7.4 Justice and Just Government

Justice has been a concern of philosophers at least since the days of Socrates, where we find it the chief concern in Plato’s dialogue Republic.  It also seems a concern of each of us at least since our days as a toddler, crying out to all who would hear “It’s not fair!”  There are many different theories of what justice is, some of which we will explore below.  But clearly, it is a political concern.  How shall we so arrange a State that it shall maximize justice?

What follows are some important steps in the philosophical conversation about Justice.

Justice as Merit: Plato

Justice is often defined as merit or getting what one deserves, one’s “just deserts.”  This merit or desert can be understood in both positive and negative ways.  If a person works ten hours for $25 per hour, then that person deserves to receive $250 from their employer.  If the employer refuses to pay the agreed amount, this is considered unjust.  If a person commits a crime against another, then the criminal is punished according to the laws governing such actions.  If the criminal is so punished, this is considered just and if the criminal is not so punished, this is considered unjust.  In American society, justice is often assumed to be defined as merit.  The American justice system is highly influenced by the concept of justice as merit.

In his dialogue Republic, Plato uses Socrates to argue for justice that covers both the just person and the just City State. Justice is a proper, harmonious relationship between the warring parts of the person or city… This applies both at the individual level and at the universal level.

A person’s soul has three parts – reason, spirit, and desire. Similarly, a city has three parts…  Plato lists three classes in his ideal society.

1. Producers or Workers: The laborers who make the goods and services in society.
2. Auxiliaries: Soldiers.
3. Guardians/Soldiers: Those who keep order in society and protect it from invaders. From them is chosen the Philosopher King/Queen.

Socrates held that true justice required the faculty of reason to govern over the spirit and desires or appetites.  So too, the Guardians must keep control of the Auxiliaries and the Producers.  He uses the parable of the chariot to illustrate his point: a chariot works as a whole because the two horses’ power is directed by the charioteer. Lovers of wisdom – philosophers, in one sense of the term – should rule because only they understand what is good. If one is ill, one goes to a medic rather than a farmer, because the medic is an expert in the subject of health. Similarly, one should trust one’s city to an expert in the subject of the good, not to a mere politician who tries to gain power by giving people what they want, rather than what’s good for them. Socrates uses the parable of the ship to illustrate this point: the unjust city is like a ship in the open ocean, crewed by a powerful but drunken captain (the common people), a group of untrustworthy advisors who try to manipulate the captain into giving them power over the ship’s course (the politicians), and a navigator (the philosopher) who is the only one who knows how to get the ship to port. For Socrates, the only way the ship will reach its destination – the good – is if the navigator takes charge.

A critique of Justice as Merit:  Michael Sandel

But do people always get what they deserve?  One challenge to a meritocratic theory of justice is the “problem of moral luck.”   In this video, consider how moral luck might play a part in how well or poorly people are able to take action to improve their own circumstances.

Moral Luck: Crash Course Philosophy #39

Or watch the video here.

Harvard philosopher Michael Sandel, in a very important work entitled The Tyranny of Meritocracy: What’s Become of the Common Good? (Farrar, Straus and Giroux, 2020) has argued compellingly that meritocracy is deleterious to the common good because it establishes a shaming system between the haves and the have-nots. Those born into wealth and power have lost the sense that they have been very lucky and have equated this luck with deservingness while looking down on those less fortunate.

RSA Minimate: The Tyranny of Merit | Michael Sandel

Or watch the video here.

Is it just, for example, that most of us were born into middle-class or poor families while the children of the wealthiest 1% do not, in most cases, work for their wealth but inherit it?  Certainly, America has many tales of young people starting out poor and working their way to fortune—Thomas Edison, Bill Gates, and Jeff Bezos, to name just a few.  Still, the instances of inherited wealth constitute a sizable portion of the country’s total wealth.  A report from the U.S. Department of Labor and the U.S. Bureau of Labor Statistics in 2010 estimated “that on average over the period from 1989 to 2007, 21 percent of American households at a given point of time received a wealth transfer and these accounted for 23 percent of their net worth. Over the lifetime, about 30 percent of households could expect to receive a wealth transfer and these would account for close to 40 percent of their net worth near time of death” (Wolff and Gittleman, “Inheritances and the Distribution of Wealth: Or Whatever Happened to the Great Inheritance Boom?”, 2010).

Strengths and Weaknesses of Justice as Merit

An advantage of defining justice as merit is that each person stands or falls on their own merit.  There is no appeal to race, creed, gender, class, or economic status.  If a person is skilled for a particular job, they are hired based on that merit alone and not because of any other factor outside of their control.  Would it not be unjust to allow people to be judged based solely on their physical characteristics or their religious beliefs?

A disadvantage of defining justice as merit is that people are born to their station in life through no merit of their own.  Philosophers refer to this as the problem of “moral luck.”  Sometimes injuries or medical disabilities occur through no merit or demerit of the recipient.  Is it not unjust to simply ignore the obvious advantages that some people are born with?  Would it not be better to “level the playing field” by giving those with fewer natural advantages a legal or social advantage to allow them the same consideration as those people with these advantages?

Utilitarian Justice

Justice can also be understood in terms of utilitarian ethics.  Democratic governments defend justice as the greatest good for the greatest number of people.   The majority decides what is just for everyone.

According to utilitarian thinkers including John Stuart Mill, justice is not as fundamental as we often think. Rather, it is derived from the more basic standard of rightness, consequentialism: what is right is what has the best consequences (usually measured by the total or average welfare caused). So, the proper principles of justice are those that tend to have the best consequences. These rules may turn out to be familiar ones such as keeping contracts; but equally, they may not, depending on the facts about real consequences. Either way, what is important is those consequences, and justice is important, if at all, only as derived from that fundamental standard. Mill tries to explain our mistaken belief that justice is overwhelmingly important by arguing that it derives from two natural human tendencies: our desire to retaliate against those who hurt us, or the feeling of self-defense and our ability to put ourselves imaginatively in another’s shoes, empathy. So, when we see someone harmed, we project ourselves into their situation and feel a desire to retaliate on their behalf. If this process is the source of our feelings about justice, that ought to undermine our confidence in them.

Strengths and Weaknesses of Utilitarian Justice

The advantage to defining justice according to utilitarianism is that justice will always be dictated by the greatest number of people in society.  Is it not best for a society to enhance and encourage what is best for most people?  Justice as utilitarianism seems to be truly democratic justice.

On the other hand, this type of justice embraces what some have called the “tyranny of the majority.”  Many actions that are currently considered atrocities and a breach of justice can be justified under a utilitarian definition of justice.  An extreme example could be seen in the antebellum South, where the majority white population held the minority blacks in slavery while arguing that the institution served the good of the many.

Utilitarian justice often ignores the rights of minorities.  The minority opinion is irrelevant.  People who fight against the majority are deemed unjust and minority arguments for rights are discounted.

Moreover, in this system justice becomes arbitrary, since the greatest good for the greatest number can change as the needs or desires of the greatest number of people changes

Justice as Fairness: Rawls

A popular and compelling 20th-century argument for justice was that offered by moral philosopher John Rawls.  Rawls (February 21, 1921 – November 24, 2002) was an American moral and political philosopher in the liberal tradition. Rawls received both the Schock Prize for Logic and Philosophy and the National Humanities Medal in 1999, the latter presented by President Bill Clinton, in recognition of how Rawls’s work “revived the disciplines of political and ethical philosophy with his argument that a society in which the most fortunate help the least fortunate is not only a moral society but a logical one” (Wikipedia, “John Rawls”).

Before we explore Rawls, consider this moral issue:

Poverty & Our Response to It: Crash Course Philosophy #44

 Or watch the video here

Rawls advocated a theory of Justice as Fairness.

In his A Theory of Justice (1971), John Rawls used a social contract argument to show that justice, and especially distributive justice, is a form of fairness: an impartial distribution of goods.  Distributive justice concerns how societies can allocate the benefits of society fairly and also distribute its costs/burdens in a just way.

There have been throughout history several theories about how to divide the benefits and burdens of society.

• We’ve already considered the concept of Justice as Desert or Deservingness. In terms of distributive justice, this theory argues that everyone’s outcomes should be based upon their inputs. Therefore, an individual who has invested a large amount of input (e.g., time, money, energy) into society should receive more in return than someone who has contributed very little. This is also known as Merit Justice or Deserving Distributive Justice
• Justice as Equality argues, as its name indicates, that everyone should divide benefits and burdens equally, with no distinction between the “haves” and the “have nots.” Regardless of their inputs and abilities, all group members should be given an equal share. Thus, someone who contributes 20% to the group’s resources should receive as much as someone who contributes 60%.  This is also known as Egalitarian Justice.
• Justice as Power advocates that to the strongest go the spoils, that those with power take what they want from society. Those with more authority, status, or control over the group should receive more than those in lower-level positions. This is Distributive Justice based upon Social Status/Prestige/Aristocracy.
• Justice based on Need argues the opposite, that it’s the weakest in society who should be provided with resources needed to meet those needs at the expense of other members. These individuals should be given more resources than those who already possess them, regardless of their input. This is also known as Needs Based Distributive Justice.
• Justice as Responsibility argues that those who have the most should share their resources with those who have less. This is also known as Social Justice or Social Distributive Justice.
• Justice as Equal Opportunity advocates that society spend resources to create opportunities for those in Need to help them improve their status. Society should be arranged in such a way as to provide an equal chance for everyone to improve and to guarantee there are no special privileges given to special interest groups.  This is the core of John Rawls’ Justice as Fairness theory of Distributive Justice.

The following essay from Ben Davies lays out the key ideas of Rawls’ theory of justice.

Excerpt From Ben Davies’, John Rawls and the ‘Veil of Ignorance

In what follows, consider:

John Rawls’s Veil of Ignorance is probably one of the most influential philosophical ideas of the 20th century. The Veil of Ignorance is a way of working out the basic institutions and structures of a just society. According to Rawls, working out what justice requires demands that we think as if we are building society from the ground up, in a way that everyone who is reasonable can accept. We, therefore, need to imagine ourselves in a situation before any particular society exists; Rawls calls this situation the Original Position. To be clear, Rawls does not think we can actually return to this original position, or even that it ever existed. It is a purely hypothetical idea: our job in thinking about justice is to imagine that we are designing a society from scratch. The idea is that social justice will be whatever reasonable people would agree to in such a situation. We can then start thinking about how to make our actual society look more like the ideal picture we have imagined.

Of course, if we were designing a society in the Original Position, people might try to ensure that it works in their favor. The process is thus vulnerable to biases, disagreements, and the potential for majority groups to gang up on minority groups. Rawls’s solution to this problem comes in two parts. Firstly, he makes some assumptions about the people designing their own society. People in the Original Position are assumed to be free and equal, and to have certain motivations: they want to do well for themselves, but they are prepared to adhere to reasonable terms of cooperation, so long as others do too. Rawls also simplifies his discussion by imagining that people in the Original Position do not have total freedom to design society as they see fit. Rather, they must choose from a menu of views taken from traditional Western philosophy on what justice involves.

The second part of the solution is the Veil of Ignorance. This involves a further leap of imagination. When we are thinking about justice, Rawls suggests that we imagine that we do not know many of the facts – both about ourselves and the society we currently live in – that typically influence our thinking in biased ways. By intentionally ignoring these facts, Rawls hoped that we would be able to avoid the biases that might otherwise come into a group decision. For instance, if I were helping to design a society, I might be tempted to try to make sure that society is set up to benefit philosophers, men, or people who love science fiction novels. But if I don’t know any of those facts about myself, I can’t be tempted. The Veil is meant to ensure that people’s concern for their personal benefit could translate into a set of arrangements that were fair for everyone, assuming that they had to stick to those choices once the Veil of Ignorance ‘lifts’, and they are given full information again.

One set of facts hidden from you behind the Veil are what we might call ‘demographic’ facts. You do not know your gender, race, wealth, or facts about your personal strengths and weaknesses, such as their intelligence or physical prowess. Rawls thought these facts are morally arbitrary: individuals do not earn or deserve these features, but simply have them by luck. As such, they do not deserve any benefits or harms that come from them. By removing knowledge of the natural inequalities that give people unfair advantages, it becomes irrational to choose principles that discriminate against any particular group. The Veil also hides facts about society. You do not know anything other than general facts about human life, and in particular you do not how their society is organized. Finally, the Veil hides facts about your “view of the good”: your values, preferences about how your own life should go, and specific moral and political beliefs. Rawls was a political liberal. That meant, among other things, that he thought the state should be neutral between different views about value. So, Rawls isn’t afraid to make several significant assumptions about the people involved in making decisions behind the Veil. Some of his assumptions aim to turn the conflicts that arise between self-interested people into a fair decision procedure. As we’ll see, however, others might be more fairly criticized as unreasonably narrowing the possible outcomes that people can reach behind the Veil….

Imagine that you find yourself behind the Veil of Ignorance. You might want to make sure that your life will go well. If you had to design a good life for yourself, you’d go for the specific things you care about. But behind the Veil you don’t know those specifics; you only know things that generally make people’s lives go well. Rawls calls these ‘Primary Goods’. They include things like money and other resources; basic rights and freedoms; and finally, the “social bases of self-respect”: the things you need to feel like an equal member of society.

In Rawls’s view, a central challenge behind the Veil is the lack of probabilities available. If you knew that your society was 90% Catholic, you could set things up so that the rewards associated with being Catholic were much higher. That would be personally rational, since you are very likely to end up in the better-off group. The Veil prevents this type of reasoning because it hides the information. In the complete absence of probabilities, Rawls thinks you should play it safe and maximize the minimum you could get (a policy he calls Maximin). Translated into a society, that means that we should ensure that the worst-off people in society do as well as possible.

Rawls suggests two principles will emerge from discussions behind the Veil:

First Principle: Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, compatible with the same liberties for all;

Second Principle: Social and economic inequalities must be:

1. Attached to offices and positions open to all under fair equality of opportunity;
2. To the greatest benefit of the least-advantaged members of society (the difference principle).

Rawls opts for equality of basic liberties in the First Principle because he thinks this is essential for seeing yourself as a moral equal in society. For other Primary Goods, though, equality is less important. By allowing some inequality, we could make life better for everyone. If we attach higher salaries to certain jobs, they may attract the hardest-working people, producing greater economic benefits for everyone.

The two parts of Rawls’s second principle of justice set limits on when inequalities are allowed. Fair equality of opportunity says that positions which bring unequal payoffs must be open to people of equal talents and equal willingness to use them on an equal basis. If two people are just as capable of doing a job, and just as hardworking and willing to apply themselves, neither should have a greater chance of securing the position because they are wealthier, or because of their race or religion. Of course, we might wonder (and Rawls does not give a clear answer about this) when we are supposed to judge whether two people are equally hardworking and talented. The talents you choose to develop, and the amount of effort you put in, are heavily affected by education; so it might seem unfair to judge people if they have had very different educational experiences. Rawls’s argument therefore seems to support ensuring broad equality of education, encouraging people to find and develop their talents to the fullest, even if this isn’t a conclusion he explicitly draws.

Finally, the Difference Principle sets a further restriction on inequalities. Even if a particular inequality does not affect equality of opportunities, the Difference Principle tells us that it must be beneficial for the very worst off. For instance, it might be that by allowing inequalities, we motivate people to work harder, generating more Primary Goods overall. If these then benefit the worst off in society, making them better off than they would have been in a more equal distribution, the Difference Principle will allow that inequality.

As with any influential philosopher, Rawls has been the subject of much criticism and disagreement. In this final section, we consider three objections to Rawls’s reasoning around the Veil of Ignorance.  We have already noted that Rawls explicitly makes several assumptions that shape the nature of the discussion behind the Veil of Ignorance, and the outcomes that are likely to come out of it. However, one might challenge Rawls by disputing the fairness or intuitiveness of one or more of his assumptions.

Probably the most famous example of this comes from Robert Nozick.   Recall that Rawls’s principles establish rules to govern the institutions and principles that distribute goods. He thinks that if we work out what those institutions would look like in a perfectly just society, using the Veil of Ignorance, we can then start to move our current society in that direction. Nozick notes that in reality, most goods are already owned. Rawls’s view establishes a pattern that looks fair; but Nozick argues that we also need to look at the history of how various goods came to be owned. In some cases, we find that the person who owns those goods worked for them. In other cases, the individual will have inherited those goods, but they will have come from an ancestor who worked for them. In both cases, we cannot simply redistribute these goods to fit our pattern, because people have rights.

In Nozick’s view, once you have ownership rights, you can do pretty much what you want with it, so long as you do not violate anyone else’s rights. The fact that taking money you earned would benefit someone else cannot be the basis for government forcibly taking your money. One possible basis for this is the idea of ‘self-ownership’. Nozick thinks we will all agree that it would be wrong to force you to work if you didn’t want to. The reason for this is that your body is owned by you and nobody else. That principle extends, Nozick says, to what you do with your body: your labor. If you make something, or work for money, that thing is yours and nobody else’s. Just as the state has no right to force you to do things with your body that you don’t want to do, it also has no right to force you to do things with your other property, like giving it away to the less fortunate. That might be a nice thing to do, but it isn’t something others can force you to do….

A second criticism also concerns the fact that, behind the Veil, various facts are hidden from you. Rather than worrying about the substantive conclusions Rawls reaches, as Nozick does, this criticism worries about the very coherence of reasoned discussion behind the Veil of Ignorance.

Rawls’s Veil of Ignorance is an example of a theory of justice that has universal aspirations. Since one of the facts that is hidden by the veil is the nature of the society you live in, we may assume that the resulting principles are supposed to be applicable in all societies, though this is a view that Rawls attempted to reject in later work. In addition, people behind the Veil are supposed to come up with a view of how society should be structured while knowing almost nothing about themselves, and their lives.

One broad group who criticize these ideas are the so-called ‘communitarian’ philosophers, which include Charles Taylor, Michael Walzer, and Alasdair MacIntyre. While their views differ, they tend to agree that what justice requires cannot be decided abstractly but must instead be informed by local considerations and culture. Communitarians also suggest that Rawls’s conception of the individuals behind the Veil of Ignorance is problematic because they have so few defining features. Even if Rawls is right that people behind the Veil would agree on his two principles, communitarians think that the hypothetical agreement ignores much that is important.

Individuals behind the Veil are assumed to be largely self-interested and to have a strong interest in retaining the ability to abandon their current social roles and pursuits and take up new ones. According to the communitarians, however, we are born with existing social connections to particular people, cultures, and social roles. Whereas Rawls emphasizes our active engagement in shaping our own lives, communitarians want to remind us that our lives are unavoidably shaped by existing attachments that we do not choose. For instance, if you are born into a particular religious community, you can of course still renounce that religion. But your life will still be shaped by the fact that you are a member, or former member, of that community. It is worth noting, though, that this accusation is somewhat unfair to Rawls. While it is true that individuals behind the Veil do not know about their defining features, Rawls does not think that real people are like this. His interest is in trying to formulate a neutral way to decide between competing groups.

Certainly, it is a plausible worry that what justice requires may depend in part on the values of the society in question. As a liberal, Rawls is particularly worried about protecting individuals whose preferred lives go against the grain of the society in which they find themselves. Communitarians will object that the Veil of Ignorance goes beyond this protection and rules out the possibility of different ideas of justice, informed by local values. Perhaps we should acknowledge that people behind the Veil of Ignorance would recognize the possibility that their society will turn out to be strongly attached to a particular set of values. A rational person behind the Veil might want to try to find a way to give a special place to such values while protecting dissenters.

Our final challenge also concerns the real-world applicability of Rawls’s principles. In brief, the claim from scholars of race and of gender is that Rawls’s abstract Veil of Ignorance ends up ignoring much that is relevant to justice.

The central criticism we consider here concerns the motivation of Rawls’s overall project. Rawls’s aim is to outline a theory of ‘ideal’ justice, or what a perfectly just society would look like. This ignores, purposefully, the many injustices that have happened and continue to happen, including the fact that most societies continue to exhibit racism, sexism, and other forms of discrimination.  As critics argue, we then get at best an incomplete theory, which does not tell us how to fix existing injustice or, as it is sometimes called, ‘non-ideal’ justice (an issue that Rawls himself describes as a “pressing and urgent matter”). For instance, people disagree about the idea of ‘reparations’ for racial slavery that shaped the United States. Yet because this is an issue of non-ideal justice (how should we respond to the fact that the United States and many of its citizens failed to comply with the basic requirements of justice?), the idealization of the Veil of Ignorance seems to give us no way to determine this important question.

This maps onto a more general question in political philosophy: if a theory of justice does not tell us how to act in our actual societies, does it have any value? While some argue that Rawls’s work can be used to draw concrete conclusions about issues such as racial profiling and affirmative action, critics who reject this view may also argue that a theory of justice that is concerned only with the ideal ignores the most pressing issues of the day. In Rawls’s case, we may wonder whether we can accommodate such concerns by making small changes to his assumptions, or whether more radical changes (or even abandonment of the theory) are required.

The three criticisms outlined above all take issue, in different ways, with Rawls’s idealization away from the real world. Much of the value of Rawls’s work will depend on whether it is useful to construct ideal views of justice before, or at the same time as, thinking about the messier real world. Even a pessimistic conclusion on this issue, though, should recognize the following insight from Rawls: that what seems just or fair or right to any person is influenced not just by our background but by our own selfish interests. Even if the details face problems, Rawls’s Veil of Ignorance shows us that it can be valuable to imagine things from opposing points of view. While the criticisms from communitarians, scholars of race, and feminist scholars demonstrate the importance of considering the concrete features of our societies and lives, the basic idea of abstracting away from potential biases is an important one.

Nonetheless, this conclusion is consistent with recognizing two mistakes in making use of the Veil of Ignorance. Firstly, recognizing the importance of abstraction should not come at the cost of considering the real, concrete impact of policies we adopt, or of the social and historical context they are part of. Much political philosophy, at least in the USA and UK, can be criticized for neglecting these latter issues. Secondly, acknowledging the importance of the Veil of Ignorance does not mean that Rawls, and later philosophers, are right to have established an order of priority, where we first abstractly establish a view of ideal justice, and only then move on to non-ideal justice. It may be more productive to consider issues of justice from both the kind of abstracted view represented by the Veil of Ignorance and from the more concrete view advocated by its critics (Davies, “John Rawls and the ‘Veil of Ignorance.’” in Levin, ed., Introduction to Ethics: An Open Educational Resource, 2019).

Strengths and Weaknesses of Justice as Fairness

Rawls addresses justice on the basis of fairness and says it can be achieved when every individual has access to the services they need. Importantly, he stresses that justice can be achieved not by absolute equity but by fairness and operating from the two principles he sets forth.

The thought experiment of the original position and the veil of ignorance is helpful in helping us detach from our current position in society and look at justice more objectively.

Rawls has taken and combined many of the positive aspects of earlier theories like rights and merit and utility while avoiding some of their problems.

The chief criticism of this theory is its abstractness.  Many think the theory looks good on paper but would be very difficult to implement in the real world.

Works Cited

Crash Course. “Moral Luck: Crash Course Philosophy #39.” YouTube, 12 Dec. 2016, https://youtu.be/DpDSPVv8lUE.

Crash Course. “Poverty & Our Response To It: Crash Course Philosophy #44.” YouTube, 30 Jan. 2017, https://youtu.be/D5sknLy7Smo.

RSA Minimate. “RSA Minimate: The Tyranny of Merit: Michael Sandel.” YouTube, 24 May 2019, https://youtu.be/dRolGQ3QJPE.

Wolff, Edward N., and Maury Gittleman. “Inheritances and the Distribution of Wealth Or Whatever Happened to the Great Inheritance Boom?” BLS Working Papers, Jan. 2011, https://www.bls.gov/osmr/research-papers/2011/pdf/ec110030.pdf.