"To my mind it is fundamental to our society to see that powers are not abused or misused. If they come into conflict with freedom of an individual or with any other of our fundamental freedoms, then it is the province of the Judge to hold the balance between the competing interests." - Lord Denning
Justice theory is one subsidiary of philosophy that never really suffers a bad century.
Back in Homeric times, life was simpler. Justice largely meant personal vengeance. Complications began when Plato famously pinned on Thrasymachus the view that justice is simply the will of the stronger, and on Glaucon and Callicles the idea that justice is conventional. Plato argued, through his familiar Socratic ventriloquy, that justice is divine, an ideal to which human justice can only haltingly aspire. Aristotle then introduced a formal criterion of justice that still wins the greatest agreement, perhaps because it's merely formal: Treat equals equally and unequals unequally.
From then on, follow the history of philosophers' sentences that begin "Justice is … " on and you hit so many diverse endings you wonder whether anyone, including the lady in the blindfold, knows what justice is.
To Aquinas, it's "a certain rectitude of mind whereby a man does what he ought to do in the circumstances confronting him." To Hume, it's "nothing but an artificial invention." To Sir Edward Coke, it's "the daughter of the law, for the law bringeth her forth." To 20th-century American jurist Learned Hand, it's "the tolerable accommodation of the conflicting interests of society." Do a survey, and about the only thinker who invites instant agreement is Belgian philosopher of law Chaim Perelman. According to Perelman, justice is simply "a confused concept."
One reason theories of justice abound is the range of the concept, applied to decisions, people, procedures, laws, actions, events. Justice is usually considered a positive thing, yet some rank it below mercy. It's divine for some, purely human for others. It's supposedly majestic, yet many complain of its quotidian banality and everyday scarcity. Recall the old lawyer's joke:
Petitioner: "Justice, justice, I demand justice!"
Judge: "Silence or I'll have you removed! This is a court of law!"
When Rawls declared justice "the first virtue of social institutions, as truth is of systems of thought," and began his painstaking probe of the conditions of just institutions, he re-established a modern tradition dating back to Hobbes: using social-contract theory to articulate ideal forms of social justice, sometimes in quasi-syllogistic form. But there was also a longstanding, skeptical, antisystematic tradition in justice theory.
Solomon wrote in A Passion for Justice that justice is "a complex set of passions to be cultivated, not an abstract set of principles to be formulated. … Justice begins with compassion and caring, not principles or opinions, but it also involves, right from the start, such 'negative' emotions as envy, jealousy, indignation, anger, and resentment, a keen sense of having been personally cheated or neglected, and the desire to get even." In time, suggested Solomon, "the sense of justice emerges as a generalization and, eventually, a rationalization of a personal sense of injustice."
Might our concept of justice arise when society's normal moral inertia, the tendency to accept traditions and status quo ethical procedures without challenge, is itself challenged?
Economist and philosopher, Amartya Sen inclines to that view. He begins An Idea of Justice by quoting Pip in Charles Dickens's Great Expectations:
"In the little world in which children have their existence, there is nothing so finely perceived and finely felt, as injustice." Sen adds, "The identification of redressable injustice is not only what animates us to think about justice and injustice, it is also central … to the theory of justice."
"Justice is ultimately connected with the way people's lives go, and not merely with the nature of institutions surrounding them." Two concepts from early Indian jurisprudence, niti (strict organizational and behavioral rules of justice) and nyaya (the larger picture of how such rules affect ordinary lives), provide a better prism for justice than Rawls's obsession with the characterization of just institutions. Indeed, Sen writes in a killer sum-up:
"If a theory of justice is to guide reasoned choice of policies, strategies, or institutions, then the identification of fully just social arrangements is neither necessary nor sufficient."
It was Solomon, in A Passion for Justice, who voiced the problem that hangs over ostensibly rigorous justice theory, which Sen plainly finds unconvincing yet never quite denounces. Speaking of the enormous technical literature spawned by Rawls, Nozick, and their acolytes, Solomon wrote:
"The positions have been drawn, defined, refined, and redefined again. The qualifications have been qualified, the objections answered and answered again with more objections, and the ramifications further ramified. … But the hope for a single, neutral, rational position has been thwarted every time." Solomon complained that justice theory had "become so specialized and so academic and so utterly unreadable that it has become just another intellectual puzzle, a conceptual Gordian knot awaiting its academic Alexander."
Will Amartya Sen be that Alexander? In repeatedly bringing back into the discussion Adam Smith's Theory of Moral Sentiments, Sen signals the need for justice theory to reconnect to realistic human psychology, not the phony formal rationalism that infects modern economics or the for-sake-of-argument altruism that anchors Rawls's project. (In A Theory of Justice, Rawls writes that in his well-ordered society, "Everyone is presumed to act justly.") By declaring his desire "to address questions of enhancing justice and removing injustice, rather than to offer resolutions of questions about the nature of perfect justice," Sen sinks a knife into the heart of the latter utopian program.
On the other hand, Sen's own understanding of his aim in The Idea of Justice hardly dismisses formal resources or careful reasoning. He cites an alternative tradition to social-contract theory, one he identifies as extending from Smith to Mill and beyond and characterizes as "comparative" in its measuring of the justice actually experienced by individuals. That countertradition issued, Sen explains, in the "analytical—and rather mathematical—discipline of social-choice theory" developed by Kenneth Arrow in the mid-20th century.
"Reasoning," writes Sen early on, "is a robust source of hope and confidence in a world darkened by murky deeds." In The Idea of Justice, Amartya Sen provides us with a stunning model despite his eternally ambiguous and imperfectible subject. As he so winningly adds, "The remedy for bad reasoning is better reasoning."
- Carlin Romano, ("Amartya Sen Shakes Up Justice Theory," The Chronicle Review, 9.14.09. Image: "Blind Justice", Playboy Magazine Illustration, 1980s).