Information about Justice

JUSTICE is a human rights and law reform organisation based in the United Kingdom. It is the British section of the International Commission of Jurists, the international human rights organisation of lawyers devoted to the legal protection of human rights worldwide. Consequently, members of JUSTICE are predominantly barristers and solicitors, judges, legal academics, and law students.

The current director of JUSTICE is Roger Smith and its current chairman is Lord Goodhart QC.

History

JUSTICE was founded in 1957, following the visit of a group of British lawyers to observe the treason trials of members of the ANC in apartheid South Africa and the show-trials in communist Hungary. Its first chairman was Hartley Shawcross, the chief British prosecutor at Nuremberg, and another of the founders was Peter Benenson who would later go on to found Amnesty International. Indeed, when Amnesty first started in 1961, it shared its offices with JUSTICE.

In 1958 it became the British section of the International Commission of Jurists ('ICJ'). The original terms of JUSTICE's constitution committed it `to uphold and strengthen the principles of the Rule of Law in the territories for which the British Parliament is directly or ultimately responsible: in particular, to assist in the administration of justice and in the preservation of the fundamental liberties of the individual'. Indeed, JUSTICE itself gave birth to a number of subordinate branches in what were then still British colonies and dependent territories. As each of these countries moved towards independence in the 1960s, the branches reconstituted themselves as national sections of the ICJ. This, in turn, shifted the emphasis of JUSTICE's own work towards the UK itself.

Thus, although founded with an international orientation, JUSTICE quickly established a specific focus on the rule of law and protection of fundamental rights in the UK. Through the work of its first secretary, Tom Sargant OBE, JUSTICE rapidly developed expertise in cases involving miscarriages of justice, and secured the release of many prisoners who had been wrongly imprisoned.

At the same time JUSTICE developed as a policy organisation, producing reports that helped establish the UK's Ombudsman system, the Criminal Injuries Compensation Board, the Rehabilitation of Offenders Act, the Data Protection Act, and the Criminal Cases Review Commission. Similarly, many of the measures contained in the Constitutional Reform Act 2005 were previously put forward by JUSTICE. Through the 1990s it established and developed programmes on human rights legislation, criminal justice, asylum and immigration, discrimination and privacy. It campaigned for the incorporation of the European Convention on Human Rights into UK law by way of the Human Rights Act 1998.

Anne Owers CBE, Her Majesty's Chief Inspector of Prisons, was previously the Director of JUSTICE until 2001.

Current work

The main areas of JUSTICE's work are:

• human rights
• criminal justice
• EU law
• the rule of law

JUSTICE's focus is on UK law but its work involves highlighting the importance of international human rights law as well as bringing to bear the insights of comparative analysis of other jurisdictions. European law plays an increasingly large role in this work. It works primarily by briefing parliamentarians and policy-makers on the human rights implications of legislation. As a policy organisation it is less involved in overt campaigning and individual casework and more on providing independent, expert legal analysis on matters of fundamental rights. It also works at the European and international levels, lobbying the European Union institutions, the Council of Europe and the various UN treaty bodies.

Each of JUSTICE's areas of work in turn covers a broad range of issues, including asylum and immigration, counter-terrorism, equality and discrimination, privacy, EU Freedom Justice and Security issues, legal aid and access to justice, as well as constitutional issues tied to the role of the judiciary and Parliamentary scrutiny of legislation.

JUSTICE also has a long history of intervening in cases of public importance involving the protection of fundamental rights. To this end, it has intervened before in cases before the Court of Appeal and the House of Lords, the Privy Council, the European Court of Human Rights, and the European Court of Justice.

External links

• JUSTICE
• International Commission of Jurists

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Ethics

Theoretical

Meta-ethics Normative Descriptive Consequentialism Deontology Virtue ethics Ethics of care Good and evil Morality

Applied

Bioethics Medical Engineering Environmental Human rights Animal rights Legal Media Business Marketing Religion War

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Aristotle Confucius Aquinas Hume Kant Bentham Mill Kierkegaard Nietzsche Hare Rawls MacIntyre Singer Gilligan

Lists

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Justice concerns the proper ordering of things and persons within a society. As a concept it has been subject to philosophical, legal, and theological reflection and debate throughout history.

Discussions of justice can be divided into two broad fields. Distributive justice is concerned with the proper distribution of good things - wealth, power, reward, respect - between different people. So, for instance, egalitarianism is a theory of distributive justice which says that the proper distribution of wealth (and perhaps other goods) is an equal distribution: no-one in the relevant group should have more or less than anyone else in that group. Retributive justice is concerned with the proper response to wrongdoing. So, for instance, the lex talionis (law of retaliation) is a theory of retributive justice which says that the proper punishment is equal to the wrong suffered: "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, wound for wound, stripe for stripe."^[1]

A number of important questions surrounding justice have been fiercely debated over the course of western history: What is justice? What does it demand of individuals and societies? What is the proper distribution of wealth and resources in society: equal, meritocratic, according to status, or some other arrangement?^[2] There is a myriad of possible answers to these questions from divergent perspectives on the political and philosophical spectrum.

Some theorists, such as the classical Greeks, conceive of justice as a virtue—a property of people, and only derivatively of their actions and the institutions they create. Others emphasize actions or institutions, and only derivatively of the people who bring them about. The source of justice has variously been attributed to harmony, divine command, natural law, or human creation. It may be considered subordinate to a different ethical value.

Virtue or results?

Between a just (or unjust) punishment and the just (or unjust) judge who imposes it, which of these senses is more fundamental? Justice has been thought, primarily, the morally right assignment of good and bad things (including wealth, power, reward, respect and punishment); alternatively, it has been thought the virtue of a person who expresses or acts for that right assignment. Either actions are just because a just person does them, or a person is just because they do just things. The twentieth-century moral philosopher Elizabeth Anscombe influentially argued that modern philosophy had gone wrong in focusing on actions and their results over the character of actors, and so inspired modern virtue ethics, which follows Aristotle in considering justice as one of the virtues of a good person, and only indirectly as a property of a state of affairs.^[3]

Further information: Aretaic turn

Understandings of justice

It has already been noted that justice is distinguished from other ethical standards as required and as overwhelmingly important: Justice can be thought of as distinct from, and more important than, benevolence, charity, mercy, generosity or compassion. All of these things may be valuable, but they are supererogatory rather than required. We need to know more than this: we need to know what justice is, not merely what it is not, and several answers to that problem have been proposed.

Justice is linked, both etymologically and conceptually, to the idea of justification: having and giving decisive reasons for one’s beliefs and actions. So, attempts to understand justice are typically attempts to discover the justification – the source or basis – of justice, and therefore to account for (or disprove) its overwhelming importance.

Justice as harmony

Main article: Republic (dialogue)

In his dialogue Republic, Plato uses the character of Socrates to argue for a single account of justice which covers both the just person and the just city-state. Justice is a proper, harmonious relationship between the warring parts of the person or city. A person’s soul has three parts – reason, spirit and desire – and the just person is the one in whom reason commands the other two and each keeps to its task. Similarly, a city has three parts – lovers of wisdom, soldiers and workers – and the just city is the one in which the lovers of wisdom rule the other two, and in which everyone sticks to his or her own, appropriate tasks. Socrates uses the parable of the chariot to illustrate his point: a chariot works as a whole because the two horses’ power is directed by the charioteer. Lovers of wisdom – philosophers, in one sense of the term – should rule because only they understand what is good. If one is ill, one goes to a doctor rather than a quack, because the doctor is expert in the subject of health. Similarly, one should trust one’s city to an expert in the subject of the good, not to a mere politician who tries to gain power by giving people what they want, rather than what’s good for them. Socrates uses the parable of the ship to illustrate this point: the unjust city is like a ship in open ocean, crewed by a powerful but drunken captain (the common people), a group of untrustworthy advisor's who try to manipulate the captain into giving them power over the ship’s course (the politicians), and a navigator (the philosopher) who is the only one who knows how to get the ship to port. For Socrates, the only way the ship will reach its destination – the good – is if the navigator takes charge.^[4]

Justice as divine command

Main article: Divine command theory

Advocates of divine command theory argue that justice, and indeed the whole of morality, is the authoritative command of a deity or deities, for instance, the Christian God. Murder is wrong and must be punished, for instance, because, and only because, God commands that it be so. A common response to Divine Command Theory is the Euthyphro dilemma, which asks: is what is right right because it is commanded by God, or does God command what is in fact morally right? If the former, then justice is arbitrary; if the latter, then morality exists on a higher order than God, who becomes little more than a passer-on of moral knowledge. Divine command advocates have the option of responding by pointing out that the dilemma is false: goodness is the very nature of God and is necessarily expressed in his commands.

Justice as natural law

Main article: Natural law

For advocates of the theory that justice is part of natural law, it involves the system of consequences which naturally derives from any action or choice. In this, it is similar to the laws of physics: in the same way as the Third of Newton's laws of Motion requires that for every action there must be an equal and opposite reaction, justice requires according individuals or groups what they actually deserve, merit, or are entitled to. Justice, on this account, is a universal and absolute concept: laws, principles, religions, etc., are merely attempts to codify that concept, sometimes with results that entirely contradict the true nature of justice.

Justice as human creation

In contrast to the understandings canvassed so far, justice may be understood as a human creation, rather than a discovery of harmony, divine command, or natural law. This claim can be understood in a number of ways, with the fundamental division being between those who argue that justice is the creation of some humans, and those who argue that it is the creation of all humans.

Justice as authoritative command

According to thinkers including Thomas Hobbes, justice is created by public, enforceable, authoritative rules, and injustice is whatever those rules forbid, regardless of their relation to morality. Justice is created, not merely described or approximated, by the command of an absolute sovereign power. This position has some similarities with divine command theory (see above), with the difference that the state (or other authority) replaces God.

Justice as mutual agreement

Main article: Social contract

According to thinkers in the social contract tradition, justice is derived from the mutual agreement of everyone concerned; or, in many versions, from what they would agree to under hypothetical conditions including equality and absence of bias. This account is considered further below, under ‘Justice as fairness’.

Justice as less important than we think

According to utilitarian thinkers including John Stuart Mill, justice is not as fundamental as we often think. Rather, it is derived from the more basic standard of rightness, consequentialism: what is right is what has the best consequences (usually measured by the total or average welfare caused). So, the proper principles of justice are those which tend to have the best consequences. These rules may turn out to be familiar ones such as keeping contracts; but equally, they may not, depending on the facts about real consequences. Either way, what is important is those consequences, and justice is important, if at all, only as derived from that fundamental standard. Mill tries to explain our mistaken belief that justice is overwhelmingly important by arguing that it derives from two natural human tendencies: our desire to retaliate against those who hurt us, and our ability to put ourselves imaginatively in another’s place. So, when we see someone harmed, we project ourselves into her situation and feel a desire to retaliate on her behalf. If this process is the source of our feelings about justice, that ought to undermine our confidence in them.^[5]

Further information: Utilitarianism, Utilitarianism (book), John Stuart Mill

Eternal Justice

In Human, All Too Human, philosopher Friedrich Nietzsche dismantles the notion that 'the world' treats everyone fairly:

One common false conclusion is that because someone is truthful and upright toward us he is speaking the truth. Thus the child believes his parents` judgments, the Christian believes the claims of the church's founders. Likewise, people do not want to admit that all those things which men have defended with the sacrifice of their lives and happiness in earlier centuries were nothing but errors. Perhaps one calls them levels of truth. Basically, however, one thinks that if someone honestly believed in something and fought for his belief and died it would be too unfair if he had actually been inspired by a mere error. Such an occurrence seems to contradict eternal justice. Therefore the hearts of sensitive men always decree in opposition to their heads that there must be a necessary connection between moral actions and intellectual insights. Unfortunately, it is otherwise, for there is no eternal justice.

Justice as Economics

Justice as a concept has next to no meaning for those who do not have clean water, education, housing etc and are never to know the justice which comes from having some form of secure income. Thus the appeal of a cry for justice − essentially meaning a cry for economic justice − which has lain behind movements such as socialism.

However, the redistribution of wealth or income is not a justice in itself because it does not address the question of efficiently creating the wealth and income in the first place. It is the claim of binary economics that it does address both the efficient creation and the justice issues by being a market economics whose markets work for everybody rather than just a few; and which upholds private property but private property, again, for everybody rather than just a few. A summary might be – a justice which creates efficiency and an efficiency which creates justice..

Theories of distributive justice

Theories of distributive justice need to answer three questions:

1. What goods are to be distributed? Is it to be wealth, power, respect, some combination of these things?
2. Between what entities are they to be distributed? Humans, sentient beings, the members of a single society, nations?
3. What is the proper distribution? Equal, meritocratic, according to social status, according to need?

Distributive justice theorists generally do not answer questions of who has the right to enforce a particular favored distribution.

This section describes some widely-held theories of distributive justice, and their attempts to answer these questions.

Egalitarianism

Main article: Egalitarianism

According to the egalitarian, goods should be distributed equally. This basic view can be elaborated in many different ways, according to what goods are to be distributed – wealth, respect, opportunity – and what they are to be distributed equally between – individuals, families, nations, races, species. Commonly-held egalitarian positions include demands for equality of opportunity and for equality of outcome.

Giving people what they deserve

In one sense, all theories of distributive justice claim that everyone should get what he or she deserves. Where they diverge is in disagreeing about the basis of dessert. The main distinction is between, on one hand, theories which argue that the basis of just dessert is something held equally by everyone and therefore derive egalitarian accounts of distributive justice; and, on the other hand, theories which argue that the basis of just desert is unequally distributed on the basis of, for instance, hard work, and therefore derive accounts of distributive justice according to which some should have more than others. This section deals with some popular theories of the second type.

According to meritocratic theories, goods, especially wealth and social status, should be distributed to match individual merit, which is usually understood as some combination of talent and hard work. According to needs-based theories, goods, especially such basic goods as food, shelter and medical care, should be distributed to meet individuals’ basic needs for them. Marxism can be regarded as a needs-based theory on some readings of Marx’s slogan, ‘From each according to his ability, to each according to his needs’.^[6] According to contribution-based theories, goods should be distributed to match an individual's contribution to the overall social good.

Further information: Meritocracy, Need, From each according to his ability, to each according to his need

Fairness

Main article: A Theory of Justice

In his A Theory of Justice, John Rawls used a social contract argument to show that justice, and especially distributive justice, is a form of fairness: an impartial distribution of goods. Rawls asks us to imagine ourselves behind a veil of ignorance which denies us all knowledge of our personalities, social statuses, moral characters, wealth, talents and life plans, and then asks what theory of justice we would choose to govern our society when the veil is lifted, if we wanted to do the best that we could for ourselves. We don’t know who in particular we are, and therefore can’t bias the decision in our own favour. So, the decision-in-ignorance models fairness, because it excludes selfish bias. Rawls argues that each of us would reject the utilitarian theory of justice that we should maximize welfare (see below) because of the risk that we might turn out to be someone whose own good is sacrificed for greater benefits for others. Instead, we would endorse Rawls’s two principles of justice:

1. Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.

2. Social and economic inequalities are to be arranged so that they are both

:a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and

:b) attached to offices and positions open to all under conditions of fair equality of opportunity.^[7]

This imagined choice justifies these principles as the principles of justice for us, because we would agree to them in a fair decision procedure. Rawls’s theory distinguishes two kinds of goods – (1) liberties and (2) social and economic goods, i.e. wealth, income and power – and applies different distributions to them – equality between citizens for (1), equality unless inequality improves the position of the worst off for (2).

Having the right history

Robert Nozick’s influential critique of Rawls argues that distributive justice is not a matter of the whole distribution matching an ideal pattern, but of each individual entitlement having the right kind of history. It is just that a person has some good (especially, some property right) if and only if he or she came to have it by a history made up entirely of events of two kinds:

1. Just acquisition, especially by working on unowned things; and

2. Just transfer, that is free gift, sale or other agreement, but not theft.

If the chain of events leading up to the person having something meets this criterion, then he or she is entitled to it: it is just that he or she possesses it, and what anyone else has, or does not have, or needs, is irrelevant.

On the basis of this theory of distributive justice, Nozick argues that all attempts to redistribute goods according to an ideal pattern, without the consent of their owners, are theft. In particular, redistributive taxation is theft.

Further information: Anarchy, State, and Utopia, Economic libertarianism

Welfare-maximization

Main article: Utilitarianism

According to the utilitarian, justice requires the maximization of the total or average welfare across all relevant individuals. This may require sacrifice of some for the good of others, so long as everyone’s good is taken impartially into account. Utilitarianism, in general, argues that the standard of justification for actions, institutions, or the whole world, is impartial welfare consequentialism, and only indirectly, if at all, to do with rights, property, need, or any other non-utilitarian criterion. These other criteria might be indirectly important, to the extent that human welfare involves them. But even then, such demands as human rights would only be elements in the calculation of overall welfare, not uncrossable barriers to action.

Theories of retributive justice

Theories of retributive justice are concerned with punishment for wrongdoing, and need to answer three questions:

1. why punish?
2. who should be punished?
3. what punishment should they receive?

This section considers the two major accounts of retributive justice, and their answers to these questions. Utilitarian theories look forward to the future consequences of punishment, while retributive theories look back to particular acts of wrongdoing, and attempt to balance them with deserved punishment.

Utilitarianism

According to the utilitarian, as already noted, justice requires the maximization of the total or average welfare across all relevant individuals. Punishment is bad treatment of someone, and therefore can’t be good in itself, for the utilitarian. But punishment might be a necessary sacrifice which maximizes the overall good in the long term, in one or more of three ways:

1. Deterrence. The credible threat of punishment might lead people to make different choices; well-designed threats might lead people to make choices which maximize welfare.
2. Rehabilitation. Punishment might make bad people into better ones. For the utilitarian, all that ‘bad person’ can mean is ‘person who’s likely to cause bad things (like suffering) ’. So, utilitarianism could recommend punishment which changes someone such that he or she is less likely to cause bad things.
3. Security. Perhaps there are people who are irredeemable causers of bad things. If so, imprisoning them might maximize welfare by limiting their opportunities to cause harm.

So, the reason for punishment is the maximization of welfare, and punishment should be of whomever, and of whatever form and severity, are needed to meet that goal. Worryingly, this may sometimes justify punishing the innocent, or inflicting disproportionately severe punishments, when that will have the best consequences overall (perhaps executing a few suspected shoplifters live on television would be an effective deterrent to shoplifting, for instance). It also suggests that punishment might turn out never to be right, depending on the facts about what actual consequences it has.^[8]

Retributivism

Main article: Retributive justice

The retributivist will think the utilitarian's argument disastrously mistaken. If someone does something wrong, we must respond to it, and to him or her, as an individual, not as a part of a calculation of overall welfare. To do otherwise is to disrespect him or her as an individual human being. If the crime had victims, it is to disrespect them, too. Wrongdoing must be balanced or made good in some way, and so the criminal deserves to be punished. Retributivism emphasizes retribution – payback – rather than maximization of welfare. Like the theory of distributive justice as giving everyone what he or she deserves (see above), it links justice with desert. It says that all guilty people, and only guilty people, deserve appropriate punishment. This matches some strong intuitions about just punishment: that it should be proportional to the crime, and that it should be of only and all of the guilty. However, it is sometimes argued that retributivism is merely revenge in disguise.^[9]

Further information: Deontological ethics

Institutions

Main article: Law

In an imperfect world, institutions are required to instantiate ideals of justice, however imperfectly. These institutions may be justified by their approximate instantiation of justice, or they may be deeply unjust when compared with ideal standards — consider the institution of slavery. Justice is an ideal which the world fails to live up to, sometimes despite good intentions, sometimes disastrously. The question of institutive justice raises issues of legitimacy, procedure, codification and interpretation, which are considered by legal theorists and by philosophers of law.

Another definition of justice is an independent investigation of truth. In a court room lawyers, the judge and the jury are supposed to be independently investigating the truth of an alleged crime. In physics, a group of physicists examine data and theoretical concepts to consult on what might be the truth or reality of a phenomena.

See also

• Criminal justice
• Distributive justice
• Ethics
• Global justice
• Just war
• Justice (economics)
• Morality
• Restorative justice
• Retributive justice
• Social justice
• Teaching for social justice

References

Bibliography and further reading

• Brian Barry, Theories of Justice (Berkeley: University of California Press, 1989).
• Harry Brighouse, Justice (Cambridge: Polity Press, 2004).
• Anthony Duff & David Garland eds, A Reader on Punishment (Oxford: OUP, 1994).
• Colin Farrelly, An Introduction to Contemporary Political Theory (London: Sage, 2004).
• David Gauthier, Morals By Agreement (Oxford: Clarendon Press, 1986).
• Robert E. Goodin & Philip Pettit eds, Contemporary Political Philosophy: An anthology (2nd edition, Malden Mass.: Blackwell, 2006), Part III.
• Ted Honderich, Punishment: The supposed justifications (London: Hutchinson & Co., 1969).
• Will Kymlicka, Contemporary Political Philosophy: An introduction (2nd edition, Oxford: OUP, 2002).
• Nicola Lacey, State Punishment (London: Routledge, 1988).
• John Stuart Mill, Utilitarianism in On Liberty and Other Essays ed. John Gray (Oxford: OUP, 1991).
• Robert Nozick, Anarchy, State, and Utopia (Oxford: Blackwell, 1974).
• Plato, Republic trans. Robin Waterfield (Oxford: OUP, 1994).
• John Rawls, A Theory of Justice (revised edition, Oxford: OUP, 1999).
• David Schmidtz, Elements of Justice (New York: CUP, 2006).
• Peter Singer ed., A Companion to Ethics (Oxford: Blackwell, 1993), Part IV.
• C.L. Ten, Crime, Guilt, and Punishment: A philosophical introduction (Oxford: Clarendon Press, 1987).

External links

• Stanford Encyclopedia of Philosophy entries:
• Distributive justice, by Julian Lamont.
• Justice as a virtue, by Michael Slote.
• Punishment, by Hugo Adam Bedau.
• http://www.sterlingharwood.com www.sterlingharwood.com

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