Bigg Elephant

When we speak of justice as a virtue, we are usually referring to a trait of individuals, even if we conceive the justice of individuals as having some (grounding) reference to social justice. But Rawls and others regard justice as “the first virtue of social institutions” (1971, p. 3), so “justice as a virtue” is actually ambiguous as between individual and social applications.

Individual justice seems ambiguous in regard to scope. Plato in the Republic treats justice as an overarching virtue of individuals (and of societies), meaning that almost every issue he (or we) would regard as ethical comes in under the notion of justice (dikaosoune). But in modern usages justice covers only part of individual morality, and we don’t readily think of someone as unjust if they lie or neglect their children–other epithets more readily spring to mind. What individual justice most naturally refers to are moral issues having to do with goods or property.

Plato believed that just individual is someone whose soul is guided by a vision of the Good, someone in whom reason governs passion and ambition through such a vision. When, but only when, this is the case, is the soul harmonious, strong, beautiful, and healthy, and individual justice precisely consists in such a state of the soul. Actions are then just if they sustain or are consonant with such harmony.

Such a conception of individual justice is virtue ethical because it ties justice (acting justly) to an internal state of the person rather than to (adherence to) social norms or to good consequences; but Plato’s view is also quite radical because it at least initially leaves it an open question whether the just individual refrains from such socially proscribed actions as lying, killing, and stealing. Plato eventually seeks to show that someone with a healthy, harmonious soul wouldn’t lie, kill, or steal, but most commentators consider his argument to that effect to be highly deficient.

Aristotle is generally regarded as a virtue ethicist par excellence, but his account of justice as a virtue is less purely virtue ethical than Plato’s because it anchors individual justice in situational factors that are largely external to the just individual. Situations and communities are just, according to Aristotle, when individuals receive benefits according to their merits. Aristotle treats the virtue of individual justice as a matter of being disposed to properly respect and promote just social arrangements. An individual who seeks more than her fair share of various goods has the vice of greediness (pleonexia), and a just individual is one who has rational insight into her own merits in various situations and who habitually (and without having to make heroic efforts to control contrary impulses) takes no more than what she merits, no more than her fair share of good things. Since Aristotle treats all individual virtues as (learned dispositions) lying in a mean between extremes (courage, e. g., is between cowardice and foolhardiness), he also doesn’t think it is virtuous to take less than one’s fair share of things.

However (and as William Frankena once noted), this account of justice seems circular or ungrounded, because if one’s fair share depends on how virtuous one is, the issue of what one’s fair share is cannot be decided independently of whether one is being virtuous in actually taking some particular share and the latter issue, in turn, depends for Aristotle on one’s being able to know independently what one’s fair share is.

Both Plato and Aristotle were rationalists as regards both human knowledge and moral reasons, and what they say about the virtue of justice clearly reflects the commitment to rationalism. Much subsequent thinking about justice (especially in the Middle Ages) was influenced by Plato and Aristotle and likewise emphasized the role of reason both in perceiving what is just and in allowing us to act justly rather than give in to contrary impulses or desires. But to the extent Christian writers allied themselves with Plato and Aristotle, they were downplaying another central element in Christian thought and morality, the emphasis on agapic love. Such love seems to be a matter of motivationally active feeling rather than of being rational, and some writers on morality (eventually) allowed this side of Christianity to have a major influence on what they had to say about virtue.

In particular, the “moral sentimentalists” Hutcheson and Hume treated morality as grounded in something other than reason, and the influence of Christian ideas and ideals of agapic love on Hutcheson (at least) is well documented. For Hutcheson, universal (i.e., impartial) benevolence is the highest and best of human motives, but we know this, not through reason, but through a moral sense (or sensitivity). Also, according to Hutcheson, the individual virtue of justice (ultimately) consists in being motivated by universal benevolence, and he explicitly denies that benevolence can ever conflict with true justice.

Hume saw (or believed he saw), however, that individual justice at least sometimes conflicts with what benevolence would motivate us to do. He is as much a sentimentalist as Hutcheson, believing that judgments about virtue and rightness depend on our capacity for sympathy rather than on some form of reason (or on a distinct moral sense) and holding that being virtuous depends on feelings and feelingful motives like benevolence and sympathy rather than on reason. But he thinks that the sentimentalist owes us an account of how a sense of justice that is sometimes opposed to benevolence and sympathy can nonetheless develop out of such motives. Motives like benevolence, curiosity, and prudence Hume calls natural in the twofold sense that they exist apart from social convention(s) and that they do not require explicitly ethical thinking (or conscience) or in order to issue in action. But the virtue of justice is not natural, but rather should be considered “artificial,” according to Hume, because it depends for its existence on human conventions and artifices and because the primary motive to justice is a sense of justice (or of duty).

Now Hume thinks of the individual virtue of justice quite narrowly as comprising a certain kind of respect for (other people’s) property. The Aristotelian notion is that justice consists in everyone getting his due, what he merits.

In primitive or simple societies, there may always be reasons of prudence to act justly with respect to the property of others: violations of justice are always likely to be detected by others and to lead to consequences one would prefer to avoid. In such circumstances honesty (a term Hume tends to use narrowly as synonymous with “justice”) really is the best policy. Furthermore, within the narrow confines of a small group, personal affection and benevolent concern for those one knows and lives with may lead one to refrain from violations of their property. But in a larger (and more advanced) society, things will be different.

In large-scale modern societies (of the sort Hume lived in) we may not know our neighbours, much less all those people our actions might affect, and the people whose property justice calls on us to respect include a vast majority who don’t know us either. Under conditions of such relative anonymity and complexity, the identity of a thief may be much more difficult to ascertain. More importantly, perhaps, the conditions of a modern society leave us without strong ties of affection to many of the people we interact with or may affect by our actions, and Hume thinks that normal humanity or humane benevolence isn’t a strong enough motive to get us to refrain from a theft that would greatly benefit ourselves or our families (those we do have strong affections toward).

A sense of duty or conscience is for Hume absolutely essential to understanding the virtue and obligation of justice/honesty. Hume seeks to explain moral judgment and a sense of duty or conscientiousness based in such judgment in terms of the same mechanisms of sympathy that operate within and through the natural virtues. However, we tend to be more sympathetic with those near and dear to us, and moral judgment seeks or presupposes some sort of impartiality regarding those affected by or engaging in actions. Hume makes it clear that he is (what we would call) a virtue ethicist. He says that the moral status of an action depends entirely on the goodness or badness of the motive that lies behind it, so that, e. g., it is only because certain helpful actions were intended to be helpful (were motivated by the natural virtue of benevolence) that we morally approve of them or judge them to be right and good. However, it is difficult to apply this virtue-ethical assumption to the artificial virtues, because the good motive operative in their instance is the conscientious desire to do one’s duty or what is right or obligatory.

Subsequent ethical thinkers think that justice cannot be based in sentiment but requires a more intellectually constructive rational (ist) basis. Rawls’s positive view of justice is concerned primarily with the justice of institutions or (what he calls) the “basic structure” of society: justice as an individual virtue is derivative from justice as a social virtue defined via certain principles of justice. Rawls deliberately invokes Kantian rationalism (or anti-sentimentalism) in explaining the intellectual or theoretical motivation those principles stress (equality of) basic liberties and opportunities for self-advancement over considerations of social welfare.

When Rawls he explains how individuals (within a just society) develop a sense and/or the virtue of justice, he invokes the work of Piaget, who saw moral development as akin to the other sorts of development he so famously studied. Piaget treats moral development, therefore, as principally involving increasing cognitive sophistication. More particularly, Piaget sees that sophistication as a matter of taking more and more general or universal views of moral issues, and the Kantian and rationalist idea that morality rests on and can be justified in terms of considerations of universality (if it is right for me, it is right for everyone similarly situated) or universalizability (could I will this to be a rule governing everyone’s actions?) seems to underlie or to be presupposed in much that Piaget says about moral development. Piaget, he stresses the need for a sufficiently general appreciation and rational understanding of social relations as the grounding basis of a sense of duty or of justice.

Educational psychologist Lawrence Kohlberg was working out a Piaget-inspired conception of moral development that postulated six stages of human moral development. Kohlberg claimed that the highest stage of such development involves a concern for justice and human rights based on universal principles, and he relegated sheer concern for relationships and for individual human well-being to lower stages of the process. Moreover, he saw the ordering of the different stages in Piagetian fashion as basically reflecting differences in rational understanding: those whose moral thinking involved the invoking of universal principles of justice and rights were said to show a more advanced cognitive development than those whose moral thought appeals primarily to the importance of relationships and of human well-being or suffering.

In her 1982 book In a Different Voice: Psychological Theory and Women’s Development, Carol Gilligan responded to Kohlberg’s views by questioning whether a theory of moral development based solely on a sample of males could reasonably be used to draw conclusions Gilligan argued that her own studies of women’s development indicated that the moral development of girls and women proceeds and ends in a different fashion from that of boys and men, In particular, Gilligan claimed that women tend to think morally in terms of connection to others (relationships) and in terms of caring about (responsibility for) those with whom they are connected; men, by contrast and in line with Kohlberg’s studies, tend to think more in terms of general principles of justice and of individual rights against (or individual autonomy from) other people.

Gilligan relied upon, but others have pointed out that the idea of a “different voice” need not be tied to specific assumptions about differences between the sexes. The voice of justice and principle represents a different style of moral thinking (and of an overall moral life) from that of caring for and connection with others, and later writers (notably Nel Noddings, but also Gilligan herself in later work) have tried to elaborate what a morality (moral life) based in caring would be like and also to show that such a morality may be superior to that embodied in traditional thinking about justice and rights and universal (izable) moral principles.

The primary fulcrum for articulation of any ethic of care or caring seems to lie in an ideal that stresses connection over separateness. The Kantian emphasis on the autonomy of the moral person and the Rawlsian/contractarian assumption of separate individuals coming together to forge a social contract see us a basically separate from others, whereas an ideal of caring concern for others sees our (initial) actual historical and personal connections with others as the basis for a positive and caring response to such connection.

In addition, an ethic of justice and rights tells us to regulate our actions or lives in accordance with certain general moral principles (or explicitly moral insights), whereas the ethic of care stresses the good of a concern for the welfare of others that is unmediated by principles, rules, or judgments that tell us that we ought to be concerned about their welfare. In an ethic of care, therefore, caring is treated as a natural virtue in Hume’s sense, but this further highlights the way in which such an ethic involves us in connection with, rather than separateness from, other people. If we are concerned about others on the basis of a conscientious desire to do our duty or adhere to certain moral principles, then our concern for them is mediated by moral thinking, and someone, therefore, who cares about the welfare of others without having to rely on or be guided by explicit moral principles (or thinking) is more connected with those others than someone who acts only on the basis of such mediating principles (or thought). So the ethic of care or caring stresses connection with others both in what it says about the normative basis of morality and in what it says about the ways in which moral goodness shows itself within a morally good life.

As I indicated above, defenders of an ethic of care or caring have increasingly come to view caring as grounding (offering a normative basis for) morality as a whole. That means that ideas about justice and rights either have no validity or can actually be reinterpreted and given an arguably firmer justification in terms of (what we originally regarded as the opposed notion of) caring. But it is difficult to believe that morality can properly or plausibly be confined to intimate relations of caring. For better or worse, we have to learn to live together in larger social units, and we cannot be intimate or even acquainted with every human being whose actions and fate are morally significant for us. So an ethic of caring that seeks to account for individual and social morality generally needs to say something in its own voice about social and international justice and about how given individuals can realize the virtue of justice.

Normal human caring isn’t impartial (in the manner of “universal benevolence”), because it is easier to empathize with those near and dear to us, i.e., those with whom we share thoughts, lives, roots, or familial (or ethnic or national) traditions. But recent psychological studies of empathy and its relation to altruism indicate that we also tend to empathize more with those whose problems are immediate for us.

The concept of retributive justice has been used in a variety of ways, but it is best understood as that form of justice committed to the following three principles: (1) that those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment; (2) that it is intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives them the punishment they deserve; and (3) that it is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers. To respond to these challenges, retributive justice must ultimately be justified in a larger moral context that shows that it is plausibly grounded in, or at least connected to, other, deeply held moral principles. Only in this way should its intuitive appeal be regarded, in reflective equilibrium, as morally sound.

Crime is not the only legal basis for meeting out punishment. Torts too can serve that function. Contemporary tort law has mostly shed the root meaning of the word, which derives from the Latin tortum, meaning “wrong” or “injustice”. Tortfeasors are generally treated not so much as wrongdoers as harm causers, who simply have a duty to make their victims whole. But damages for intentional torts sometimes include punitive damages, which carry all the marks of punishment, though the procedural route to getting them is vastly different from that of criminal punishment (see Coleman & Mendlow 2010).

The paradigmatic wrong for which punishment seems appropriate is an intentional or knowing violation of the important rights of another. The Latin root of retribution is re + tribuo, which means “I pay back”. One way to understand the notion of paying back is that it concerns paying debts that are owed. This understanding connects to the commonly shared retributive thought that a criminal who has been appropriately punished has “paid his debt to society.” Another meaning of payback is concerned not with paying a debt but with giving wrongdoers a response in kind. This is the Biblical idea of “an eye for an eye, a tooth for a tooth” (Exodus 21: 23–25; Leviticus 24:17–20). Kant also endorses, in a somewhat different way, this notion of punishment. Invoking the principle of equality for punishment, Kant writes: “whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself” (1797: 141). It is commonly said that the difference between utilitarian and retributive theories of punishment is that the former is prospective, looking to the good that punishment may accomplish, while the latter is retrospective, seeking to do justice for what a wrongdoer has done.

Retributivism has also often been conflated with revenge or the desire for vengeance. But the two concepts should not be confused. Robert Nozick drew five distinctions between the two, including that revenge is personal but retribution is not, and that:

“[r]evenge involves a particular emotional tone, pleasure in the suffering of another, while retribution either need involve no emotional tone, or involves another one, namely, pleasure at justice being done.” (1981: 367)

Arguably the most popular theoretical framework for justifying retributivism in the past fifty years or so has been Herbert Morris’s (1968) appeal to fairness. The idea is that it is to our mutual benefit to live in society, and that to be in society, we have to accept certain limits on our behaviour.

“If a person fails to exercise self-restraint even though he might have… she renounces a burden which others have voluntarily assumed and thus gains an advantage which others, who have restrained themselves, do not possess.” (ibid: 33)

An alternative interpretation of Morris’s idea is that the relevant benefit is the opportunity to live in a relatively secure state, and the wrong is not the gaining of an extra benefit but the failure to accept the burdens that, collectively, make that benefit possible.

“Punishment then removes the benefit that the wrongdoer cannot fairly lay claim to, having shirked the burden that it was her due to carry.” (Westen)

Jean Hampton tried to improve upon the unfair advantage theory by focusing on the idea that what wrongdoers (at least those who have victims) do is an affront to the victim, not just to the whole community. Her view is that punishment must somehow annul this affront. As she puts it:

“If I have value equal to that of my assailant, then that must be made manifest after I have been victimized. By victimizing me, the wrongdoer has declared himself elevated with respect to me, acting as a superior who is permitted to use me for his purposes. A false moral claim has been made… The retributivist demands that the false claim be corrected. The lord must be humbled to show that he isn’t the lord of the victim. … [R]etributive punishment is the defeat of the wrongdoer at the hands of the victim (either directly or indirectly through an agent of the victim’s, e.g., the state) that symbolizes the correct relative value of wrongdoer and victim. It is a symbol that is conceptually required to reaffirm a victim’s equal worth in the face of a challenge to it. (Murphy and Hampton 1988: 125–126)

Retributive justice can be applied, if (a) there is utility in threatening people with punishment if they choose to do wrong, (b) people have a fair chance to avoid punishment by choosing not to do wrong, and (c) those who choose to do wrong deserve punishment within some institutional framework. (Summarised from the Stanford Encyclopedia of Philosophy).