Justice is the master concept for thinking about the fair terms of communal life. Questions about justice are pertinent to all social relations. Spouses ask whether their partners have treated them fairly. Members of sports teams ask whether teammates are doing their fair share. Students appeal to fairness when evaluating grades awarded by their teachers.
When posing these questions, people think about reciprocity. They ask whether one person returns benefits for what he/she has received. These questions arenât necessarily concerned with exact reciprocity. Rather, they ask about rough comparability: they ask whether whatâs exchanged is sufficient to sustain an ongoing, trusting relationship between free and equal people.
Criminal justice is also concerned with reciprocity. Its subject is negative reciprocity, howeverâi.e., the return of pain proportionate to the pain someone has wrongfully inflicted (or at least has attempted to inflict) on another person. When understood in this light, criminal justice can be said to address the underside of cooperative activity: it asks about the appropriate response to acts that violate the rights that make communal life possible. On this analysis, criminal justice is also concerned with fairness. Indeed, it wouldnât be worthy of the name if its aim were merely to control social interactions, for these interactions can be regulated in ways that are profoundly unfair (by locking up suspects without trial, for instance, or targeting unpopular minorities). To understand criminal justice, we thus should begin with the concept of justice. We should start out by thinking about rights, in other words, after which we will be able to turn to wrongs.
An Evaluative Concept
In characterizing an act as just, someone makes an evaluative claim. A person who invokes the term justice doesnât describe conduct. Rather, he/she evaluates itâand does so by considering it in light of a premise about how people ought to behave. The distinction at stake here (between description and evaluation) is essential to the organization of social life, for important as it is to describe behavior accurately, itâs also critical to think carefully about what people ought to do.
An example will help illustrate the distinction between description and evaluation. Imagine a scenario in which two friends, Alice and Betty, decide to take a cross-country trip together. Imagine further that they agree from the outset that they want to treat each other fairly as traveling companions. In agreeing to this, they settle on an evaluative framework as a guide to their collective life, one in which they agree to rights and obligations that will facilitate their trip together. Among other things, each agrees to pay half the purchase price of the car theyâll drive. Because Alice is a good chef, she says sheâll cook meals on the burner theyâll use when they camp out. In turn, Betty agrees to clean up after meals. Alice says sheâll pitch their tent every evening; Betty agrees to take it down and fold it each morning.
The agreement reached underscores the possibility of realizing justice (needless to say, a modest kind, but nonetheless an important one, as anyone will attest whoâs taken a long trip with someone else) in the course of everyday life. Alice and Betty settle on a set of interlocking obligations. Betty has a right to a cooked meal every day; she has this right because Alice has assumed the obligation of serving as group chef. Alice has a right to clean dishes, a right that exists by virtue of Bettyâs agreement to maintain the silverware. Although the amount of work required to discharge each obligation may not be exactly similar, itâs roughly comparable, with the result that each person involved in the arrangement can operate according to a mental ledger that tracks the satisfaction of the mutual obligations that define their collective life.
This concern with score-keeping is inescapably important to any analysis of justice . When thinking about the fair distribution of rights and obligations, we focus not only on the rough comparability of different tasks, we also think in conditional termsâthat is, we think that if one person does what he/she is supposed to do, then the other should fulfill his/her portion of the social arrangement. The concept of reciprocity presupposes this kind of conditional calculation. In adopting it, someone doesnât endorse the possibility of bestowing unconditional benefits on others. Instead, he/she thinks in terms of a pattern of exchange, one in which ifâŠthen is monitored through reliance on a mental ledger of whatâs been given and received.
The Alice/Betty scenario is concerned with establishing a novel living arrangement. Because this is its focus, it doesnât deal with a key feature of everyday conductâthe fact that we are born into already-existing patterns of social interaction and so rarely have the opportunity to design them from the ground up. Does this mean that the evaluative framework already proposedâa framework that asks whether social arrangements are just by trying to identify the terms free and equal individuals would accept for engaging in communal lifeâis irrelevant? It certainly means that matters are far more complex once already-existing social relations are taken into account. Once we have to think about real-life conditions, weâre confronted with activities that almost certainly wouldnât be accepted as fair (racial discrimination, for example, gender bias, acts of fraud and self-dealing, acts of theft and violence) but that nonetheless persist in everyday life.
To note these features of the real world is not, however, to suggest that the concept of justice should be set aside. On the contrary, the components of everyday life just mentioned underscore the importance of using justice as an evaluative concept to assesses critically the way we live even when no formal agreement has been reached as to the terms of communal life. After all, when we talk about racism or gender bias, weâre concerned with behavior that violates rights. We rely on a contrast, in other words, between an evaluative standard (one that treats it as wrong to practice racial or gender-based discrimination) and a descriptive insight (one that notes the existence of such practices in the course of daily life). And we rely on this contrast even to criticize the law, for legal standards often fall below the requirements of justice, in which case the concept of justice can, and should, be deployed to criticize the law.
Itâs possible, of course, to avoid evaluation altogetherâpossible, in other words, to confine oneâs attention to the world as it is and so to disregard ought questions. To take this position, however, is to accept silently the presence of injustice. The more promising strategy is to use the concept of justice as a critical concept: to evaluate already-existing relations and so to think about how these can be modified in light of a framework that asks about the fair terms individuals would adopt for living together.1
Two steps need to be taken once the concept of justice is used to evaluate already-existing social relations. The first is concerned with a problem of identificationâwith identifying rights-claims any reasonable person would accept for conducting social life. The second is concerned with a problem of implementationâwith the steps that should be taken to enforce these claims (by adopting standards for responding fairly to violations of rights). The remainder of this chapter is devoted to questions of identification. The next is concerned with implementation.
Identifying Rights
Itâs easy enough to assert that someone has a right to x. How can such a claim be supported, though? How, in particular, can it be shown that a statement about a right to x isnât anything more than an expression of opinion? Rights and obligations arenât observable entities, after all. Theyâre evaluative labelsâlabels of such importance that their application gives rise to statements of condemnation (you violated a right, and your rights-violation amounts to a wrongful act) and even to punishment (furthermore, your act of wrongdoing merits a condemnatory deprivation), but theyâre labels nonetheless in that they donât involve anything that can be seen, felt, or heard.
Our question is thus: would a reasonable person agree that at least some conclusions about rights are sound despite the fact that they defy empirical observation? This question didnât arise in the Alice/Betty scenario: they agreed to the rights and obligations essential to their communal life and so could point to that agreement as the source of their communal obligations. In moving beyond that elementary scenario, we should consider one in which it may seem clear that a person has violated a right even though the actor didnât agree beforehand that his conduct was wrongful.
The scenario weâll consider works a modest variation on the familiar story of the bully and the 97-pound weakling. Imagine that Carl, a well-built man, and David, a frail one, have apartments whose front doors open on the same hallway in a multi-unit building. Imagine further that the building management has posted a sign saying Deposit all garbage in the receptacles contained in your floorâs recycling room, first separating your trash in the ways indicated by the signs over each receptacle. And imagine finally that David finds pretzel crumbs and other garbage lying around the hallway, discovers that Carl has been failing to honor managementâs instructions by throwing away his garbage in the proper manner, and is told by Carl when he points this out âYou want make something of it? If so, Iâll find a way to make a pretzel out of you.â
In reviewing this threat in his own mind, Carl might justify it on the ground that he never actually agreed to separate his garbage into recyclable lots. If pressed, he might further note that the legislature of his state never adopted a law requiring people sharing living space to follow the procedures established by his apartment building. And if pressed even further, he might note that the strong typically dominate the weakâand that, in any event, he never agreed to avoid threatening other peopleâs physical safety. He might argue, in other words, that, at most, thereâs only a moral obligation to honor the buildingâs rules and that, in any event, his behavior is consistent with centuries of practice since the strong have always dominated the weak.
For purposes of discussion, we can assume that every point Carl makes is descriptively soundâthat is, we can assume that the building management has a legal obligation to sort out garbage when placing it on the street but that no resident of the building has such an obligation within it and we can also assume that the strong have routinely used the resources at their command (sometimes sheer physical force, but sometimes networks of social relations, and sometimes accumulated financial power) to make those without similar resources bend to their will. Even if these points are descriptively sound, though, are they evaluatively defensible? And, if they are not, then why is this soâwhy, in other words, can someone in Davidâs position properly complain that he has a right (a just right, though not necessarily a legally enforceable one2) not to be threatened with physical violence for someoneâs failure to perform a basic task of communal life?
Itâs likely most people (othe...