs and knowledge of what is just and what is unjust’, or so writes Justinian in Institutes 1.1 in 533 CE.

“Iustitia est constans et perpetua voluntas ius suum cuique tribuens.  Iuris prudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia.”

This is Justinian’s answer to the question: What is justice? In his Philosophy and Real Politics, Geuss relates that ‘justice is the constant and unflagging will to render to each person what is due to him’ (or perhaps ‘what he’s entitled to’), and therein lies the rub: what exactly is one entitled to?

Geuss goes on to point out that entitlement was contingent to one’s place in society. Citizens were entitled to some things, resident aliens another, and slaves, pretty much nothing at all. In fact, giving a slave more than s/he was entitled to would be considered unjust, as it would be considered to be undeserved. As Geuss writes, ‘that to treat a slave as if he or she had any entitlements would be a gross violation of the basic principles of justice’. Of course, you are thinking, post-Enlightenment ‘all men are created equal’, or so the saying goes.

US-Camp_x-ray_detainees-Guantanamo-Bay-Jan-11-2002-Phot-Shane-T-McCoy-US-Navy-Creative-Commons-513x239[1]In practice, it’s been easy to sidestep the application of justice by redefining a certain group to be outside of some protected group. During the illegal aggression by the United States against Middle Eastern countries that resulted in extraordinary rendition of civilians spirited off to Guantánamo Bay, Cuba, off the coast of the United States and outside of their jurisdiction, their acting regime declared that the detainees were not people, strictly speaking, and as such were not subject to the protections afforded to people, therefore they had no access to justice.

“Justice is the first virtue of social institutions, as truth is of systems of thought.”
— John Rawls, A Theory of Justice

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Hermione’s Time Turner

The ancient Greeks had a different idea of justice, so perhaps we just need to break out our trusty time turner to see what Aristotle had to say about it.

Here Aristotle rather equates the notion of justice to that of equality, but that begs the question: what equality? as we understand that equality comes in a variety of colours, so I won’t belabour the point any further here.

Instead of asking about justice, why don’t we focus on the root of the word, just? This yields the following definition:

Just: (adj) based on or behaving according to what is morally right and fair

This brings us into the normative domain of morality, fairness, and reason, so it’s not much to work with—basically, we are in the realm of opinion defended by rhetoric.

For ‘all’ intents and purposes, we’ve got four forms of justice. We’ve been focused on the distributive type, but there are also procedural, restorative, and retributive varieties. In many cases, not just one form of justice is satisfying and so multiple varieties are deemed, well, just.

  • Distributive or economic justice is about fairness in how things are distributed, about getting a fair share.
  • Procedural justice is also about fairness, but it’s more about fair play, an even playing field.
  • Restorative justice is about compensating for an injustice, about restoring some perceived balance.
  • Retributive justice is about punishment—retribution.

A problem arises when we try to quantify and measure justice. Consider distributive justice: If two people work in a field and each cultivates 50% of the crop, are each entitled to 50% of the yield? If the cultivated land was the ‘property’ of some other landowner, what portion would s/he be entitled to? All of it? Some of it? None of it?

What about the court system? Procedural justice comes into play here. Should a wealthy person have access to better attorneys than a poor person? Is this just? The poor person may argue no, but the wealthy person may argue that s/he earned the ability to pay for a better lawyer, so s/he is entitled to this benefit.

Restorative justice sounds simple at the surface. If I steal a loaf of bread, wouldn’t returning the loaf (or, at least, a similar loaf) be restorative—no harm, no foul? Many people will argue that this is not good enough. Balance has not been restored.

This is where retributive justice comes into play. Retributive justice is a poorly veiled euphemism for vengeance. This is where Hammurabi‘s code (or Leviticus‘)  eye for an eye—but not Matthew‘s turn the other cheek rendition—comes in. Let’s not get into Nietzsche’s take on forgiveness as being unjust and part of slave morality.

Keep in mind that in Hammurabi’s code, as with Roman law, justice was relative: Given eyes, (Nº 196) ‘If a man put out the eye of a nobleman (amelu), his eye shall be put out’, yet (Nº 198) ‘If he puts out the eye of a freedman or breaks the bone of a freedman, he shall pay one gold mina’.

Through all of this, we are still left wondering: just what is justice besides some vague notion constructed solely to preserve the status quo.

Sources:

  1. http://legalhistorysources.com/LisbonRights/JusticeDefinitions.htm
  2. http://changingminds.org/explanations/trust/four_justice.htm

Geuss Who?

A mate in an online forum turned me onto Raymond Geuss, who’s got just the perspective I’ve been looking for. I’ve felt that the concepts of rights and justice are weak on etymological grounds, but Geuss’ critique is even more fundamental. In his Philosophy and Real Politics, Geuss undercuts the positions of both Nozick and Rawls. I’ve never been a fan of Nozick, but I do consider (have considered) myself to be a bit of a Rawlsian.

Nozick is a key figure underneath Libertarianism, as this movement is very centred on rights. Opting for rights as his starting place as his preface to Anarchy, State, and Utopia:

Individuals have rights, and there are things no person or group may do to them (without violating their rights).” — Robert Nozick

As Geuss points out, Nozick ‘allows that bald statement to lie flapping and gasping for breath like a large, moribund fish on the deck of a trawler, with no further analysis or discussion, and proceeds to draw consequences from it’. In other words, Nozick leads with an unsubstantiated claim that ‘individuals have rights’, and then ‘advances’ his position tautologically.

As for Rawls, justice is his centrepiece. In his A Theory of Justice, the opening line is “Justice is the first virtue of social institutions, as truth is of systems of thought”. He merely starts from this emotional place and advances his theory based on this basis of justice, yet nowhere does he explain of defend why this should be the foundation. As with Nozick, Rawls simply conjures this out of thin air.

Justice is the first virtue of social institutions, as truth is of systems of thought.” — John Rawls

On top of this, Geuss comments on the shaky etymologic foundation of both justice and rights. Harkening back to the Latin origin of justice,

As Geuss writes, ‘To begin with the question of the concept of “justice,” it is striking how unclear this concept is in ordinary language and to what extent conceptions of justice differ from one context to another and in different human societies at different times. Thus at the beginning of one of the standard treatises of Roman law, the codification made for the emperor Justinian — one of the most influential texts in European history — we find that the very first sentence gives us a definition of “justice”: “iustitia est constans et perpetua voluntas ius suum cuique tribuens.” That is, justice is “the constant and unflagging will to give each person what is due to him.”

What have the Romans ever done for us?” – Monty Python

Then he goes on to clarify that “what is due to him” is radically different dependant on being a citizen, an alien, a slave, a woman, a minor, and so on. To simplify this, we are stuck in a tautological loop: one is due what one is due, as determined somewhat exogenously.

Rights don’t fare any better, being even more ambiguous, so I don’t feel so bad about pursuing the irrelevance of these virtue concepts on etymological grounds.

Post-Post-Modern Subjectivism

I’ve just finished reading Steven Pinker‘s The Blank Slate. Originally published in 2002 (and re-published with an afterword in 2016), it still feels fresh. Pinker offers compelling rationale for accepting that humans are not blank slates entering the world.

Though I am somewhat of a social justice warrior in principle, I am still a moral subjectivist, a post-modern thinker. Pinker shares his strong feelings against subjectivism, but he provides no evidence of the moral objectivism he advances, relying instead on an emotional appeal; in fact, he employs the same defensive tactic his detractors employ, which is to try to make an empathic connection to the reader.

All he does is to claim that there is an objective morality because everybody feels and knows that X is better than Y, taking a strawman approach. It’s not that I disagree with his Xs and Ys; it’s just that they are subjective not objective measures. He tries to slip in an appeal to popularity by claiming that everybody would (or should) feel this way when push comes to shove.

Nietzsche, I think, had it right in Beyond Good and Evil when he pointed out the dual moral systems of masters and slaves. Although a moral (just) system might be best constructed from scratch in the manner of Rawlsveil of ignorance, we are not starting from a blank slate. The power structures are already in place. There is a possibility for upward and downward mobility, but large jumps are not likely except in the manner of a lottery. Other than this, it’s unlikely that one will move from one quintile to another and even less likely to skip a quintile, especially on the upward trend.

In any case, the issue is not whether some might feel subjectively better; it’s whether—across all possible dimensions—a relative, stable equilibrium can be found. Even here, this is not objective, even if it’s not otherwise arbitrary or capricious. The larger problem is one of epistemological empiricism—apart from the ontological question—, whether we can know that we’ve found the objective truth or if we’ve just settled on something that works for our current station.

As much as I really do like Steven Pinker, and I await his next book, Enlightenment Now, I do so only to read how he couches his argument in support of Enlightenment and Humanism, two concepts I feel are tainted by hubris

Workmanship Ideal or Convenience?

One of the biggest issues I have with modern, Western political theory is Locke‘s so-called ‘workmanship ideal‘, a concept stemming from the Enlightenment belief that a maker of something should be the rightful owner of something. The Age of Enlightenment (AKA Age of Reason) was supposed to have divorced science from other rationale, whether divine rights (as ascribed to kings) or something else. The problem—the same problem Descartes had in his Discourses—is that God (even if vis-a-vis ‘nature‘) is injected exogenously and irrationally into the works. Philosophers even into the 21st century, if barely, have concluded that this concept breaks down when we attempt to secularise it, but we are subjectively comfortable with the notion. Of course, the more our beliefs lean towards ‘higher powers‘, intelligent design and the such, the more comfortable we are apt to feel.

I was originally inspired to write this when researching Rawls and happening upon Ian Shapiro‘s Yale open course, The Moral Foundations of Politics. James Murphy has this to say in his essay, The Workmanship Ideal : A Theologico-Political Chimera?