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Original text: Justice

Summarized: 7 minute read

1. Justice: Mapping the Concept

Justice is a concept that takes on different meanings in different practical contexts. The most plausible candidate for a core definition comes from the Institutes of Justinian.

1.1 Justice and Individual Claims

Justice is the principle of treating people equally, but in certain circumstances, we may not need to appeal to justice to resolve conflicts between people’s claims, such as when people’s interests converge and a decision is made about the best way to pursue a common purpose.

Although justice is centrally a matter of how individuals are treated, it is also possible to speak of justice for groups.

1.2 Justice, Charity and Enforceable Obligation

Justinian’s definition of justice underlines that just treatment is something due to each person, and that justice is a matter of obligation for the agent dispensing it. Justice is also enforceable, but not all claims of justice are enforceable.

1.3 Justice and Impartiality

Justinian’s definition of justice draws our attention to the connection between justice and the impartial and consistent application of rules. The rule of law exemplifies justice, and individuals and institutions that want to behave justly must mimic the law.

1.4 Justice and Agency

The definition of justice reminds us that it requires an agent whose will alters the circumstances of its objects. We cannot describe as unjust states of affairs that no agent has contributed to bringing about, unless we think that there is a Divine Being who has ordered the universe.

2. Justice: Four Distinctions

2.1 Conservative versus Ideal Justice

Philosophers have observed that justice has two different faces, one conservative of existing norms and practices, the other demanding reform of these norms and practices. This exposes an ambiguity in what it means to ‘render each his due’.

Conceptions of justice vary according to the weight they attach to each of these faces. For example, Hume understood justice as adherence to a set of rules that assign physical objects to individuals, while Hayek understood justice as compliance with the ‘rules of just conduct’ that enable a market economy to function effectively.

Rawls’s two principles of justice are ideal principles for assessing existing institutions and practices, but they are not intended to be applied in a way that disregards people’s existing legitimate expectations.

Rawls attempts to reconcile the demands of conservative justice and ideal justice by arguing that entitlements are earned and honored as the public system of rules declares. Yet he does not directly address the question of transitional justice.

2.2 Corrective versus Distributive Justice

Aristotle distinguished between distributive justice and corrective justice. Distributive justice requires that the resources available to the distributor be shared according to some relevant criterion, such as equality, desert, or need.

The conceptual distinction between distributive and corrective justice seems clear, but their normative relationship is more difficult to pin down. Corrective justice requires the wrongdoer to restore or compensate the person he has wronged, even if the cause of distributive justice could be better served by transferring resources from a third party.

Aristotle suggested that corrective justice aims to restore the two parties to a position of equality, but modern philosophers disagree about what standard of responsibility should apply and whether compensation can be demanded when the perpetrator displays no fault but is nevertheless causally responsible for the injury.

A distinction must be drawn between the justice of a procedure and the justice of the final allocation. A procedure may be just even though the outcome it produces is not, and vice versa.

Theories of justice can be distinguished according to the relative weight they attach to procedures and substantive outcomes. Robert Nozick distinguished between historical theories of justice, end-state theories of justice, and patterned theories of justice in order to defend the first against the second and third.

For most philosophers, the justice of a procedure is to a large extent a function of the justice of the outcomes that it tends to produce when applied. Yet, even in fair trials, we should be wary of assuming that the procedure itself has no independent value.

2.3 Comparative versus Non-Comparative Justice

Justice takes a comparative form when we need to look at what others can also claim to determine what is due to one person. Justice takes a non-comparative form when we can determine what is due to one person merely by knowing relevant facts about that particular person.

Theory of justice can be categorised as comparative, non-comparative, or neither. Principles of desert are less straightforward to define, and can take one of four forms, depending on whether the basis of desert and/or the deserved mode of treatment is comparative or non-comparative.

Principles of justice that are straightforwardly non-comparative include the sufficiency principle, which holds that everyone should have ‘enough’, on some dimension or other. However, this principle needs to be supplemented by other principles to guide us in situations where there are too few resources.

Some theories of justice are holistic or systemic, and cannot be classified either as comparative or as non-comparative. These theories make comparisons between the effects of different social institutions, rather than between individual people and the benefits they are receiving.

3. The Scope of Justice

When we raise questions about the scope of justice, we are asking about when principles of justice take effect and among whom. Some principles of justice have universal scope, while others are contextual, and apply only within certain social or political relationships.

3.1 Human vs non-human animals

Most past philosophers assumed that non-human animals were outside the scope of justice, but more recently some have been prepared to defend ‘justice for animals’.

The domination humans exercise over animals means that they should not be subject to the laws of justice. Rawls and those influenced by him claim that principles of distributive justice apply among agents who are related to one another as participants in a cooperative venture for mutual advantage.

Animals cannot make claims of justice on humans because they lack the necessary moral powers, such as the capacity to distinguish what is justly owed to them from what is not, and to determine what they owe to others as a matter of justice.

If we accept that some animals should be included within the scope of justice, we must use a non-comparative approach to determine what rights they are owed.

3.2 Relational vs Non-Relational Justice

The Rawlsian view holds that principles of social justice apply among people who are engaged together in a co-operative practice, and that justice is limited to those within the relationship. Other theories offer different accounts of the relevant justice-generating feature.

Whether distributive justice is relational in either of the ways that Rawls and Nagel suggest has large implications for its scope. In particular, it bears on the question whether there is such a thing as global distributive justice.

Relational theorists claim that when people associate with one another in the relevant way, they become agents of justice, and that on a larger scale, they create legal and other institutions to achieve distributive justice.

If we see the market as a neutral arena in which many individual people freely pursue their own purposes, then the only form of justice that arises will be justice in the conduct of each agent.

3.3 Individuals vs Institutions

Once institutions are established for the purpose of delivering justice on a large scale, we can ask what duties of justice individuals have in consequence. Some duties fall on individuals directly, while others fall on individuals because they are performing a role within a social institution.

Parents are free to confer advantages on their children that are likely to lead to greater success in later life, as long as they do not undermine fair equality of opportunity.

Rawls argued that economic justice meant arranging social and economic inequalities to the greatest benefit of the least advantaged, but Cohen argues that if individuals are willing to forego incentives, then economic inequalities serve no useful purpose.

Justice requires people to refrain from doing things that they are permitted to do by the public rules of their society, but it is hard to tell whether they are being sincere or just trying to buy comparative advantage.

3.4 Recognition vs. Redistribution

Recent philosophical writing on justice has drawn attention to forms of injustice that do not involve material treatment, but rather failures of recognition. These failures of recognition include being placed in a category or assigned an identity that is not their own.

To be recognized, a person must be accorded the kind of standing that gives them an equal status with other members of the relevant group, and must also possess characteristics, achievements or an identity that may be uniquely their own.

Justice as recognition can be understood expansively to include issues of economic justice, and recognition and redistribution are seen as two mutually irreducible but jointly necessary conditions for social justice.

Miranda Fricker diagnoses two forms of recognitional injustice: testimonial injustice and hermeneutic injustice. Testimonial injustice occurs when prejudice causes a hearer to give a deflated level of credibility to a speaker’s word, and hermeneutic injustice occurs when a subordinated party lacks the concept to make sense of their experience.

4. Utilitarianism and Justice

Justice can be understood in utilitarian terms if we interpret utilitarianism as a normative theory that aims to supply a criterion for deciding what to do, rather than simply as a tool for evaluating states of affairs.

4.1 Accommodating intuitions about justice

Mill and Sidgwick argue that desert is a key component of common understandings of justice, but that common sense leads to irresolvable contradictions. The only way to escape the impasse is to ask which schedule of rewards will generate the most utility.

Mill suggests that justice is the discharge of moral requirements, and that we feel resentment towards someone who breaches these requirements. Sidgwick also argues that justice is related to gratitude and resentment.

4.2 Utilitarian theories of justice: three problems

The currency of justice is the way that tangible benefits and burdens are assigned, not the happiness or unhappiness that the assignees experience. Utilitarians will find it hard to explain what from their point of view seems to be the fetishistic concern of justice over how the means to happiness are distributed.

Utility theory is unable to capture justice’s demand that each should receive what is due to her regardless of the total amount of benefit this generates. This is because utilitarianism judges outcomes by totalling up utility levels, and has no independent concern for how that utility is distributed between persons.

Utilitarianism’s thoroughgoing consequentialism means that rules are assessed strictly in the light of the consequences of adopting them, rather than in terms of their intrinsic properties. But this means that utilitarian rules cannot capture the sense of justice that informs our common-sense judgements.

5. Contractarianism and Justice

Several recent philosophers have revived the idea of the social contract as a better way of bringing coherence to our thinking about justice. The idea is that people would agree on principles to govern their institutions, practices and personal behaviour if they had to.

Contractarians have to model the parties in a particular way in order to show how an agreement could be achieved. These models can be different for each party.

5.1 Gauthier

Gauthier (1986) presents the social contract as a bargain between rational individuals who can gain through co-operating with one another, but who are competing over the division of the resulting surplus. The principle of Minimax Relative Concession recommends a solution where each person concedes the same relative proportion of their maximum possible gain.

Gauthier’s theory of Minimax Relative Concession has some internal difficulties that need to be recorded briefly, and the larger question is whether a contract modelled in this way is an appropriate device for delivering principles of justice.

5.2 Rawls

John Rawls’ theory of justice is the most widely-cited example of a contractarian theory, but it is less clear how important a role the contract itself plays in his thinking. His principles can be defended on their own merits even if their contractual grounding proves to be unsound.

Rawls shows that the parties to an original position contract would choose a social principle that would maximize the weighted sum of primary goods, averaged across all persons. This would bring the theory very close to utilitarianism, but Rawls wants to reject utilitarianism.

Rawls argues that the difference principle should be the benchmark for distributing income and wealth, and that the parties should start out with the presumption that income and wealth should be distributed equally, but that they should then recognize that certain inequalities can be justified.

Rawls’ theory of justice is contractarian, but it is also governed by normative principles. The parties must follow these principles in order to achieve justice.

5.3 Scanlon

Scanlon (1998) attempts to develop a theory of justice that is different from Rawls’s, but covers much of the same terrain. His contractarian account of morality is based on the idea that each person has a veto over any general principle.

Contractarianism is a theory of moral reasoning that gives each person a veto over a principle, but that also takes into account the reasons of other people for rejecting the principle. This is different from the difference principle, which requires the worst-off group to be better off.

6. Egalitarianism and Justice

Philosophers have sought to establish a close connection between justice and equality, but we should not assume that justice always requires equality, whether of treatment or of outcome. Justice may also require proportional treatment, which implies unequal amounts of whatever good is at issue.

6.1 Justice as Equality

When a group experiences a windfall gain, justice requires a substantively equal distribution of advantages. If no one can make a justice-related claim for a larger-than-equal share, an equal distribution is what justice demands.

Equality is a default position in situations where we cannot tell whether one person’s condition is more serious than another, and therefore we must share out the good equally to ensure that every claim has been partially satisfied.

Egalitarian justice requires equality only by default, but a wider range of factors can be declared irrelevant to just distribution. This discounts most claims of desert, since people are usually said to deserve benefits for performing actions or displaying qualities that depend upon innate characteristics.

A second approach to the question of why it is positive to afford people equal treatment even if they do display features that might appear to justify differential treatment is to explain that justice requires equal concern and respect for persons.

6.2 Responsibility-sensitive egalitarianism

A sub-class of responsibility-sensitive egalitarianism is luck egalitarianism, which holds that no-one should be disadvantaged relative to others on account of ‘brute’ bad luck, whereas inequalities that arise through the exercise of personal responsibility are permissible.

Luck egalitarianism is a controversial idea that seeks to capture the most attractive part of the conventional idea of desert while filtering out the effects of having (undeserved) natural talents. However, there is no coherent half-way house between accepting full-blooded desert and denying relative advantage through the exercise of responsibility and choice.

A second problem with luck egalitarianism is that it may lead to a distribution flecked by luck, because people may use their shares in a way that benefits them but does nothing to improve the position of others.

6.3 Relational Egalitarianism

Social equality is valued independently of justice, and can be understood as a property of relationships that prevail within a society.

Relational egalitarianism is a theory of justice that argues that we should care about limiting material inequality because it creates a divided society in which people are alienated from each other and cannot interact in a mutually respectful way.

7. Conclusion

We saw at the beginning of this article that justice can take a number of different forms, depending on the practical context in which it is being applied. We found common elements running through this diversity of use, but none of these frameworks passed the Sidgwick/Rawls test.

One way to loosen up our thinking about justice is to pay greater attention to the history of the concept. We can learn a lot by reading what Aristotle, Aquinas, or Hume has to say about the concept, but we also see elements we would not anticipate.

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