Justice

3. Teleology

In the history of thought about justice, the most common justification of any given set of laws, conventions or practices has been to appeal to an external, usually divine, authority. In the natural law tradition, to make an act just it is not enough that it complies with the society’s positive law. The positive law must itself be in accordance with a natural law which is knowable through the faculty of human reason (see Natural law). This tradition, owing its origins to the Greek Stoics, found its most lucid interpreter in Cicero (§§2, 4) and was given its definitive Christian form by Aquinas (§13). ‘True law’, writes Cicero, ‘is right reason in agreement with nature; it is of universal application, unchanging and everlasting’( c.54–51 bc: III, XXII, 211). The link to human nature via human reason is important, for it then follows that human beings reach their true end, or realize their true natures, only by living in accordance with natural law. What justice is and why it is a good are, thus, answered at the same time.

A major problem for this account is its reliance on an external source. Cicero is typical in claiming in the same passage that it is God who ‘is the author of this law, its promulgator, and its enforcing judge’. Natural law theory faces the difficulty of having to give an account of the existence and verifiability of the ‘true and unchanging’ moral order. Commonly, the natural law was conveniently said to underwrite the existing positive law: this may reflect the role of the powerful both in formulating positive law and defining natural law.

Suppose we are attracted to the notion that human institutions are to be justified by their contribution to human good, but do not believe that human reason is capable of discerning a divine plan. Then we may naturally arrive at the secular alternative embodied in utilitarianism: the idea that the ground of justification is human wellbeing, happiness or ‘utility’. When the utility of different people conflicts, the criterion for bringing their interests into relationship with one another is that aggregate utility is to be maximized (see Utilitarianism).

Utilitarianism can be characterized as a theory of justice if we simply define justice as the principal virtue of institutions. Utilitarians claim that, in the last analysis, there is only one virtue that matters: maximizing utility. However, utilitarianism is liable to violate elementary demands of justice as they are commonly understood: two people with identical deserts will be treated very differently if the utilitarian calculus happens to produce the finding that utility would be maximized by so doing. The common belief is that what is due to a person ought to be related to something about that person, not derived from a calculation about what would most effectively further some overall desirable state of affairs.

An important line of thought within utilitarianism has attempted to head off such criticisms by arguing that in practice the dictates of utilitarianism would underwrite the practices and institutions that are usually thought of as being required by justice. Thus, David Hume (§4), in A Treatise of Human Nature (1739–40), described justice as an ‘artificial virtue’ in that individual acts of justice contributed to utility not directly (as an act of benevolence would) but indirectly qua adherence to an institution that was on the whole beneficial. Hume’s examples were respect for property, chastity (in women), allegiance to the government and promise-keeping. For Hume, then, justice was a convention – but it made sense to ask what good was served by following it. On somewhat parallel lines, J.S. Mill (§11) argued in ‘Utilitarianism’ (1861) that ‘justice’ is the name we give to those precepts whose strict observance is important for the furtherance of the utilitarian end. Thus, utilitarians argue that the arbitrary departures from social rules summoned up by anti-utilitarians as an implication of the doctrine are, in the long term, not really for the general good. Opponents of utilitarianism however have claimed that situations might still arise in which injustice (as normally understood) would be for the general good. Further, they complain that the foundations of the theory remain unsatisfactory because it does not (in John Rawls’ phrase) ‘take seriously the separateness of persons’.