Forms of Justice: Critical Perspectives on David Millers Political Philosophy

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But even where a procedure has been shaped by a concern that it should produce substantively just outcomes, it may still have special properties that make it intrinsically just. In that case, using a different procedure to produce the same result might be objectionable. Theories of justice can then be distinguished according to the relative weight they attach to procedures and substantive outcomes.

Some theories are purely procedural in form. Robert Nozick distinguished between historical theories of justice, end-state theories, and patterned theories in order to defend the first against the second and third Nozick An end-state theory defines justice in terms of some overall property of a distribution of resources, welfare, etc. A patterned theory looks at whether what each receives as part of a distribution matches some individual feature such as their desert or their need.

By contrast, an historical theory asks about the process by which the final outcome has arisen. For most philosophers, however, the justice of a procedure is to a large extent a function of the justice of the outcomes that it tends to produce when applied. For instance, the procedures that together make up a fair trial are justified on the grounds that for the most part they produce outcomes in which the guilty are punished and the innocent are acquitted. Yet even in these cases, we should be wary of assuming that the procedure itself has no independent value.

We can ask of a procedure whether it treats the people to whom it is applied justly, for example by giving them adequate opportunities to advance their claims, not requiring them to provide personal information that they find humiliating to reveal, and so forth. Justice takes a non-comparative form when we can determine what is due to a person merely by knowing relevant facts about that particular person: if John has already been promised the whole of the pie, then that is what he can rightfully claim for himself.

Some theories of justice seem to imply that justice is always a comparative notion — for example when it is said that justice consists in the absence of arbitrary inequality — whereas others imply that it is always non-comparative.


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But conceptually, at least, both forms seem admissible; indeed we can find cases in which it appears we have to choose between doing justice comparatively and doing it non-comparatively see Feinberg ; for a critical response, see Montague For example, we might have several candidates all of whom are roughly equally deserving of an academic honour, but the number of honours we are permitted to award is smaller than the number of candidates.

If we honour some but not others, we perpetrate a comparative injustice, but if to avoid doing so we honour no-one at all, then each is treated less well than they deserve, and so unjustly from a non-comparative perspective. Theories of justice can then be categorised according to whether they are comparative, non-comparative, or neither. Principles of equality — principles requiring the equal distribution of some kind of benefit — are plainly comparative in form, since what is due to each person is simply an equal share of the benefit in question rather than any fixed amount.

In the case of principles of desert, the position is less straightforward. In the case of both X and P , we can ask whether they are to be identified comparatively or non-comparatively. Turning to P , or what is often called the desert basis, this may be a feature of A that we can identify without reference to anyone else, or it may be a comparative feature, such as being the best student in a graduating class.

Such principles, however, need to be supplemented by other principles, not only to tell us what to do with the surplus assuming there is one once everyone has sufficient resources, but also to guide us in situations where there are too few resources to bring everyone up to the sufficiency threshold.

Should we, for example, maximise the number of people who achieve sufficiency, or minimise the aggregate shortfall suffered by those in the relevant group? Unless we are prepared to say that these are not matters of justice, a theory of justice that contains only the sufficiency principle and nothing else looks incomplete. Some theories of justice cannot readily be classified either as comparative or as non-comparative.

Under this principle, ideally just shares are calculated by determining what each person would receive under the set of social institutions whose economic effect is to raise the worst off person to the highest possible level. This is neither a fixed amount, nor one that depends in any direct sense on what other individuals are receiving, or should receive. Applying the difference principle does require making comparisons, but these are comparisons between the effects of different social institutions — say different tax laws, or different ways of defining property rights — not between individual people and the amounts of benefit they are receiving.

When we raise questions about the scope of justice, we are asking about when principles of justice take effect and among whom. We have already, when discussing Hume, encountered the idea that there might be circumstances in which justice becomes irrelevant — circumstances in which resources are so abundant that it is pointless to allocate individual shares, or, as Hume also believed, in which resources are so scarce that everyone is permitted to grab what he can in the name of self-preservation.

But even in circumstances that are less extreme than these, questions about scope arise. Who can make claims of justice, and who might have the corresponding obligation to meet them? Does this depend on the kind of thing that is being claimed? If comparative principles are being applied, who should be counted as part of the comparison group?

Do some principles of justice have universal scope — they apply whenever agent A acts towards recipient B , regardless of the relationship between them — while others are contextual in character, applying only within social or political relationships of a certain kind? The present section examines some of these questions in greater detail. What does a creature have to do, or be like, to be included within the scope of at least some principles of justice?

How could this claim be justified? We can focus our attention either on individual features that humans possess and animals lack, and that might be thought relevant to their inclusion within the scope of justice, or on asymmetries in the relationship between humans and other animals. Critics of this view have pointed to cases of human-animal co-operation Donaldson and Kymlicka , Valentini ; however these arguments focus mainly or entirely on the special case of dogs , and it seems implausible to generalise from them in an attempt to show that human-animal relationships generally have a co-operative character.

But the claim that justice only applies to participants in co-operative practices is anyway vulnerable to the objection that it risks excluding seriously disabled people, people living in isolated communities, and future generations from the scope of justice, so it does not seem compelling as a claim about justice in general see further below. Might there be other reasons why animals cannot make claims of justice on us? Another Rawls-inspired suggestion is that animals lack the necessary moral powers, in particular the capacity to act on principles of justice themselves.

They cannot distinguish what is justly owed to them from what is not; and they cannot determine what they owe to others — whether to humans or to other non-human animals — as a matter of justice. This suggestion interprets justice as involving a kind of reciprocity: an agent to whom justice is due must also in principle be an agent who could dispense justice to others, by virtue of having the relevant capacity, even if for physical reasons — such as suffering from severe disability — they cannot do so in practice.

If this suggestion is rejected, and we allow that some animals, at least, should be included within the scope of justice, we can then ask about the form that justice should take in their cases. Using the distinction drawn in 2. For example, we might attribute rights to the animals over whom we exercise power — rights against cruel treatment, and rights to food and shelter, for instance.

This would involve using a sufficiency principle to determine what animals are owed as a matter of justice. It is much less plausible to think that comparative principles might apply, such that giving special treats to one cat but not another could count as an injustice. The Rawlsian view introduced in the previous section, which holds that principles of social justice apply among people who are engaged together in a co-operative practice, is a leading example of a relational theory of justice.

Other theories offer different accounts of the relevant justice-generating feature: for example, Nagel has argued that principles of distributive justice apply among people who by virtue of being citizens of the same state are required both to comply with, and accept responsibility for, the coercive laws that govern their lives Nagel In both cases, the claim being made is that when people stand in a certain relationship to one another, they become subject to principles of justice whose scope is limited to those within the relationship.

In particular, comparative principles apply within the relationship, but not beyond it. If A stands in a relationship of the right kind to B , then it becomes a matter of justice how A is treated relative to B , but it does not matter in the same way how A is treated relative to C who stands outside of the relationship. Justice may still require that C be given treatment of a certain kind, but that will be justice in its non-comparative guise. Whether justice is relational in either of the ways that Rawls and Nagel suggest has large implications for its scope.

In particular it bears on the question whether there is such a thing as global distributive justice, or, in contrast, whether distributive principles only apply to people who are related together as members of the same society or citizens of the same state. What reason can be given for thinking that it does? Suppose we have two people A and B , of whom one is significantly better off than another — has greater opportunities or a higher income, say. Why should this be a concern of justice? It seems it will not be a concern unless it can be shown that the inequality between A and B can be attributed to the behaviour of some agent, individual or collective, whose actions or omissions have resulted in A being better off than B — in which case we can ask whether the inequality between them is justifiable, say on grounds of their respective deserts.

This reiterates the claim in 1. Relational theorists claim that when people associate with one another in the relevant way, they become agents of justice. On a small scale they can organize informally to ensure that each receives what is due to him relative to the rest. On a larger scale, distributive justice requires the creation of legal and other institutions to achieve that outcome.

Moreover failure to co-ordinate their actions in this way is likely to be a source of injustice by omission. Debates about the scope of justice then become debates about whether different forms of human association are of the right kind to create agency in the relevant sense. Take the question of whether principles of social justice should apply to market transactions. If we see the market as a neutral arena in which many individual people freely pursue their own purposes, then the answer will be No. The only form of justice that arises will be justice in the conduct of each agent, who must avoid inflicting harm on others, must fulfil her contracts, and so forth.

Whereas if we see the market as governed by a humanly-constructed system of rules that the participants collectively have the power to change — by legislation, for example — then we cannot avoid asking whether the outcomes it currently produces meet relevant standards of distributive justice, whatever we take these to be. A similar issue arises in the debate about over principles of global justice referred to above: is the current world order such that it makes sense to regard humanity as a whole as a collective agent responsible for the distributive outcomes it allows to occur?

Once institutions are established for the purpose among other things of delivering justice on a large scale, we can ask what duties of justice individual people have in consequence. Is their duty simply to support the institutions, and comply with whatever rules of conduct apply to them personally?

Or do they have further duties to promote justice by acting directly on the relevant principles in their daily lives? Others fall on them because they are performing a role within a social institution, for example the duty of an employer not to discriminate on grounds of race or gender when hiring workers, or the duty of a local government officer to assign public housing to those in greatest need.

But what is much more in dispute is whether individual people have more extensive duties to promote social justice for contrasting views, see Cohen , ch. Consider two cases: the first concerns parents who confer advantages on their children in ways that undermine fair equality of opportunity. Are parents therefore constrained as a matter of justice to avoid conferring at least some of these advantages, or are they free to benefit their children as they choose, leaving the pursuit of equal opportunities entirely in the hands of the state for a careful analysis, see Brighouse and Swift ?

The second example concerns wage differentials. Might individuals whose talents can bring them high rewards in the labour market have a duty not to make use of their bargaining power, but instead be willing to work for a fair wage — which if fairness is understood in egalitarian terms might mean the same wage as everyone else perhaps with extra compensation for those whose labour is unusually burdensome?

Rawls, as we saw above, argued that economic justice meant arranging social and economic inequalities to the greatest benefit of the least advantaged, and in formulating the principle in this way he assumed that some inequalities might serve as incentives to greater production that would also raise the position of the worst-off group in society.

But if individuals were willing to forego incentives, and so economic inequalities served no useful purpose, then the arrangement that worked to the greatest benefit of the otherwise least advantaged would be one of strict equality. As citizens designing our institutions we are supposed to be guided by the difference principle, but as private actors in the marketplace, we are permitted to ignore that principle and bargain for higher wages, even though doing so will work to the disadvantage of the worst-off group. Justice, according to Cohen, requires us to embrace an ethos of service that disdains material incentives.

Why might we hesitate before agreeing that in cases such as these, justice requires people to refrain from doing things that they are permitted to do by the public rules of their society passing on benefits to their children; seeking higher wages?

Principles of Social Justice — David Miller | Harvard University Press

One reason is that the refraining is only going to have a significant effect if it is practised on a large scale, and individuals have no assurance that others will follow their example; meanwhile they or their children will lose out relative to the less scrupulous. A connected reason has to do with publicity: it may be hard to detect whether people are following the required ethos or not see Williams Is the person who sends her child to a private school because she claims he has special needs that the local state school cannot meet being sincere, or is she just trying to buy him comparative advantage?

How can we tell whether the person who claims more money, but merely, he says, as compensation for the unusual stress that his work involves, is reporting honestly? Attending to the scope , as well as the content , of justice is important.

1. Justice: Mapping the Concept

Can justice be understood in utilitarian terms? This may in the first place depend on how we interpret utilitarianism. We treat it here as a normative theory whose aim is to supply a criterion — the greatest happiness principle — that can be used, directly or indirectly, both by individuals and by institutions such as states in deciding what to do, rather than simply as a tool for evaluating states of affairs.

Utilitarianism cannot plausibly provide a theory of justice unless it is interpreted in this action-guiding way, in light of what was said above about justice and agency. We also assume that the most likely candidate will be a rule-utilitarian view that treats principles of justice as belonging to the set of rules which when followed by the relevant agents will tend to produce the greatest total utility for different ways of formulating this view, see the entry on rule consequentialism. Most utilitarians have regarded it as part of their task in defending utilitarianism to show that it can both accommodate and explain much of what we intuitively believe about justice.

This is certainly true of two of the greatest among them, John Stuart Mill and Sidgwick, both of whom went to considerable lengths to show that familiar principles of justice could be given a utilitarian rationale Mill Utilitarianism , ch. If we follow the lead of Mill and Sidgwick in wishing to take seriously how justice is commonly understood, the utilitarian has two challenges to face. First he or she must show that the demands of justice as commonly understood correspond roughly to the rules that when followed by persons, or implemented by institutions, are most conducive to the greatest happiness.

They need not mirror the latter exactly, because utilitarians will argue, as both Mill and Sidgwick did, that our intuitions about justice are often ambiguous or internally inconsistent, but there must be enough overlap to warrant the claim that what the utilitarian theory can accommodate and explain is indeed justice. Second, some explanation must be given for the distinctiveness of justice. Why do we have a concept that is used to mark off a particular set of requirements and claims if the normative basis for these requirements and claims is nothing other than general utility?

Principles of Social Justice

What accounts for our intuitive sense of justice? The task confronting the utilitarian, then, is to systematize our understanding of justice without obliterating it. By way of illustration, both Mill and Sidgwick recognize that desert , of both reward and punishment, is a key component of common understandings of justice, but they argue that if we remain at the level of common sense when we try to analyse it, we run into irresolvable contradictions.

Similar reasoning applies to the principles of punishment: the rules we should follow are the rules that are most conducive to the ends for which punishment is instituted, such as deterring crime. To explain the distinctiveness of justice, Mill suggests that it designates moral requirements that, because of their very great importance to human well-being, people have a right to have discharged, and are therefore matters of perfect obligation.

A person who commits an injustice is always liable to punishment of some kind, he argues. So he explains our sense of justice in terms of the resentment we feel towards someone who breaches these requirements. Sidgwick, who laid greater stress than Mill on the connection between justice and law, also underlined the relationship between justice and gratitude, on one side, and resentment, on the other, in order to capture the way in which our concern for justice seems to differ from our concern for utility in general.


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Yet despite these efforts to reconcile justice and utility, three serious obstacles still remain. The first concerns what we might call the currency of justice: justice has to do with the way that tangible benefits and burdens are assigned, and not with the happiness or unhappiness that the assignees experience.

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It is a matter of justice, for example, that people should be paid the right amount for the jobs that they do, but, special circumstances aside, it is no concern of justice that John derives more satisfaction from his fairly-earned income than Jane does from hers but see Cohen for a different view. There is so to speak, a division of labour, under which rights, opportunities, and material benefits of various kinds are allocated by principles of justice, while the conversion of these into units of utility or disutility is the responsibility of each individual recipient see Dworkin , ch.

Utilitarians will therefore find it hard to explain what from their point of view seems to be the fetishistic concern of justice over how the means to happiness are distributed, rather than happiness itself. The second obstacle is that utilitarianism judges outcomes by totalling up utility levels, and has no independent concern for how that utility is distributed between persons.

Defenders of utilitarianism will argue that when the conduct-guiding rules are being formulated, attention will be paid to distributive questions. In particular, when resources are being distributed among people we know little about individually, there are good reasons to favour equality, since in most cases resources have diminishing marginal utility — the more of them you have, the less satisfaction you derive from additional instalments. Yet this is only a contingent matter. This seems repugnant to justice.

Rules are assessed strictly in the light of the consequences of adopting then, not in terms of their intrinsic properties. Of course, when agents follow rules, they are meant to do what the rule requires rather than to calculate consequences directly. Backward-looking reasons have to be transmuted into forward-looking reasons in order to count.

David Miller (political theorist)

But justice, although not always backward-looking in the sense explained, often is. What is due to a person is in many cases what they deserve for what they have done, or what they are entitled to by virtue of past transactions. So even if it were possible to construct a forward-looking rationale for having rules that closely tracked desert or entitlement as these are normally understood, the utilitarian still cannot capture the sense of justice — why it matters that people should get what is due to then — that informs our common-sense judgements.

Utilitarians might reply that their reconstruction preserves what is rationally defensible in common sense beliefs while what it discards are elements that cannot survive sustained critical reflection. The shortcomings of utilitarianism have prompted several recent philosophers to revive the old idea of the social contract as a better way of bringing coherence to our thinking about justice.

The idea here is not that people actually have entered a contract to establish justice, or that they should proceed to do so, but that we can understand justice better by asking the question: what principles to govern their institutions, practices and personal behaviour would people choose to adopt if they all had to agree on them in advance? The contract, in other words, is hypothetical; but the search for agreement is meant to ensure that the principles chosen would, when implemented, not lead to outcomes that people could not accept.

Thus whereas a utilitarian might, under some circumstances, be prepared to support slavery — if the misery of the slaves were outweighed by the heightened pleasures of the slave-owners — contractarians claims that no-one could accept a principle permitting slavery, lest they themselves were destined to be slaves when the principle was applied. The problem that contractarians face is to show how such an agreement is possible. If we were to ask people, in the real world, what principles they would prefer to live under, they are likely to start from a position of quite radical disagreement, given their interests and their beliefs.

Some might even be willing to endorse slavery, if they were fairly certain that they would not end up as slaves themselves, or if they were sado-masochists who viewed the humiliations inflicted on slaves in a positive light. So in order to show how agreement could be achieved, contractarians have to model the contracting parties in a particular way, either by limiting what they are allowed to know about themselves or about the future, or by attributing to them certain motivations while excluding others.

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Since the modelling can be done differently, we have a family of contractarian theories of justice, three of whose most important members are the theories of Gauthier, Rawls and Scanlon. Gauthier presents the social contract as a bargain between rational individuals who can gain through co-operating with one another, but who are competing over the division of the resulting surplus.

He assumes that each is interested only in trying to maximise his own welfare, and he also assumes that there is a non-co-operative baseline from which the bargaining begins — so nobody would accept a solution that left her less well off than in the baseline condition. Each person can identify the outcome under which they fare best — their maximum gain — but they have no reason to expect others to accept that.

Gauthier argues that rational bargainers will converge on the principle of Minimax Relative Concession , which requires each to concede the same relative proportion of their maximum possible gain relative to the non-co-operative baseline. Thus suppose there is a feasible arrangement whereby each participant can achieve two-thirds of their maximum gain, but no arrangement under which they all do better than that, then this is the arrangement that the principle recommends.

Each person has made the same concession relative to the outcome that is best for them personally — not accepting the same absolute loss of welfare, let it be noted, but the same proportionate loss. Part III. But the larger question is whether a contract modelled in this way is an appropriate device for delivering principles of justice. This seems implausible: there may be prudential reasons to recommend a distribution that reflects the outcome that self-interested and rational bargainers would arrive at, but claims of justice need a different basis.

First, the shape of the theory has evolved from its first incarnation in Rawls through his major work A Theory of Justice Rawls and on to Rawls and Rawls His principles, which are discussed elsewhere see the entry on John Rawls , can be defended on their own merits as a theory of social justice for a modern liberal society, even if their contractual grounding proves to be unsound.

Rawls presents the contracting parties as seeking to advance their own interests as they decide which principles to favour, but under two informational constraints. This means that they have no basis on which to bargain for advantage, and have to consider themselves as generic persons who might be male or female, talented or untalented, and so forth. The problem for Rawls, however, is to show that the principles that would be selected in such an original position are in fact recognizable as principles of justice.

This, however, would bring the theory very close to utilitarianism, since the natural method of weighing primary goods is to ask how much utility having a given quantity of each is likely, on average, to bring for the claim that utilitarianism would be chosen in a Rawlsian original position, see Harsanyi Since Rawls wishes to reject utilitarianism, he has to adjust the psychology of the parties in the original position so that they reason differently. Thus he suggests that, at least in developed societies, people have special reason to prioritise liberty over the other goods and to ensure that it is equally distributed: he argues that this is essential to safeguard their self-respect.

When he turns to the distribution of income and wealth, Rawls has to show why his choosers would pick the difference principle, which considers only the position of the worst-off social group, over other principles such as maximising average income across the whole society. For example, they are said to be much more concerned to achieve the minimum level of income that the difference principle would guarantee them than to enjoy increases above that level.

In his later work, he abandons this reliance on maximin reasoning and gives greater prominence to another argument hinted at in Theory. This portrays the contracting parties as starting out from the presumption that income and wealth should be distributed equally, but then recognizing that all can benefit by permitting certain inequalities to arise.

When these inequalities are governed by the difference principle, they can be justified to everyone, including the worst off, thus creating the conditions for a more stable society. But we need then to ask why equal distribution should be treated as the benchmark, departures from which require special justification.

Although Rawls throughout presents his theory of justice as contractarian, we can now see that the terms of the contract are in part determined by prior normative principles that Rawls engineers the parties to follow. So in contrast to Gauthier, it is no longer simply a case of self-interested contractors negotiating their way to an agreement. Rawls candidly admits that the contractual situation has to be adjusted so that it yields results that match our pre-existing convictions about justice.

But then we may ask how much work the contractual apparatus is really doing see Barry , ch. Like Rawls, Scanlon is concerned to develop an alternative to utilitarianism, and he does so by developing a test that any candidate moral principle must pass: it must be such that no-one could reasonably reject it as the basis for informed, unforced general agreement see the entry on contractualism. They are able to see what effect adopting any proposed principle would have on them personally.

If that effect is unacceptable to them, they are permitted to reject it. Each person has, so to speak, a veto on any general principle for regulating conduct. Those that survive this test are defensible as principles of justice — Scanlon concedes that there might be alternative sets of such principles appropriate to different social conditions. It might seem, however, that giving each person a veto would lead straightforwardly to deadlock, since anyone might reject a principle under which he fared badly relative to some alternative. Here the idea of reasonable rejection becomes important.

It would not, Scanlon thinks, be reasonable to reject a principle under which one does badly if the alternatives all involve someone else faring worse still. Finally, it argues that social justice understood in this way remains a viable political ideal even in a world characterized by economic globalization and political multiculturalism. Accessibly written, and drawing upon the resources of both political philosophy and the social sciences, this book will appeal to readers with interest in public policy as well as to students of politics, philosophy, and sociology.

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