Justice theory
§ ‘justice according to the law’ – proper operation of a given system
§ ‘justice’- external standard is being advanced by reference to which the operation of a legal system may be evaluated.
§ Claims that a law is ‘unjust’ is doomed to fail if it is indeed a ‘law’. The claim of a system to be ‘just’ is ultimately a claim to comply with a standard of evaluation standing outside the forms of law as such.
§ Using the language of justice’ in formal legal language is an attempt to give legal proceedings the sense of an external standard of justice.
§ If it is accepted that even ‘justice according to law’ is a claim referring indirectly to an expectation of absolute justice there still remains a significant prob of def ‘justice’ is usually contrasted with ‘injustice’. Is the latter simply an absence of the former? Are both polar extremes with a large intermediate grey area.
PERSPECTIVES UPON JUSTICE THEORY
§ Relationship between law and justice major question ideas of external standard of justice imp.
§ Justice is ultimately a q of the relations of humans in society. Ideas of justice played imp role in the development of naturalistic legal theory- legal order held to conform to the criteria of evaluation advanced by the varieties of naturalistic theory was held to be ‘just’ in nature. This isn’t to say that naturalists argue that a just society can be attained through legal mechanisms alone. St Augustine of Hippo argued that positive law can never be more than a corrective for wrongdoing and that a just society can result only from a quite different and much higher order.
§ Justice, for naturalistic theorists, is a matter of equitable relations between people in society. Such ideas are implicit in Aristotle’s concept of human beings as social or political animals and was stated by Aquinas in his view that justice is concerned with maintenance of the common welfare in a society composed of interactive individuals. Same idea can be argued implicitly to underlie the general Social Contractian notion of social order which fundamentally concerns the jointures between individual claims and collective entitlements.
§ No single uniform concept of ‘justice’ in naturalistic thinking but there is an identifiable concerns with human relations in a social order and the need to balance their particular needs with the claims of the collective order in which they live. Therefore justice is concerned, in some way, with distribution. In modern world this is treated as a matter of distribution of wealth and whether this should be ‘rights’ or laissez-fairre’ based.
§ Clear that properly ordered society must involve some principles by which the relations of its members and with the society itself will be regulated.
§ Not just about distribution of material goods. Locke referred to the security of ‘property’ as a social goal, he included not only material goods but also entitlements which can be classified as HR. this shouldn’t be any less of a concern in the context of modern justice theories. We are then concerned with concepts of individual relations in a social order. This means that questions of distribution and distributive justice arise as well as whether distribution is a relevant criterion of ‘justice’.
§ JOHN RAWLS AND A LIBERAL DISTRIBUTIVE THEORY OF JUSTICE
§ In A Theory of Justice he sets out principles of justice which derive from a form of argument used by social contractors in C17th. Rawls’s starting point is an idea of ‘justice as fairness’. From this he developed an analysis of principles of justice including their priority of application and the nature of the considerations which feed into both their content and interpretation.
§ The original actors and the veil of ignorance
§ In order to consider principles which may be considered as objectively fair (not a rationalisation of particular wants) Rawls employs the device of ‘original actors’ placed behind a ‘veil of ignorance’. The basic principle is that the choice of just principles for social organisation is to be made by persons who don’t know what actual position they are to occupy in society, nor what their particular interests will be. They are, thus, precluded from shaping their principles by reference to personal advantage and can only proceed upon the basis of securing fairness for all, including themselves. The purpose of this is: ‘to set up a fair procedure so that any principles agreed will be just…we must nullify the effects of specific contingencies… ‘[tempting the original actors] to exploit social and natural circumstances to their own advantage… the parties are situated behind a veil of ignorance. They do not know the various alternatives will affect their own particular case and they are obliged to evaluate principles solely on the basis of general considerations.’
§ The specific deprivations of knowledge imposed by the ‘veil of ignorance’ are:
o Place in society
o Class or social status
o Natural assets or abilities such as intelligence or strength
o Personal conception of ‘good’
o Personal life plan
o Psychological inclination
o The economic or political situation of their society
o The level of civilisation and culture attained by their society
o The generation to which they belong
§ There are 2 broad types of knowledge which the actors will be deprived of. These are first knowledge of personal characteristics and secondly of the condition of the society for which a standard of justice is to be devised. Rawls, however, presents one list and since the unified intention is to screen out particular preferences this is fine.
§ Need to know something about the general psychology of the original actors even though they are denied knowledge of their individual psychology. Fair to ask that since these actors are to set up principles of justice for a society of which they have no particular knowledge it is fair to ask, for e.g., whether they are optimistic or pessimistic. They aren’t idealists, they are intended to at in a spirit of rational self-interest, and the nature of their expectations about the unknown society thus becomes imp.
§ The actors, being deprived of particular knowledge, cant assess the probabilities of their own position and are therefore argued by Rawls to work for the optimum opportunity for attainment of the most extensive goods, but also to maximize the minimum condition in which they might find themselves in the real society.
§ Rawls states that his principles of justice are: ‘those a person would choose for the design of a society in which his enemy is to assign his place.’
§ Actors may therefore be seen as hopeful pessimists. They seek the best but prepare for the worst in designing the principles of justice.
§ The psychology imposed by Rawls upon his original actors has been criticized (e.g. Wolff) particularly in relation to the suppositions about general human psychology which the original actors are made to make.
§ Wolff suggests in particular that Freud’s work is left our by Rawls. The prob appears to be that both the actors and their position are hypothetical constructs and neither are, nor are supposed to be, real. The whole structure of the veil of ignorance shielding the original actors is essentially a rhetorical device used to present the reasoning by which Rawl’s principles of justice are supported. It is ultimately the value of those principles which must be assessed rather than the mechanisms of what is an inherently impossible original position.
§ Distribution and the thin theory of good
§ The original actors are concerned to secure the optimum system of distribution of benefit for their own advantage. Although the hypothetical actors don’t have specific knowledge of their own position they necessarily have a conception of the good which underlies the distribution to be undertaken. Each person, upon emerging from the veil of ignorance, will have an individual conception of good in the shape of a rational life plan. Rawls argues that whatever this may be it will involve certain primary goods. These are taken to be rights and liberties, powers and opportunities, income and wealth, with self-respect. Rawls also says there will be ‘natural’ goods that accompany these ‘social’ goods. These are health, vigor, intelligence and imagination.