THE MEANING OF JUSTICE

The wordsmiths at Merriam-Webster recently declared “justice” the word of the year.  This difficult to define concept, arguably one of the foundations of our constitutional republic, saw a 74% increase in lookups in 2018 over the previous year.  No doubt the public’s interest in “obstruction of Justice” and “Justice Brett Kavanaugh” had something to do with the increase. But whatever the cause of additional focus, justice deserves a more in depth analysis than most Americans are willing to give it.

The origins of justice can be traced to a Gallicized version of the Latin word “iustitia” meaning fairness or equity. Over time the Roman goddess of Justice, portrayed as a woman holding scales in one hand and a sword in the other was adopted as an important symbol.  In the 16^th century, Lady Justice began wearing a blindfold to represent impartiality. The English common law turned justice into the watchword for a new type of court process, later faithfully imported into the American legal system. 

Justice is now used to impart a variety of meanings including equity, objectivity, honesty, morality and a judge of the supreme court.  For those willing to get down in the weeds and consider political philosophy, there are much deeper meanings.

  Understanding the manner in which justice has evolved from Plato and Aristotle through Immanuel Kant to John Rawls gives us a way to understand the deep political conflicts that divide our citizens into unrelenting tribes. It also explains why conservative and liberal judges have such different views on interpreting the law and in deciding what is just.

In a nutshell, the Hellenistic ancients believed that a just society should seek to promote the virtue of its citizens.  This would include passing laws that reflect the most desirable way for people to live.  On the other hand, more modern political philosophers have placed the emphasis on each person’s freedom to choose his or her subjective concept of how to live. Other recent philosophers have focused on the common good or on inequality. These conflicts of virtue versus freedom versus inequality have always been at the heart of the justice debate and remain with us today.

To investigate all of the philosophical nuances of justice is a long and complicated undertaking. Thankfully we have the excellent book by Michael J. Sandel: Justice, What’s The Right Thing To Do?, to help us along.  Professor Sandel teaches the most popular and discussed course at Harvard University, on understanding Justice.  His book is the summary of his scholarship for the rest of us.

Sandel starts with Utilitarianism: the principle of the most good for the most people.  This type of justice maximizes pleasure for the majority no matter how much pain for the minority.  Because we cannot all agree on what is good, utilitarianism and individual freedom are always in conflict.  Should we ban tobacco smoking?  How about soft drinks that lead to obesity?

Second, is Libertarianism: the idea that individual freedom trumps other factors.  Individuals can choose to harm themselves as long as others are not affected. No one should be deprived of individual liberty to help others. This includes taxing the well off to help the poor.  The government does not get the right to decide what is best for the individual.

The problem with formulating a system of justice based on libertarian thought is that we live in a society, not on individual islands.  For example, while it may seem logical to let each person determine their own healthcare, when the individual without insurance gets sick, we all pay for it. To many of us, leaving the social safety net to chance, with no safeguards, seems like cruel punishment to the disadvantaged.

Next, Professor Sandel considers the teachings of Immanuel Kant, which turned libertarian thought on its head.  Kant wrote that justice is a moral precept where it is rational for everyone to act in a way that harms no one. If individual actions cannot be scaled up to be good for everyone, without bad consequences for anyone, the actions are not moral and therefore not just. Conveniently, Kant never explained what his rules of morality should be.  Many consider his concept of justice difficult to follow in the real world.

Fourth, Sandel focuses on John Rawls, often credited with being the most important political philosopher of the 20^th century. The basis of his theory of justice is reason devoid of self-interest. He asks each of us to image a just society where there are no identity politics and where we have no subjective idea of where each of us would fit in, in terms of wealth or social structure.  His conclusion is that as rational beings we would all choose a society where those who have impediments in achieving social or economic standing would be well taken care of and inequality would be frowned upon.

The only inequality permitted in Rawls’ system would be if it were necessary to make all people better off.  For example, it might be required to pay certain professionals more money in medicine and other fields to maintain quality for the greater good.  As a contrast, libertarians believe that “value creators” deserve to keep all the value they create.  Rawls theorized that the entrepreneurs and professionals among us should only get enough “value” to be willing to do what they do.

Of course the Rawls model of justice is the kind of social liberal democratic model, now in vogue in Scandinavia and under severe attack by many illiberal, populist governments. While the western world appeared to accept the Rawls premise after the end of WWII and again after the defeat of Soviet communism, we are moving away from this justice concept that maximizes equality, with basic rights guaranteed for everyone, including minorities.

The last justice concept introduced by Professor Sandel is the virtue ethics of Aristotle. Here, a well-run society is one that encourages virtue, both by rewarding it and by building it through just laws and in the education of young people.  Aristotle disagreed with Kant that a society could develop rules for all people in all situations.  Instead, “the right thing to do” changes with the circumstances. Good people make good societies where good decisions are made, based on virtue. 

Consider four individuals arrested for theft.  The first stole solely to feed his family; the second was a young immature teenager following peer pressure; the third was an addict; the fourth a professional thief. Aristotelian virtue would not apply one hard and fast law to all four cases, but rather consider the right thing to do in each situation.  With Aristotle, “practical wisdom” goes a long way in forming a just society.

These diverse approaches to justice all ask the same question, how do we distribute the things we value in the right way? Each idea, rational in some respects and questionable in others, comes up with a different answer. This debate is important because how we view justice determines how we approach problems as diverse as affirmative action, incarceration, climate change, economic recession and paying for higher education.

The best political philosophers throughout history have been unable to provide one answer acceptable to all citizens living in our democratic republic.  But to understand the underpinnings of the different theories we have regarding justice is to bring moral clarity to the choices that must be made.

When it comes to justice, perhaps the best we can hope for is that informed citizens will consider the validity of different solutions in building a just society.