Thomas Aquinas said
that a just law was one that served the common good, distributed burdens
fairly, promoted religion, and was within the lawmaker's authority.
However, what are “the common good” and a "fair distribution of burdens”
and what is the position of religious values in a secular legal system?
Later philosophers have developed the concept of Distributive Justice has
produced other theories of justice.
Utilitarianism as a
theory of justice is based on a principle of utility, approving every
action that increases human happiness (by increasing pleasure and/or
decreasing pain, those being the two "sovereign masters" of man) and
disapproving every action that diminishes it.
A utilitarian view
is that justice should seek to create the greatest happiness of the
greatest number. A law is just if it results in a net gain in
happiness, even at the expense of minorities. The problem here is
that minorities may not form part of the "greater number". This is a
particular problem in a pluralist society.
plays a major part in the democratic decision-making process; it is a
secular theory requiring no reference to any natural rights or other
abstract religious principles defensible only by faith. The idea of
maximising the total happiness of the community is often applied on a
national political level and in ordinary dealings among friends.
In marginal cases,
the theory breaks down and produces results far removed from those that
most people would consider right. In an Economic Theory of Justice,
there is conflict between the views of the individual and the collective
view, sometimes referred to as the, social contract. Such conflict
can be seen by asking how a doctor with £100,000 to spend should chose
between 100 patients with a minor condition; he can treat all of them, or
1 very sick person who would take all his resources. There is no legal
requirement that the National Health Service distributes its assets
evenly. This can produce results that anger the majority, who
respond emotionally; the case of Child B produced national anger, fuelled
by newspaper reports. Jaymee Bowen (Child B) has come to epitomise the
dilemmas involved in making tragic choices in health care. When 11
year-old Jaymee needed life-saving cancer treatment for the third time,
the hospital refused funding in R v Cambridge Heath Authority ex
parte B  CA the Court of Appeal upheld the
hospital’s decision. Medical advice that Jaymee had only a 2.5 per
cent chance of survival was basically that the £75,000 it would cost to
carry on her treatment would be wasted and could be put to better use for
others. An anonymous benefactor stepped in and paid for Jaymee
to receive the treatment privately, she died 16 months later. T S
Eliot famously remarked, “Human kind cannot take very much reality".
Jeremy Bentham and
John Stuart Mill believed that the law should not interfere with private
actions unless they caused harm to others.
JS Mill writing in
“On Liberty” said that private acts of immorality increase the pleasure of
those who indulge in them and cause little pain to others. Their net
effect is to increase the sum of human happiness and laws prohibiting them
would be unjust.
JS Mill On Liberty
The idea that wealth
should be distributed evenly denies the possibility that individuals will
be stimulated to improve their own income and thereby increasing the
wealth available to all. The theory that we all live in a society
from which we draw benefits and to which we contribute is called the
“social contract”. Bentham said that the “social contract” and
its claim to natural rights is "nonsense on stilts" that inhibits
desirable social changes.
Bentham might argue
that compelling people to have their babies vaccinated using the MMR
vaccine, would be morally preferable than leaving such a decision to the
discretion of parents because it would drastically reduce the incidence of
measles, mumps and rubella (and their horrible consequences) within the
population at large.
Liberal-Natural Rights theories
rights view of justice is measured according to the extent minorities and
the most vulnerable are protected. It uses a notion of natural
rights, the minimum rights to which all are entitled.
What are these
Rawls' hypothesis of
the ‘original position’ (see below) gives some guidance on what these
basic rights are. It can be argued that this simply returns us to
the statement that what is just, is what is fair’?
libertarian-market view holds that any interference in market distribution
of benefits and burdens is an unjust restriction on individual freedom,
and that justice should only allow limited intervention to prevent unjust
enrichment, by which they mean basically theft and fraud and exploitation.
‘What is justice?’ is as much a political question as a legal or
Perelman, Nozick, Hart and compensation
In “The Concept of
Law”, Hart linked the idea of justice with that of morality. Like
cases, he said, should be treated alike. This is a common theme in
all theories of justice, which has its origins with Aristotle.
Aristotle believed that like should be treated alike and unlike treated
accordingly. In this case, Aristotle was referring to people of
similar class and status, free men should be treated alike, but not
treated the same as slaves. A slave was entitled to be treated like
any other slave. In less structured societies, it raises the
question "what makes cases alike or different?" In terms of
sentencing and defences such as insanity, it raises other questions dealt
with under “Corrective Justice”, below.
In the Bible (Romans
2), there is reference to “to each according to his works”. Marx
believed that a communal society would operate under the slogan: "From
each according to his ability, to each according to his need." Other
Marxists, such as Perelman have developed this idea. To each
according to his works/needs/merit/rank/entitlement/means/ etc.
Most people would
agree that most of the system of distribution supported by law in the UK
is just and leads to just results most of the time. Marxists would
disagree; the Marxist perspective is that distributive justice favours
capital and therefore works against the interests of the working classes
the original position
American jurist John
Rawls in "A Theory of Justice" (1971) analysed law on the basis that a
rational person will pay for those things wanted badly enough.
His theory rejects utilitarianism, which was based on maximising happiness
and constructs a social contract aimed at establishing principles of
justice. Free and rational persons concerned to further their own
interests adopt principles of justice, which define the basis of their
His analysis is
purely hypothetical. It holds that the concept of the rational choice as
one that could help our understanding of what justice might require.
In practice, all human beings are born into a particular society with no
"Veil of ignorance"
the original position
In making the
hypothetical choice, Rawls insisted that the individual should operate
behind a "veil of ignorance" where they do not know their sex, class,
religion or social position or whether they are strong, clever or stupid,
the state or period in history in which they exist. Rawls then predicted
that any such society would exhibit two essential features.
First, people in the
original position would agree that each person should have an equal right
to certain basic liberties, such as freedom of person, freedom of speech
and thought, freedom to participate in government, and freedom to possess
property, to the greatest extent compatible with the enjoyment of the same
basic liberties by others.
Second, social and
economic inequalities, and differences of treatment, would be acceptable
only insofar as they were available in principle to anyone, and were for
the benefit of the least well off members of the society.
Thus, for example
people would agree that doctors should be paid higher than average
incomes, because this would encourage able people to qualify as doctors
and so benefit everyone in the long run.
On ‘lifting the
veil’, anyone could be at the bottom of the social hierarchy. Rawls
considers that there are two principles of justice namely; liberty and
equality, and they would select liberty over equality. Liberty
(ensures an equal right to basic liberties). Equality (economic and
social inequalities arranged for the benefit of the least advantaged, and
equality of opportunity).
Rawls is criticised
for not explaining why liberty would be selected before equality or why
natural talents to be treated as collective assets.
and historical entitlement
To Robert Nozick in
"Anarchy State and Utopia" (1974) Justice is based on rights. One of
these rights is the right to retain our own property, even against the
state. He would claim that we have no obligation to help those worse off
unless we had obtained our wealth from them improperly. There could
therefore be no question of redistribution of wealth for social purposes.
This philosophy heavily influenced the thinking of Margaret Thatcher, who
was determined to “Roll back the State”. Therefore, Rawls’ theory of
distributive justice involved interference with the inherent rights of
– does it have boundaries?
Justice is, perhaps
giving people what they are due. In this context, one can ask, “To whom
(or what) is justice owed?” Historically, full political equality has
expanded slowly for example, recognition of white property owning males,
recognition of white females, immigrants, members of minority and ethnic
groups, gays and lesbians. What then is the scope of justice?
Justice is not only about what courts and legal systems do there are some
fundamental philosophical questions that need to be addressed. Are
foetuses “persons”? What rights do children have? Can claims of justice
be made on behalf of the dead or even on behalf of generations of people
as yet unborn (concerning, for example, claims to the preservation of
natural resources)? What is the moral standing of nonhuman animals,
whether as whole species or even as individual living creatures?
A further set of
problems concerns the significance of geographical boundaries, state
boundaries. As UK subjects, we are increasingly challenged to think of
ourselves as citizens of Europe and perhaps citizens of the world and not
just as subjects of the UK. If we consider, and act on, what others
are due, the question of what human beings in other counties are due
becomes increasingly important. Are there basic human rights? If so, do
such rights require supranational legal institutions to see that they are
Should we be
considering these questions in the same legal and philosophical way as we
view domestic theories of distributive justice? In particular, in a
utilitarian sense, based on Rawls entitlement should justice be concerned
with larger community issues, perhaps globally?