Social Justice Theories

Further Reading

The following is excerpted from the Internet Encyclopedia of Philosophy, which is a peer-reviewed online resource. You can read the whole "Western Theories of Justice" piece here.

 

Here are some notes on the various philosophers' theories of social justice that will help you understand the differences in ethical systems.

 

Aristotle

After working with Plato at his Academy for a couple of decades, Aristotle was understandably most influenced by his teacher, also adopting, for example, a virtue theory of ethics.  Yet part of Aristotle’s greatness stems from his capacity for critical appropriation, and he became arguably Plato’s most able critic as well as his most famous follower in wanting to develop a credible alternative to Sophism.  Book V of his great Nicomachean Ethics deals in considerable depth with the moral and political virtue of justice.  It begins vacuously enough with the circular claim that it is the condition that renders us just agents inclined to desire and practice justice.  But his analysis soon becomes more illuminating when he specifies it in terms of what is lawful and fair.  What is in accordance with the law of a state is thought to be conducive to the common good and/or to that of its rulers.  In general, citizens should obey such law in order to be just.  The problem is that civil law can itself be unjust in the sense of being unfair to some, so that we need to consider special justice as a function of fairness.  He analyzes this into two sorts:  distributive justice involves dividing benefits and burdens fairly among members of a community, while corrective justice requires us, in some circumstances, to try to restore a fair balance in interpersonal relations where it has been lost.  If a member of a community has been unfairly benefited or burdened with more or less than is deserved in the way of social distributions, then corrective justice can be required, as, for example, by a court of law.  Notice that Aristotle is no more an egalitarian than Plato was—while a sort of social reciprocity may be needed, it must be of a proportional sort rather than equal.  Like all moral virtues, for Aristotle, justice is a rational mean between bad extremes.  Proportional equality or equity involves the “intermediate” position between someone’s unfairly getting “less” than is deserved and unfairly getting “more” at another’s expense.  The “mean” of justice lies between the vices of getting too much and getting too little, relative to what one deserves, these being two opposite types of injustice, one of “disproportionate excess,” the other of disproportionate “deficiency” (Nicomachean, pp. 67-74, 76; 1129a-1132b, 1134a).

 

Political justice, of both the lawful and the fair sort, is held to apply only to those who are citizens of a political community (a polis) by virtue of being “free and either proportionately or numerically equal,” those whose interpersonal relations are governed by the rule of law, for law is a prerequisite of political justice and injustice.  But, since individuals tend to be selfishly biased, the law should be a product of reason rather than of particular rulers.  Aristotle is prepared to distinguish between what is naturally just and unjust, on the one hand, such as whom one may legitimately kill, and what is merely conventionally just or unjust, on the other, such as a particular system of taxation for some particular society.  But the Sophists are wrong to suggest that all political justice is the artificial result of legal convention and to discount all universal natural justice (ibid., pp. 77-78; 1134a-1135a; cf. Rhetoric, pp. 105-106; 1374a-b).  What is allegedly at stake here is our developing a moral virtue that is essential to the well-being of society, as well as to the flourishing of any human being.  Another valuable dimension of Aristotle’s discussion here is his treatment of the relationship between justice and decency, for sometimes following the letter of the law would violate fairness or reasonable equity.  A decent person might selfishly benefit from being a stickler regarding following the law exactly but decide to take less or give more for the sake of the common good.  In this way, decency can correct the limitations of the law and represents a higher form of justice (Nicomachean, pp. 83-84; 1137a-1138a).

 

In his Politics, Aristotle further considers political justice and its relation to equality.  We can admit that the former involves the latter but must carefully specify by maintaining that justice involves equality “not for everyone, only for equals.”  He agrees with Plato that political democracy is intrinsically unjust because, by its very nature, it tries to treat unequals as if they were equals.  Justice rather requires inequality for people who are unequal.  But, then, oligarchy is also intrinsically unjust insofar as it involves treating equals as unequal because of some contingent disparity, of birth, wealth, etc.  Rather, those in a just political society who contribute the most to the common good will receive a larger share, because they thus exhibit more political virtue, than those who are inferior in that respect; it would be simply wrong, from the perspective of political justice, for them to receive equal shares.  Thus political justice must be viewed as a function of the common good of a community.  It is the attempt to specify the equality or inequality among people, he admits, that constitutes a key “problem” of “political philosophy.”  He thinks we can all readily agree that political justice requires “proportional” rather than numerical equality.  But inferiors have a vested interest in thinking that those who are equal in some respect should be equal in all respects, while superiors are biased, in the opposite direction, to imagine that those who are unequal in some way should be unequal in all ways.  Thus, for instance, those who are equally citizens are not necessarily equal in political virtue, and those who are financially richer are not necessarily morally or mentally superior.  What is relevant here is “equality according to merit,” though Aristotle cannot precisely specify what, exactly, counts as merit, for how much it must count, who is to measure it, and by what standard.  All he can suggest, for example in some of his comments on the desirable aristocratic government, is that it must involve moral and intellectual virtue (Politics, pp. 79, 81, 86, 134, 136, 151, 153; 1280a, 1281a, 1282b, 1301a-1302a, 1307a, 1308a).

 

Let us now consider how Aristotle applies his own theory of justice to the social problem of alleged superiors and inferiors, before attempting a brief critique of that theory.  While Plato accepted slavery as a legitimate social institution but argued for equal opportunity for women, in his Politics, Aristotle accepts sexual inequality while actively defending slavery.  Anyone who is inferior intellectually and morally is properly socio-politically inferior in a well-ordered polis.  A human being can be naturally autonomous or not, “a natural slave” being defective in rationality and morality, and thus naturally fit to belong to a superior; such a human can rightly be regarded as “a piece of property,” or another person’s “tool for action.”  Given natural human inequality, it is allegedly inappropriate that all should rule or share in ruling.  Aristotle holds that some are marked as superior and fit to rule from birth, while others are inferior and marked from birth to be ruled by others.  This supposedly applies not only to ethnic groups, but also to the genders, and he unequivocally asserts that males are “naturally superior” and females “naturally inferior,” the former being fit to rule and the latter to be ruled.  The claim is that it is naturally better for women themselves that they be ruled by men, as it is better for “natural slaves” that they should be ruled by those who are “naturally free.”  Now Aristotle does argue only for natural slavery.  It was the custom (notice the distinction, used here, between custom and nature) in antiquity to make slaves of conquered enemies who become prisoners of war.  But Aristotle (like Plato) believes that Greeks are born for free and rational self-rule, unlike non-Greeks (“barbarians”), who are naturally inferior and incapable of it.  So the fact that a human being is defeated or captured is no assurance that he is fit for slavery, as an unjust war may have been imposed on a nobler society by a more primitive one.  While granting that Greeks and non-Greeks, as well as men and women, are all truly human, Aristotle justifies the alleged inequality among them based on what he calls the “deliberative” capacity of their rational souls.  The natural slave’s rational soul supposedly lacks this, a woman has it but it lacks the authority for her to be autonomous, a (free male) child has it in some developmental stage, and a naturally superior free male has it developed and available for governance (ibid., pp. 7-11, 23; 1254a-1255a, 1260a).

 

This application creates a helpful path to a critique of Aristotle’s theory of justice.  If we feel that it is unjust to discriminate against people merely on account of their gender and/or ethnic origin, as philosophers, we try to identify the rational root of the problem.  If our moral intuitions are correct against Aristotle (and some would even call his views here sexist and racist), he may be mistaken about a matter of fact or about a value judgment or both.  Surely he is wrong about all women and non-Greeks, as such, being essentially inferior to Greek males in relevant ways, for cultural history has demonstrated that, when given opportunities, women and non-Greeks have shown themselves to be significantly equal.  But it appears that Aristotle may also have been wrong in leaping from the factual claim of inequality to the value judgment that it is therefore right that inferiors ought to be socially, legally, politically, and economically subordinate—like Plato and others of his culture (for which he is an apologist here), Aristotle seems to have no conception of human rights as such.  Like Plato, he is arguing for an objective theory of personal and social justice as a preferable alternative to the relativistic one of the Sophists.  Even though there is something attractive about Aristotle’s empirical (as opposed to Plato’s idealistic) approach to justice, it condemns him to the dubious position of needing to derive claims about how things ought to be from factual claims about the way things actually are.  It also leaves Aristotle with little viable means of establishing a universal perspective that will respect the equal dignity of all humans, as such.  Thus his theory, like Plato’s, fails adequately to respect all persons as free, rational agents.  They were so focused on the ways in which people are unequal, that they could not appreciate any fundamental moral equality that might provide a platform for natural human rights.

 

Rawls

Rawls burst into prominence in 1958 with the publication of his game-changing paper, “Justice as Fairness.”  Though it was not his first important publication, it revived the social contract theory that had been languishing in the wake of Hume’s critique and its denigration by utilitarians and pragmatists, though it was a Kantian version of it that Rawls advocated.  This led to a greatly developed book version, A Theory of Justice, published in 1971, arguably the most important book of American philosophy published in the second half of the last century.  Rawls makes it clear that his theory, which he calls “justice as fairness,” assumes a Kantian view of persons as “free and equal,” morally autonomous, rational agents, who are not necessarily egoists.  He also makes it clear early on that he means to present his theory as a preferable alternative to that of utilitarians. 

 

He asks us to imagine persons in a hypothetical “initial situation” which he calls “the original position” (corresponding to the “state of nature” or “natural condition” of Hobbes, but clearly not presented as any sort of historical or pre-historical fact).  This is strikingly characterized by what Rawls calls “the veil of ignorance,” a device designed to minimize the influence of selfish bias in attempting to determine what would be just.  If you must decide on what sort of society you could commit yourself to accepting as a permanent member and were not allowed to factor in specific knowledge about yourself—such as your gender, race, ethnic identity, level of intelligence, physical strength, quickness and stamina, and so forth—then you would presumably exercise the rational choice to make the society as fair for everyone as possible, lest you find yourself at the bottom of that society for the rest of your life.  In such a “purely hypothetical” situation, Rawls believes that we would rationally adopt two basic principles of justice for our society:  “the first requires equality in the assignment of basic rights and duties, while the second holds that social and economic inequalities, for example inequalities of wealth and authority, are just only if they result in compensating benefits for everyone, and in particular for the least advantaged members of society.”  Here we see Rawls conceiving of justice, the primary social virtue, as requiring equal basic liberties for all citizens and a presumption of equality even regarding socio-economic goods.  He emphasizes the point that these principles rule out as unjust the utilitarian justification of disadvantages for some on account of greater advantages for others, since that would be rationally unacceptable to one operating under the veil of ignorance.  Like Kant, Rawls is opposed to the teleological or consequentialist gambit of defining the right (including the just) in terms of “maximizing the good”; he rather, like Kant, the deontologist, is committed to a “priority of the right over the good.”  Justice is not reducible to utility or pragmatic desirability.  We should notice that the first principle of justice, which requires maximum equality of rights and duties for all members of society, is prior in “serial or lexical order” to the second, which specifies how socio-economic inequalities can be justified (Theory, pp. 12-26, 31, 42-43). 

 

Again, this is anti-utilitarian, in that no increase in socio-economic benefits for anyone can ever justify anything less than maximum equality of rights and duties for all.  Thus, for example, if enslaving a few members of society generated vastly more benefits for the majority than liabilities for them, such a bargain would be categorically ruled out as unjust.

 

Rawls proceeds to develop his articulation of these two principles of justice more carefully.  He reformulates the first one in terms of maximum equal liberty, writing that “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.”  The basic liberties intended concern such civil rights as are protected in our Constitution—free speech, freedom of assembly, freedom of conscience, the right to private property, the rights to vote and hold public office, freedom from arbitrary arrest and seizure, etc.  The lexical priority of this first principle requires that it be categorical in that the only justification for limiting any basic liberties would be to enhance other basic liberties; for example, it might be just to limit free access of the press to a sensational legal proceeding in order to protect the right of the accused to a fair trial.  Rawls restates his second principle to maintain that “social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.”  Thus socio-economic inequalities can be justified, but only if both conditions are met.  The first condition (a) is “the difference principle” and takes seriously the idea that every socio-economic difference separating one member of society from others must be beneficial to all, including the person ranked lowest.  The second condition is one of “fair equality of opportunity,” in that socio-economic advantages must be connected to positions to which all members of society could have access.  For example, the office of the presidency has attached to it greater social prestige and income than is available to most of us.  Is that just?  It can be, assuming that all of us, as citizens, could achieve that office with its compensations and that even those of us at or near the bottom of the socio-economic scale benefit from intelligent, talented people accepting the awesome responsibilities of that office.  Just as the first principle must be lexically prior to the second, Rawls also maintains that “fair opportunity is prior to the difference principle.”  Thus, if we have to choose between equal opportunity for all and socio-economically benefiting “the least advantaged” members of society, the former has priority over the latter.  Most of us today might be readily sympathetic to the first principle and the equal opportunity condition, while finding the difference principle to be objectionably egalitarian, to the point of threatening incentives to contribute more than is required.  Rawls does consider a “mixed conception” of justice that most of us would regard as more attractive “arising when the principle of average utility constrained by a certain social minimum is substituted for the difference principle, everything else remaining unchanged.”  But there would be a problem of fairly agreeing on that acceptable social minimum, and it would change with shifting contingent circumstances.  It is curious that his own theory of “justice as fairness” gets attacked by socialists such as Nielsen (whom we shall consider) for sacrificing equality for the sake of liberty and by libertarians such as Nozick (whom we shall also consider) for giving up too much liberty for the sake of equality.  Rawls briefly suggests that his theory of justice as fairness might be applied to international relations, in general, and to just war theory, in particular (ibid., pp. 60-65, 75, 83, 302-303, 316, 378).

 

Rawls applies his theory of justice to the domestic issue of civil disobedience.  No society is perfectly just.  A generally or “nearly just society” can have unjust laws, in which case its citizens may or may not have a duty to comply with them, depending on how severely unjust they are.  If the severity of the injustice is not great, then respect for democratic majority rule might morally dictate compliance.  Otherwise, citizens can feel a moral obligation to engage in civil disobedience, which Rawls defines as “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.”  Certain conditions must be met in order that an act of civil disobedience be justified:  (1) it should normally address violations of equal civil liberties (the first principle of justice) and/or of “fair equality of opportunity” (the second part of the second principle), with violations of the difference principle (the first part of the second principle) being murkier and, thus, harder to justify; (2) the act of civil disobedience should come only after appeals to the political majority have been reasonably tried and failed; (3) it must seem likely to accomplish more good than harm for the social order.  Yet, even if all three of these conditions seem to be met and the disobedient action seems right, there remains the practical question of whether it would be “wise or prudent,” under the circumstances, to engage in the act of civil disobedience.  Ultimately, every individual must decide for himself or herself whether such action is morally and prudentially justifiable or not as reasonably and responsibly as possible.  The acts of civil disobedience of Martin Luther King (to whom Rawls refers in a footnote) seem to have met all the conditions, to have been done in the name of justice, and to have been morally justified (ibid., pp. 350-357, 363-367, 372-376, 389-390, 364n).

 

Rawls’s second book was Political Liberalism.  Here he works out how a just political conception might develop a workable “overlapping consensus” despite the challenges to social union posed by a pluralism of “reasonable comprehensive doctrines.”  This, of course, calls for some explanation.  A just society must protect basic liberties equally for all of its members, including freedom of thought and its necessary condition, freedom of expression.  But, in a free society that protects these basic liberties, a pluralism of views and values is likely to develop, such that people can seriously disagree about matters they hold dear.  They will develop their own “comprehensive doctrines,” or systems of beliefs that may govern all significant aspects of their lives.  These may be religious (like Christianity) or philosophical (like Kantianism) or moral (like utilitarian).  Yet a variety of potentially conflicting comprehensive doctrines may be such that all are reasonable.  In such a case, social unity requires respect for and tolerance of other sets of beliefs.  It would be unjust deliberately to suppress reasonable comprehensive doctrines merely because they are different from our own.  The problem of political liberalism nowadays is how we can establish “a stable and just society whose free and equal citizens are deeply divided by conflicting and even incommensurable religious, philosophical, and moral doctrines.”  What is needed is a shared “political conception of justice” that is neutral regarding competing comprehensive doctrines.  This could allow for “an overlapping consensus of reasonable comprehensive doctrines,” such that tolerance and mutual respect are operative even among those committed to incompatible views and values, so long as they are reasonable (Liberalism, pp. 291-292, 340-342, 145, xviii, 13, 152n., 59-60, 133, 154-155, 144, 134). 

 

Thus, for example, a Christian Kantian and an atheistic utilitarian, while sincerely disagreeing on many ethical principles, philosophical ideas, and religious beliefs, can unite in mutually accepting, for instance, the American Constitution as properly binding on all of us equally.  This agreement will enable them mutually to participate in social cooperation, the terms of which are fair and reciprocal and which can contribute to the reasonable good of the entire society.

 

Near the end of his life, Rawls published The Law of Peoples, in which he tried to apply his theory of justice to international relations.  Given that not all societies act justly and that societies have a right to defend themselves against aggressive violent force, there can be a right to go to war (jus ad bellum).  Yet even then, not all is fair in war, and rules of just warfare (jus in bello) should be observed:  (1) the goal must be a “just and lasting peace”; (2) it must be waged in defense of freedom and security from aggression; (3) reasonable attempts must be made not to attack innocent non-combatants; (4) the human rights of enemies (for example, against being tortured) must be respected; (5) attempts should be made to establish peaceful relations; and (6) practical tactics must always remain within the parameters of moral principles.  After hostilities have ceased, just conquerors must treat their conquered former enemies with respect—not, for example, enslaving them or denying them civil liberties.  Rawls adds a very controversial “supreme emergency exemption” in relation to the third rule—when a relatively just society’s very survival is in desperate peril, its attacking enemy civilian populations, as by bombing cities, can be justifiable.  More generally, Rawls applies his theory of justice to international relations, generating eight rules regarding how the people of other societies must be treated.  While we do not have time to explore them all here, the last one is sufficiently provocative to be worth our considering:  “Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime.”  This, of course, goes beyond not exploiting, cheating, manipulating, deceiving, and interfering with others to a positive duty of trying to help them, at the cost of time, money, and other resources.  Justice demands that we try to assist what Rawls calls “burdened societies,” so that doing so is not morally supererogatory.  What is most interesting here is what Rawls refuses to say.  While different peoples, internationally speaking, might be imagined in an original position under the veil of ignorance, and Rawls would favor encouraging equal liberties and opportunities for all, he refuses to apply the difference principle globally in such a way as to indicate that justice requires a massive redistribution of wealth from richer to poorer societies (Peoples, pp. 94-96, 98-99, 37, 106, 114-117).

 

From a critical perspective, Rawls’s theory of civil disobedience is excellent, as are his theory of political liberalism and his version of the just war theory, except for that “supreme emergency exemption,” which uncharacteristically tries to make right a function of teleological good.  His views on international aid seem so well worked out that, ironically, they call into question part of his general theory of justice itself.  It does not seem plausible that the difference principle should apply intrasocietally but not internationally.  The problem may be with the difference principle itself.  It is not at all clear that rational agents in a hypothetical original position would adopt such an egalitarian principle.  The veil of ignorance leading to this controversial principle can itself be questioned as artificial and unrealistic; one might object that, far from being methodologically neutral, it sets up a bias (towards, for example, being risk-aversive) that renders Rawls’s own favored principles of justice almost a foregone conclusion.  Indeed, the “mixed conception” that Rawls himself considers and rejects seems more plausible and more universally applicable—keeping the first principle and the second part of the second but replacing the difference principle with one of average utility, constrained by some social minimum, adjustable with changing circumstances.  Thus we could satisfactorily specify the requirements of an essentially Kantian conception of justice, as requiring respect for the dignity of all persons as free and equal, rational moral agents.  While less egalitarian than what Rawls offers, it might prove an attractive alternative.  To what extent should liberty be constrained by equality in a just society?  This is a central issue that divides him from many post-Rawlsians, to a few of whom we now briefly turn.

 

b. Post-Rawls

Rawls’s monumental work on justice theory revitalized political philosophy in the United States and other English-speaking countries.  In this final subsection, we shall briefly survey some of the most important recent attempts to provide preferable alternatives to Rawls’s conception of justice.  They will represent six different approaches.  We shall consider, in succession, (1) the libertarian approach of Robert Nozick, (2) the socialistic one of Kai Nielsen, (3) the communitarian one of Michael Sandel, (4) the globalist one of Thomas Pogge, (5) the feminist one of Martha Nussbaum, and (6) the rights-based one of Michael Boylan.  As this is merely a quick survey, we shall not delve much into the details of their theories (limiting ourselves to a single work by each) or explore their applications or do much in the way of a critique of them.  But the point will be to get a sense of several recent approaches to developing views of justice in the wake of Rawls.

(1)    Nozick

Nozick (a departmental colleague of Rawls at Harvard) was one of the first and remains one of the most famous critics of Rawls’s liberal theory of justice.  Both are fundamentally committed to individual liberty.  But as a libertarian, Nozick is opposed to compromising individual liberty in order to promote socio-economic equality and advocates a “minimal state” as the only sort that can be socially just.  In Anarchy, State, and Utopia (1974), especially in its famous chapter on “Distributive Justice,” while praising Rawls’s first book as the most important “work in political and moral philosophy” since that of Mill, Nozick  argues for what he calls an “entitlement conception of justice” in terms of three principles of just holdings.  First, anyone who justly acquires any holding is rightly entitled to keep and use it.  Second, anyone who acquires any holding by means of a just transfer of property is rightly entitled to keep and use it.  It is only through some combination of these two approaches that anyone is rightly entitled to any holding.  But some people acquire holdings unjustly—e.g., by theft or fraud or force—so that there are illegitimate holdings.  So, third, justice can require the rectification of unjust past acquisitions.  These three principles of just holdings—“the principle of acquisition of holdings, the principle of transfer of holdings, and the principle of rectification of the violations of the first two principles”—constitute the core of Nozick’s libertarian entitlement theory of justice.  People should be entitled to use their own property as they see fit, so long as they are entitled to it.  On this view, any pattern of distribution, such as Rawls’s difference principle, that would force people to give up any holdings to which they are entitled in order to give it to someone else (i.e., a redistribution of wealth) is unjust.  Thus, for Nozick, any state, such as ours or one Rawls would favor, that is “more extensive” than a minimal state and redistributes wealth by taxing those who are relatively well off to benefit the disadvantaged necessarily “violates people’s rights” (State, pp. 149, 183, 230, 150-153, 230-231, 149).

(2)    Nielsen

Nielsen, as a socialist (against both Rawls and Nozick) considers equality to be a more fundamental ideal than individual liberty; this is more in keeping with Marxism than with the liberal/libertarian tradition that has largely stemmed from Locke.  (Whereas capitalism supports the ownership and control of the means of producing and distribution material goods by private capital or wealth, socialism holds that they should be owned and controlled by society as a whole.)  If Nozick accuses Rawls of going too far in requiring a redistribution of wealth, Nielsen criticizes him for favoring individual liberty at the expense of social equality.  In direct contrast to Rawls’s two liberal principles of justice, in “Radical Egalitarian Justice:  Justice as Equality,” Nielsen proposes his own two socialistic principles constituting the core of his “egalitarian conception of justice.”  In his first principle, he calls for “equal basic liberties and opportunities” (rather than for merely “equal basic liberties”), including the opportunities “for meaningful work, for self-determination, and political participation,” which he considers important to promote “equal moral autonomy and equal self-respect.”  Also (unlike Rawls) he does not claim any lexical priority for either principle over the other.  His sharper departure from Rawls can be found in his second principle, which is to replace the difference principle that allegedly justified socio-economic inequality.  After specifying a few qualifications, it calls for “the income and wealth” of society “to be so divided that each person will have a right to an equal share” and for the burdens of society “also to be equally shared, subject, of course, to limitations by differing abilities and differing situations.”  He argues that his own second principle would better promote “equal self-respect and equal moral autonomy” among the members of society.  Thus we might eliminate social stratification and class exploitation, in accordance with the ideals of Marxist humanism (“Equality,” pp. 209, 211-213, 222-225).

(3)    Sandel

Sandel, as a communitarian, argues (against Rawls and Nozick) that the well-being of a community takes precedence over individual liberty and (against Nielsen) over the socio-economic welfare of its members.  While acknowledging that Rawls is not so “narrowly individualistic” as to rule out the value of building social community, in Liberalism and the Limits of Justice, he maintains that the individualism of persons in the original position is such that “a sense of community” is not a basic “constituent of their identify as such,” so that community is bound to remain secondary and derivative in the Rawlsian theory.  To deny that community values help constitute one’s personal identity is to render impossible any preexisting interpersonal good from which a sense of right can be derived.  Thus, for Sandel, Rawls’s myopic theory of human nature gives him no basis for any pre-political natural rights.  So his conception of justice based on this impoverished view must fail to reflect “the shared self-understandings” of who they are as members of community that must undergird the basic structure of political society.  Through the interpersonal relationships of community, we establish “more or less enduring attachments and commitments” that help define who we are, as well as the values that will help characterize our sense of justice as a common good that cannot be properly understood by individuals detached from community.  Thus justice must determine what is right as serving the goods we embrace in a social context—“as members of this family or community or nation or people, as bearers of this history, as sons and daughters of that revolution, as citizens of this republic” rather than as abstract individuals (Limits, pp. 66, 60-65, 87, 150, 172-174, 179, 183, 179).

(4)    Pogge

Pogge develops a globalist interpretation of justice as fairness that, in a sense, is more consistent than Rawls’s own.  More specifically, it not only accepts the difference principle but wants to apply it on an international level as well as nationally.  In “An Egalitarian Law of Peoples,” Pogge observes that Rawls means his theory of justice to be relatively “egalitarian.”  And, as applied intranationally, so it is.  But, as applied internationally, it is not.  As he says, there is a disconnect “between Rawls’s conception of domestic and of global justice.”  (We should note that, like Sandel’s critique, which we just considered, Pogge’s is not a complete theory of justice, but more a modification of Rawls’s own.)  While Rawls does believe that well-off societies have a duty to assist burdened societies, he rejects the idea of a global application of his difference principle.  What Pogge is proposing is a global egalitarian principle of distributive justice.  He thinks that this will address socio-economic equalities that are to the detriment of the world’s worst-off persons.  What he proposes is “a global resources tax, or GRT.”  This means that, although each of the peoples of our planet “owns and fully controls all resources within its national territory,” it will be taxed on all of the resources it extracts.  If it uses those extracted resources itself, it must pay the tax itself.  If it sells some to other societies, presumably at least part of the tax burden will be borne by buyers in the form of higher sales prices.  “The GRT is then a tax on consumption” of our planet’s resources.  Corporations extracting resources (such as oil companies and coal mining companies) would pay their taxes to their governments which, in turn, would be responsible for transferring funds to disadvantaged societies to help the global poor.  Such payments should be regarded as “a matter of entitlement rather than charity,” an obligation of international justice.  If the governments of the poorer states were honest, they could disburse the funds; if they were corrupt, then transfers could go through United Nations agencies and/or nongovernmental organizations.  At any rate, they should be channeled toward societies in which they could improve the lot of the poor and disadvantaged.  (Of course, less well-off societies would be free to refuse such funds, if they so chose.)  But, one might wonder, would well-off societies only be motivated to pay their fair share by benevolence, a sense of justice, and possible shame at being exposed for not doing so?  No, there could be international sanctions:  “Once the agency facilitating the flow of GRT payments reports that a country has not met its obligations under the scheme, all other countries are required to impose duties on imports from, and perhaps also similar levies on exports to, this country to raise funds equivalent to its GRT obligations plus the cost of these enforcement measures.”  Pogge believes that well-off societies should recognize that his more egalitarian model of international relations is also more just than Rawls’s law of peoples (“Egalitarian,” pp. 195-196, 210, 199-202, 205, 219, 224).

(5)    Nussbaum

Nussbaum, like Pogge (and unlike Nozick and Nielsen), does not so much reject Rawls’s liberal conception of justice as extend its explicit application.  In Sex and Social Justice, she argues for a feminist interpretation of justice, using what she calls a “capabilities approach” that connects with “the tradition of Kantian liberalism,” nowadays represented by Rawls, tapping into their “notions of dignity and liberty,” as a foundation for discussing the demands of justice regarding “women’s equality and women’s human rights.”  The feminism she embraces has five key dimensions:  (1) an internationalism, such that it is not limited to any one particular culture; (2) a humanism, such as affirms a basic equal worth in all human beings and promotes justice for all; (3) a commitment to liberalism as the perspective that best protects and promotes the “basic human capacities for choice and reasoning” that render all humans as having an equal worth; (4) a sensitivity to the cultural shaping of our preferences and desires; and (5) a concern for sympathetic understanding between the sexes.  She expresses an appreciation for the primary goods at the core of Rawls’s theory, while asserting that his analysis does not go far enough.  She offers her own list of ten “central human functional capabilities” that must be respected by a just society:  (1) life of a normal, natural duration; (2) bodily health and integrity, including adequate nourishment and shelter; (3) bodily integrity regarding, for example, freedom of movement and security against assault; (4) freedom to exercise one’s senses, imagination, and thought as one pleases, which includes freedom of expression; (5) freedom to form emotional attachments to persons and things, which includes freedom of association; (6) the development and exercise of practical reason, the capacity to form one’s own conception of the good and to try to plan one’s own life, which includes the protection of freedom of conscience; (7) freedom of affiliation on equal terms with others, which involves provisions of nondiscrimination; (8) concern for and possible relationships with animals, plants, and the world of nature; (9) the freedom to play, to seek amusement, and to enjoy recreational activities; and (10) some control over one’s own political environment, including the right to vote, and one’s material environment, including the rights to seek meaningful work and to hold property.  All of these capabilities are essential to our functioning as flourishing human beings and should be assured for all citizens of a just society.  But, historically, women have been and still are short-changed with respect to them and should be guaranteed their protection in the name of justice (Sex, pp. 24, 6-14, 34, 40-42).

(6)    Boylan

Boylan has recently presented “a ‘rights-based’ deontological approach based upon the necessary conditions for human action.”  In A Just Society, he observes that human goods are more or less deeply “embedded” as conditions of human action, leading to a hierarchy that can be set forth.  There are two levels of basic goods.  The most deeply embedded of these, such as food, clothing, shelter, protection from physical harm, are absolutely necessary for any meaningful human action.  The second level of basic goods comprises (less) deeply embedded ones, such as basic knowledge and skills such as are imparted by education, social structures that allow us to trust one another, basic assurance that we will not be exploited, and the protection of basic human rights.  Next, there are three levels of secondary goods.  The most embedded of these are life enhancing, if not necessary for any meaningful action, such as respect, equal opportunity, and the capacity to form and follow one’s own plan of life and to participate actively and equally in community, characterized by shared values.  A second level of secondary goods comprises those that are useful for human action, such as having and being able to use property, being able to benefit from one’s own labor, and being able to pursue goods typically owned by most of one’s fellow citizens.  The third level of secondary goods comprises those that are least embedded as conditions of meaningful action but still desirable as luxuries, such as being able to seek pleasant objectives that most of one’s fellow citizens cannot expect to achieve and being able to compete for somewhat more than others in one’s society.  The more deeply embedded goods are as conditions of meaningful human action, the more right to them people have.  Boylan follows Kant and Rawls in holding an ultimate moral imperative is that individual human agents and their rights must be respected.  This is a matter of justice, distributive justice involving a fair distribution of social goods and services and retributive justice involving proper ways for society to treat those who violate the rules.  A just society has a duty to provide basic goods equally to all of its members, if it can do so.  But things get more complicated with regards to secondary goods.  A just society will try to provide the first level of secondary goods, those that are life enhancing, equally to all its members.  Yet this becomes more problematic with the second and third levels of secondary goods—those that are useful and luxurious—as the conditions for meaningful human action have already been satisfied by more deeply embedded ones.  The need that people have to derive rewards for their work commensurate with their achievement would seem to militate against any guarantee of equal shares in these, even if society could provide them, although comparable achievement should be comparably rewarded.  Finally, in the area of retributive justice, we may briefly consider three scenarios.  First, when one person takes a tangible good from another person, justice requires that the perpetrator return to the victim some tangible good(s) of comparable worth, plus compensation proportionate to the harm done the victim by the loss.  Second, when one person takes an intangible good from another person, justice requires that the perpetrator give the victim some tangible good as adequate compensation for the pain and suffering caused by the loss.  And, third, when one person injures another person through the deprivation of a valued good that negatively affects society, society can justly incarcerate the perpetrator for a period of time proportionate to the loss (Society, pp. x, 53-54, 56-58, 131, 138, 143-144, 164-167, 174-175, 181, 183).

 

In conclusion, we might observe that, in this rights-based alternative, as in the previous five (the libertarian, the socialistic, the communitarian, the globalist, and the feminist) we have considered, there is an attempt to interpret justice as requiring respect for the dignity of all persons as free and equal, rational moral agents.  This historical survey has tracked the progressive development of this Kantian idea as becoming increasingly prominent in Western theories of justice.

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