Justice

Wojciech Sadurski

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138722583
• eBook ISBN: 9781351758246
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This title was first published in 2001. A collection of some of the most significant and influential articles on the theory of justice written from the perspectives of legal theory, ethics, political philosophy and political theory.

Part I
The Concept of Justice

[1]
Humanity before Justice

T.D. CAMPBELL*

Advocates of the welfare state often appeal to social justice as the moral basis of their claim that distribution of scarce resources ought to be made in proportion to the needs of potential recipients, at least to a certain minimum level of satisfaction. More generally, it is commonly assumed that need is certainly one and perhaps the main factor which ought to determine any just distribution of benefits and burdens. Thus, when the Labour Government abolished medical prescription charges under the National Health Service in 1964 the then Prime Minister, Harold Wilson, defended this step in the House of Commons by saying that it was ‘unjust’ to put such ‘burdens on the old and sick’ and he went on to cite the principle ‘from each according to his means, to each according to his needs’.¹

This use of the language of justice in the formulation of demands for, or justifications of, improvements in the welfare of disadvantaged sections of the population is not confined to the rhetoric of political debate. It can be found, for instance, in the more measured statements of such theoreticians of social reform as Richard M. Titmuss who saw ‘the future development of welfare policies’, especially relating to poverty amongst the old, as a matter of ‘redistributive social justice’.² Similarly, C. A. R. Crosland, in discussing the uneven distribution of pecuniary and other benefits asserts that ‘inequality in the distribution of these resources among the elderly, the sick and those with large families constitutes a definite social injustice’.³

Against this tendency to subsume the principle of allocation in accordance with need under the heading of justice I wish to argue that it is conceptually mistaken and tactically unwise for welfare moralists to imply that need per se is a criterion of a just distribution and that their case would be more clearly stated and therefore more securely based if they were to appeal to beneficence or humanity instead of to justice.

My thesis rests on the premise that there is a close logical association between the concept of justice and that of desert or merit, an association which, I will argue, rules out any simple and direct conceptual link between the principle that distribution ought to be proportional to need and the idea of justice.

It would, of course, be naive to speak of the idea of justice if this were thought to imply that there is and could be only one such idea. I concede, for instance, that ‘justice’ is sometimes interpreted so broadly as to include all morally relevant criteria of distribution and even all principles of social morality. As such it becomes almost indistinguishable from ‘rightness’. Nevertheless, when we speak of justice in the narrow and specific sense in which it is equivalent to one but not to all moral principles of distribution, then it is normally in relation to a distribution which is primarily concerned with the merits and demerits of the distributees. Indeed it is arguable that justice, in its distinctive meaning, is to be defined as distribution in proportion to the deserts of the possible recipients. However, I shall presuppose only the weaker thesis – which is all that is required for the argument of this paper – that desert is a necessary criterion of justice in that no just distribution can properly ignore the deserts of the recipients, where desert is taken to refer to any feature of personal behaviour, character or achievement for which someone can properly be praised or blamed.

Even this may be thought to assume too much for, despite the immediate appeal and the respectable philosophical ancestry of what I shall call the meritorian analysis of justice (versions of which were held by J. S. Mill⁴ and Henry Sidgwick⁵), most present day philosophers assume that desert is, at the very most, one among many possible criteria of a just distribution. The standard contemporary view is that ‘the central core of the idea of justice is not the requital of desert but the exclusion of arbitrariness’,⁶ a formula which has no difficulty in accommodating distribution in accordance with need as a principle of justice.

While the main purpose of this paper is to indicate how, taking the meritorian analysis for granted, we should interpret and classify arguments which invoke differences in people’s needs to justify differences in our treatment of them, a brief consideration of two of the arguments which lie behind the current and widespread denial that there is a logical connection between justice and desert may help to provide a preliminary exposition and defence of the meritorian position.

The first of these arguments, used to place a wedge between justice and desert, is that, while it seems clear enough that justice involves giving each person his ‘due’, this may be interpreted, not as treating each person according to his deserts, but as treating each in accordance with his rights. Justice, it is argued, has to do with rights⁷ and to say, for instance, that it is unjust for person A to be deprived of benefit x is equivalent to saying that A has a right to x, but this is not the same thing as saying that A deserves x. Thus those who argue that, as a matter of justice, the poor ought to receive financial assistance from the State, are asserting that the poor have a right to such assistance without implying anything about their deserts; indeed it may be argued that the poor have welfare rights whether or not they deserve them and that this is precisely the force behind the demand that the poor be treated justly.

This argument confuses formal and material justice.⁸ Formal justice, which involves the consistent application of the relevant established rule or law to all cases which are alike within the terms of that rule or law, may indeed be regarded as requiring treatment of persons in accordance with their rights irrespective of their deserts. Thus, if there is a law to the effect that whenever A needs x then A is to be provided with x by the State, then A has a right to x and formal justice requires that he be provided with x. It is therefore a matter of formal justice that underprivileged groups receive those benefits to which they are entitled by law; in a welfare state, poverty confers rights, and to be treated in a formally just way ‘needy’ persons must receive that to which they are entitled, whether or not they are deserving. From the point of view of formal justice, what is due to a person, what he is entitled to, depends on his rights not on his praise-worthiness. And while it may be possible to speak of such entitlements as ‘legal deserts’ this seems artificial and is really only a way of disguising the fact that, in the case of formal justice, desert, as it is normally understood, is not a relevant factor in determining how persons are to be treated except in so far as this may be required by the relevant law. It must therefore be granted that the meritorian analysis requires reformulation if it is to cover formal justice.

However, the arguments in which we are interested are arguments about the justification rather than the application of welfare legislation, and these concern material not formal standards; that is, they have to do with the rightness or wrongness of the rules themselves rather than with their correct or incorrect administration. Such arguments raise questions about whether or not the ‘needy’ ought to have rights: that is, whether or not there ought to be a welfare state. In so far as justice is relevant to justifying arguments about welfare legislation, it is to material rather than to formal justice that we must turn, and it is material and not formal justice that the meritorian analyses as treatment in accordance with desert. For while formal justice may be defined as the exclusion of arbitrariness in the sense that it requires that the treatment of persons be rule-governed, material justice is concerned with the exclusion of a particular sort of arbitrariness in the content of these rules, an arbitrariness which arises from the failure to relate treatment to desert. In the case of material justice, what is to count as a person’s ‘due’ does depend on his deserts, and once the distinction between formal and material justice is made clear there is no reason to loosen the connection between material justice and desert on the grounds that this connection does not hold in the case of formal justice.

Even if the meritorian confines his analysis to material justice, this may still appear unconvincing, for surely desert is not the only criterion which is relevant to the determination of what rights a person ought to have? If a person’s rights are what he is entitled to in accordance with the law or rules of his community, is it not the case that many laws and rules are morally legitimated by moral considerations other than that of desert? The meritorian has no difficulty in accepting and accommodating this point for he does not claim that justice is the only moral standard by which laws may be justified. Many laws affecting our economic rights, for instance, are based on considerations of utility, a moral norm which notoriously tends to conflict with that of justice; and, to give another example, no one would want to argue that quarantine regulations, which confer on the citizen the right to be protected from certain avoidable risks of infection, must be justified on grounds of justice. Justice is not therefore the only moral standard relevant to the moral determination of what rights people ought to enjoy and we do not therefore have to define material justice in such a way that it covers all those standards in terms of which laws may be morally justified. If evaluation of laws in terms of justice is confined to those cases in which desert is a relevant factor, then the logical association between justice and desert can still be maintained.

A second reason for denying the analytical connection between justice and desert reflects contemporary doubts about the moral significance of desert and the ideas of individual responsibility that go with it. Even amongst those who do not dismiss the view that individuals are morally accountable for their actions, there are many who admit that much poverty is not the result of the moral failure of poor persons so that the deserts of the poor appear to have less moral and political significance than they were once thought to have. To see why this evaluative downgrading of the significance of desert should affect our ideas about justice it is necessary to appreciate the extent to which justice has been regarded as the ‘overriding’ moral value.⁹ If justice is morally overriding, then to define material justice as distribution in accordance with desert implies that desert ought always to take priority over all other moral considerations in determining the distribution of benefits and burdens, and this seems implausible.

However, the idea that justice must be overriding attaches to the rather vague use of ‘justice’, in which it is equivalent to rightness, rather than to its narrower and specific meaning. Justice as one amongst other moral values may quite properly be required to give way to other considerations. For instance, it is one of the purposes of this paper to demonstrate the conceptual propriety of holding the substantive moral position that what I shall call ‘humanity’ ought to come before justice in the determination of our social and political priorities. If this is accepted, then the second reason for diluting the traditional meritorian conception of justice is countered, since there is no longer any cause to argue that if a criterion of distribution is held to have high priority it must be classified as a criterion of justice.

Moving on to the offensive, the meritorian can argue that, while those contemporary analyses of justice which have taken justice to be overriding and have therefore played down the importance of desert may have provided lists of the most fundamental moral reasons for differential distribution, they have not set themselves the more precise task of saying what sets justice apart from other moral goals. Thus, there is an important sense in which they are not analyses of justice at all because they do not enable us to distinguish justice from other political values.¹⁰

It is important to see what is at stake in choosing between competing analyses of justice and the sort of political discourse which they license. To fuss about the accurate and consistent use of the language of justice is not mere academic pedantry. The connection between justice and desert is deeply embedded in the moral and political discourse of everyday life, and one consequence of this fact is that to most persons it appears that those who commend – as a requirement of justice – provision by the state of a minimum standard of living for all its citizens are implying that all poor persons deserve such assistance as is necessary to bring them to this level. But, unless desert is defined in unusually broad terms, such a view is implausible, and to put forward a poverty programme in the name of justice is, therefore, to invite the response that, since at least some of the poor are undeserving in that they themselves are largely to blame for their situation, universal provision for the poor is mistaken.

The welfare theorist who capitalizes on the language of justice can hardly deny the appositeness of this rejoinder and yet it is an objection which is irrelevant to the essence of his doctrine which is that need is, by itself, a sufficient reason for differential distribution. If he wishes to avoid being drawn off into what must be, for him, a pointless debate about the deserts of the poor and hopes to state his case clearly and efficaciously, then he must drop the terminology of justice and look elsewhere for his moral support.

There are many reasons why this suggestion may be resisted, reasons which do something to explain why misplaced appeals to justice are so common. For instance, the word ‘justice’ has strong emotive meaning such that to describe one’s policies as just can be rhetorically efficacious. Also, since, as has been pointed out, it is often supposed that justice is the overriding value of social practices, it tends to be assumed that showing a course of action to be a just one is equivalent to ensuring its definitive vindication. These are not advantages to be given up lightly.

Moreover, the obvious alternative to regarding the relief of need as a requirement of justice is to classify it as an objective of charity and, since ‘charity’ carries with it ineradicable overtones of supererogation – being usually looked upon as an optional extra of the moral life – it is felt to be an inappropriate basis for the sort of legislative action that is being demanded. The whole point of the welfare state, it can be argued, is that the needy have rights and that their assistance should not be left to the chance benefactions of wealthy individuals and voluntary organizations, and, although we have seen that rights need not be justified by appeals to justice, the absence of any obvious alternative leads people to adopt the terminology of justice in order to dissociate themselves from that of charity.

Backing up these practical points concerning the tactics of political argument – to which I shall return – those who object to my thesis could argue that distribution in accordance with need can often be subsumed under t...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I The Concept Of Justice
• Part II Justice – Desert – Redistribution
• Part III Political Liberalism And Justice
• Part IV Feminist Critiques Of Liberal Justice
• Name Index