From all the possible topics one could start with in a course on philosophy of law, justice is one with the most long-lasting and deep-driven history of discussion in the field. Thinkers have been talking about justice since ever, which is at the same time an evidence of how important the subject really is for mankind and of how complex the questions it raises are, as well as how much controversy it brings with. That is why one has to draw some strict lines of approaching of the issue in order to make it possible to be talked about. Sometimes when the subject is too large and complex and the theories and arguments around its questions are too many and disputed, the only way to make the issue approachable is by limiting it according to the purposes one has in sight. And sometimes this limiting policy is inevitably too biased by the lecturer’s interests, believes and commitments. But it is still preferable to offer a very honestly biased, but useful course about the subject than to offer an allegedly neutral, but vague and confuse course about it.
So in this initial speech, I do not have to say what every course on justice should deal with, but rather what this course on justice will deal with. This course will introduce two different views on justice, namely the liberal-deontological and the liberal-consequentialist one, and will show how these two views work in three different legal fields, namely civil rights, contract law and criminal law. My main goal is not convincing the audience of the primacy of one of the views over the other one, but making very clear the differences that we obtain from applying one of them instead of the other one. Students are though certainly encouraged to take a position between them and to modulate their positions according to each field in question, but this is a secondary purpose of the course, and not its main one.
Two Views on Justice
In this course, I will present the audience two conceptions of justice which I will be insisting with during all the lectures. The first one, named the deontological conception of justice, or simply D, makes the following statements:
1) Every person is to be considered and treated as a free and equal member of a community.
2) Relations between persons are to be consistent with the freedom and equality of each one.
3) Relations consistent with the freedom and equality of each person are just.
This view, D, is committed to the notions of autonomy and dignity of persons and has what I like to call “a moral accent”. As opposed to this view, I will present a second one, named the consequentialist conception of justice, or simply C, which instead states the following:
1) Every person is to be considered and treated as an individual in pursuit of her happiness.
2) That which helps a person to reach her happiness is good; that which prevents it is bad.
3) That which is good for most of the persons at the same time is just.
This other view, C, is committed to the notions of happiness and utility, and has what I like to call “a political accent”. There are many differences in both of the views and still more repercussions of taking one or another in practical decisions and actions. But for now it is enough to perceive that none of them is at first sight implausible or unacceptable. They are instead very good formulations of our everyday intuitions about justice and both of them have a long and respectable history in the debate on justice. Actually this course will not have the expected effect on the audience both if the students think that none of the views is good and if they consider only one of them worthy to think about. It is essential to this course the understanding of both D and C as valuable views of the issue.
Explaining D better
The deontological conception of justice, or simply D, is deeply connected with the notion of duty not only because of its name – “deontos” is a Greek word for “duty” – but also because it conceives of justice as something society owes to every person for her condition of a free and equal member of it. Justice is a kind of duty that society has to take in account and cannot violate in its putting ends and its getting reach of them. So D reminds society that it cannot treat its members as mere numbers or means to its ends, it has obligatorily to treat them as persons, that is, as free and equal beings. As a consequence of this approach to justice, a norm or institution is just not when it attends the demands and interests of the individuals, but when it respects, that is, it does not violate their equal freedom as persons. So it converts the problem of knowing if a norm or institution attends the demands and interests of the individuals in a political question, exterior and prior to justice, and the problem of knowing if a norm or institution is just in a moral question, concerning only to the non violation of the equal freedom of each one. In order to understand D more clearly, one has to grasp each of its statements very carefully.
The first statement of D (from now on, D1) says how every person should be considered and treated as: Every person is to be considered and treated as a free and equal member of a community. It means that each person cannot be seen neither as a subject to a higher power she should for any reason submit to nor as any more or any less valuable of consideration and respect than any of her companions. D establishes the tension between freedom and equality, making them to limit each other: the freedom of some cannot be so large that compromises seriously the freedom of others, as well as equality cannot be so strict and overly controlled that compromises the freedom of each person.
Some consequences of that commitment are that the pure majority rule system (PMRS) is to be dismissed, as well as are libertarianism and socialism. These latter two may be seen as the exaggeration either of freedom (libertarianism) or of equality (socialism) that D explicitly wants to avoid. The former, the PMRS, cannot reconcile its absolute primacy of the majority will with the principle, central in D, of respect for each person’s equal freedom. If the majority will is to be always considered unlimited and legitimate, then persons whose will is not attended in the majority will shall be unheard and unprotected, which makes of them in some sense not only not free, but also less valuable than others. It does not mean that D cannot be put in agreement with democracy, but rather that a democracy, if it is to be consistent with D, cannot be conceived of as a PMRS. A democracy consistent with D would be one in which minorities are heard and protected against the majority will.
The second statement of D says: Relations between persons are to be consistent with the freedom and equality of each one (D2). Consistency with equal freedom is then put as a test of justice for social relations as general. A good example of how this test is supposed to be applied is the way we reason about the lack of justice in slavery and segregation. In slavery some persons are the owners of other ones, which cannot be consistent with the freedom of the latter. In segregation some persons are considered inferior to other ones, which cannot be consistent with the equality between all of them.
It is important to perceive that this lack of consistency with equal freedom makes slavery and segregation also morally wrong, so that one can rightly say that unjust and morally wrong are equivalent for D. The same cannot be said about the equivalence of just and morally right, at least not if “right” maintains its stronger sense of “mandatory”. In D, just means morally permissible, and not morally mandatory. Tributes and private properties can be proven to be morally permissible, and then just, but not necessarily morally mandatory, for equal freedom does not claim them to be, it simply permits them to be. It means that D provides a test of justice that has two different effects on the norms and institutions that fail and succeed in it: it is mandatory to the norms and institutions that fail in it (they are totally forbidden) and not mandatory to the norms and institutions that succeed in it (they are simply permitted, but not commanded). Justice is conceived as moral permissiveness.
The third and last statement of D says: Relations consistent with the freedom and equality of each person are just (D3). There is, then, more than one possible just norm and institution for each issue, that is, since justice is conceived as moral permissiveness, it opens a wide range of permissible movements for politics. Justice is for politics the final word about what cannot be made, but not about what can or should be made. It establishes the moral limits of politics in the pursuit of its ends, but it does not establishes the very ends politics is supposed to pursuit. That is the reason why D can limit democracy (preventing it to be, for example, a PMRS), but cannot dismiss democracy entirely, because it has to be some system (democracy being one of the possibilities) that connect norms and institutions to the demands and interests of the individuals, since justice itself cannot warrant that norms and institutions will attend the demands and interests of the individuals, but only that those norms and institutions, even while attempting to attend their demands and interests, will not violate their equal freedom.
Once hypothetically there are many choices consistent with equal freedom, politics, even limited by justice, has always a wide range of possibilities for political choice. But since none of them will be such that shall represent no burden at all either to freedom or to equality, no political choice could be “perfectly just”. A perfectly just choice would not restrict freedom or equality in any measure, and it is impossible for any political choice. If an improvement in the health care system requires a raise in the aliquot of the income tax, either the choice not to raise the taxes, limiting poor people access to health and, therefore, their freedom, or the choice to raise the taxes, limiting middle-class and rich people access to their incomes and, therefore, their freedom, would limit some persons’ freedom in some measure, and then would not be a perfectly just choice. So if one asks which of the choices would be the just one, D cannot just say that none of them is perfectly just, but has to have something to say about which of the limitations of freedom would be more consistent with equal freedom at the end of the day. That is a serious challenge for any variant of D.
Explaining C better
The second view, the consequentialist conception of justice, or simply C, is deeply connected to the notion of utility. Utility, as famously defined by Bentham, is the possibility to realize the biggest amount of happiness for the largest amount of people. Utility might be seen as a duty, as well as is respect for equal freedom in D, but not only a duty that society has with individuals (the duty to take choices that contribute to their happiness), but also as a duty that individuals have with one another (the duty to accept a sacrifice of the means of their own happiness when necessary to the increase of the means of others’ happiness). In this approach of justice, equal freedom is not a test of justice for norms, but it is itself a norm to be examined in that other test of justice, that is, utility, so that, even if it succeeds in it, it is never taken to be absolute in any sense or even more important than any other norm, not to mention than the very utility test. Utility is not a moral test for political choices, but it is a political test for political choices. Utility not only limits the political choices that can be made, but it also shows which political choice should be made.
It is important to have in mind the distinction between two kinds of utilitarianism: act-utilitarianism, that believe that actions are to be submitted to the utility test, and rule-utilitarianism, that believe that rules, and not actions, are to be submitted to that test. So some actions could be approved by an act-utilitarian (for example, a lie that happened to have beneficial consequences) and reproved by a rule-utilitarian (for example, the same lie, since lying, taken as a rule, is more noxious than beneficial). As in philosophy of law the discussion about justice is generally concerned not with acts themselves, but with norms and institutions, rule-utilitarianism will be more fruitful here.
C states, at first, that every person is to be considered and treated as an individual in pursuit of her happiness (C1). It deals not with that which society cannot do against the individual, but instead with that which society has to do for her. C conceives of society as a common enterprise for the interest of its members. Of course in this enterprise freedom and equality are social goods the individuals are interested in, but the individuals are also interested in many other goods that can be means to their happiness. Freedom and equality are, then, goods like many others, and not special, not to mention absolute goods. On the contrary, freedom and equality can and will be sacrificed often in favor of other goods, whenever utility requires so. Utility, and not equal freedom, is the ultimate test of justice.
It is worthy noting that D does not ignore that individuals pursuit happiness and does not prevent society to contribute for the individuals’ pursuit of happiness. But D conceives of the pursuit of happiness as something not central to the question of justice. For D, in order a norm or institution to be just, it does not have to contribute for the individuals’ pursuit of happiness, it is only supposed to respect (not violate) their equal freedom. If a political choice does respect equal freedom but is bad regarding its contribution for the individuals’ pursuit of happiness, it is still just. On the contrary, for C, in order a norm or institution to be just, it has to contribute for the individuals’ pursuit of happiness, even if at the cost of some amount of equal freedom.
Consequently the commitment of C with the pure majority rule system (PMRS) is not at all impossible, but it is rather problematic. In one hand, C appears to side with PMRS, as long as it would be seen as the most effective system to foster utility. In the other hand, rule-utilitarians might see the rule of law and some civil rights as fair limits for a PMRS, since they are rules whose general obedience tends to contribute for the individuals’ pursuit of happiness. Besides, some rule-utilitarians might see not only PMRS, but democracy as a whole as a poor system to foster utility. It could open space for a “Platonist” utilitarianism which should believe that decisions coldly and technically taken by some central office of experts would be more effective to foster utility for everybody than decisions passionately and uninformedly taken by common lay citizens. It is not usual, but also not impossible to come to that conclusion. Libertarianism and socialism would not be dismissed either.
Secondly, C states: That which helps a person to reach her happiness is good; that which prevents it is bad (C2). This allows for a very important remark: a norm or institution is good or bad for a certain individual, but it is just or unjust for the whole society. It makes sense to say that a norm reserving all the places in universities only for white people would be bad for black individuals and good for white individuals, but it would make no sense to say that that norm would be unjust for black individuals and just for white individuals. The subject a norm is just for is society as a whole, so that if a norm is just, it is so for society, that is, for all individuals. For C, good or bad has to do with how much something furthers a certain individual’s pursuit of happiness. Just or unjust has to do with how much something furthers most individuals’ pursuit of happiness.
It is not impossible, but it is extremely unlikely that two political choices can be exactly equal in their ability to further most individuals’ pursuit of happiness. Utility test will more often select only one of the wide range of possible political choices as being that one that is just. When utility fails to provide only one option to follow, it is usually for a flaw in the exactness of its calculations, and not because of lack of ambition for this single answer. While D wants just to eliminate impermissible choices, leaving a still wide range of possibilities for politics, C wants to guide politics for the right choice among all the possibilities. The utility test is, then, mandatory both with the norms and institutions that fail and with those that succeed in it: the norms and institutions that fail in the utility test are simply forbidden, and those that succeed in it – that is, that foster utility in a measure larger than the other ones - are simply mandatory.
Finally, the third statement of C (C3) says: That which is good for most of the persons at the same time is just. While D3 establishes the test of consistency with equal freedom, C3 puts forward the utility test. There are many steps and cautions to be observed on applying the utility test. One of them is that, as one cannot foreknow the actual consequences of some norm or institution, one has to evaluate it in sight of its likely and predictable consequences. Other steps are to balance good and bad consequences; to account the number of addressees of both the good and the bad consequences; to measure quantity, quality, immediateness and duration of each consequence etc. The complexity and vagueness of those calculations have attracted a long history of criticism against utilitarianism. But it is important noting that those criticisms are due to operational flaws, so they are not moral objections.
The actual moral objections to utilitarianism are concentrated in some of its contra-intuitive results. Famous are the examples of a majority depriving the possessions of a minority and reducing it to slavery and of a single individual who is murdered in order to use his organs to save four individuals’ lives. In both cases, it seems that deprivation, slavery and murder, though roughly immoral, would be “good for most of the persons at the same time”. But it is actually more a trouble for act-utilitarians. Rule-utilitarians could simply answer by saying that deprivation, slavery and murder, when taken as rules, are more noxious than beneficial, being, then, immoral. It is still possible to reformulate the same criticisms and press those examples against rule-utilitarianism, by saying, for instance, that instead of submitting the rule of murder to the utility test, one could submit the rule of murdering a single unmarried and childless man to save the lives of four or more young men, married and with children; in that case, it would be hard to show that this rule would be immoral except by appealing to the living man’s right to stay alive, despite of anything. And a "right despite anything" is the brand mark of the deontological, not the consequentialist approach. But it is undeniable that rule-utilitarianism has a more promising way to face these criticism than act-utilitarianism.
A line of criticism way more convincing against rule-utilitarianism is indicating its apparent flaw to sustain absolute rules. The rule of law and popular sovereignty, for example, might be endorsed by rule-utilitarians, but hardly with any absolute status. Under a particular constellation of fortunate circumstances (a peaceful situation of social and economical development and with an educated, rational and well-informed population) the rule of law and the rule of the popular sovereignty would apparently be very beneficial. However in the absence of those states of affairs (for instance, in the imminent danger of terrorism and with a poorly educated, manipulatively misinformed and potentially irrational population) there would appear to be little reason to think of those rules as still beneficial. In this same position would be the civil rights, many of which are inherently conceived of as invariable and non relative, but in a utilitarian view like C they would become only rules whose value and weight would depend on their variable and relative degree of utility in each scenario. The acceptability of C will depend on its ability to answer to that objection as well.