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Chapter 2

Conceptions of Justice

Classic and Modern Forms

Justice is a complex notion that has been debated across the centuries and will likely continue as a contested concept beyond our time. While this chapter cannot be an exhaustive look at the infinite philosophies of justice, it does provide an understanding of some of the major theories, as well as resources for further reading.We begin with a look at the classic Greek ideas of justice and move forward through time to include modern and postmod- ern understandings.

Classic Conceptions

Western thought and philosophy is often drawn back to the ancient Greeks and their conceptions of justice, equality, and politics.This section of the chapter highlights some of these ancient understandings and their influence upon later writings and conceptions.

Plato (427–347 B.C.) and Socrates (469–399 B.C.)

In Pangle’s (1980) interpretation of The Laws of Plato, Plato references both religious and mythical ideas of justice. In this work, an Athenian stranger inquired about the origin of laws and was told that the gods, including Zeus and Apollo, were responsible for local laws depending on the group in ques- tion.The stranger further asked about the influence of Homer (ca. 800 B.C.) upon the laws of the cities and was assured that Homer was influential.1

While the physical embodiment of Homer is the source of controversy and philosophical debate, the idea of justice as vengeance is clear in the tale of the Iliad (Homer 1961).The philosophical legacy of Homer was not entirely embraced by the Greeks but was questioned and expanded upon by Plato in his documentation of Socrates’ dialogues regarding questions of justice. This style of inquiry implies that ideas should not be merely handed down by gods or legends but should be debated and decided upon by a group of citizens. This exemplifies the Greek political tradition of democracy. There is a direct line from the Greek tradition to our current Western tradition of debate and

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decision to which we still adhere (though in a different fashion) to varying degrees in a variety of circumstances.These traditions were instead appropri- ated after a hiatus by revolutionaries seeking historical justifications for their desires to violate the established order. At this point it is simply important to understand the impact of the dialogue in the understanding of justice rather than accepting the definitions offered by others.

Plato’s writings illustrate competing ideas and conceptions of justice while privileging the position that justice is within the character of the individual and expressed through just behavior (Lycos 1987). In the Republic, Plato (1951) recorded a dialogue between Socrates and three persons of different back- grounds attempting to answer the question “What is Justice?” An Athenian, Polemarchus, began with the Homerian understanding that it is just to harm one who has harmed you. Socrates countered that if justice is excellence, then the harming of another reduces excellence (in both parties) and cannot be just. It should not be surprising that the merchant among them, Cephalus, con- tended that justice is the paying of debts and returning what is owed. Again Socrates was not convinced and suggested that returning a weapon to an insane man, though he may own it, cannot be just.Thrasymacus, a teacher of rheto- ric, argued that justice is whatever serves the interest of the powerful. Socrates did not appreciate this argument and in fact turned it upside down, suggesting that rulers would not seek their own advantage but would seek justice for those whom they rule (Plato 1951, 24).

Lycos (1987) contended that Socrates and Plato (through his documen- tation of Socrates), were interested in placing justice within the individual informed by knowledge and reflection. The soul was described as reflecting justice within the individual through the person’s “form of living” (173). It is important to note that seating justice within the soul informed through knowl- edge would serve the interests of philosophers such as Socrates and Plato. However, placing justice wholly outside the individual, intellect, or soul would serve the interests of others, as in the examples offered in the above Socratic dialogue. Lycos (1987) suggested that these ancient ideas of justice can be seen as enabling conditions which in their best form allow individuals and com- munities to address not merely individual injustices but also the conditions that create injustices.This form of justice, as Lycos wrote, allows human beings “the power, not merely the right, to flourish and realize their potential” (174). This noble promise supports the continuing influence of the ancients upon our understandings and studies of justice.

The dialogue captured by Plato illustrates a variety of definitions applied to justice. Gaus (2000) noted that the meanings we instill in terms and ideas that are inherently political, such as justice, are not as simple as defining a term because the conception is dependent upon a political perspective.“What is at stake is not the meaning of a word, but a view of the world” (262).While the

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Greeks can be seen as progressing to a more inclusive form of politics, thereby allowing a more democratic notion of justice, these writers were not democratic in our current sense of the term. Specifically excluded from citizenship, debate, and the assumption of possessing a mind or soul were women and slaves.

The understanding of justice as an excellence embodied within a just per- son may seem harmless or even superior to other conceptions. However, this form of justice espoused by Plato and Socrates is rife with the politics and power relations of the time. It is no accident that Plato writes of the just “man,” which explicitly excludes both women and slaves.Women and slaves were held in similar states of servitude and considered equal to beasts.A con- ception of justice such as Plato espoused, which holds that justice is embodied in the just man, excludes women and slaves from the holding of justice.2

Socrates also reasoned that vengeance does not serve justice, that payment of debt is not required by justice if such payment may cause harm, and that rulers rule for the sake of justice. These understandings of justice preclude the vengeance of the oppressed against their oppressors, slave reparation, and the questioning of authority among other possibilities. One’s placement in the power structure would surely inform one’s agreement with these ideas. It is for this reason that, while we continue to study the ancients, we continue to build upon their ideas and/or reject their ideas in preference of others.

Aristotle (384–322 B.C.)

Aristotle’s ideas were, not surprisingly, similar to those of his professor, Plato. For example, their understandings of justice as a characteristic of indi- viduals expressed through their allegiance to a just government were alike. However, according to Kagan (1965), differences in their backgrounds pro- duced some subtle differences in their thinking. Unlike Plato,Aristotle was not born into the Athenian aristocracy.Aristotle was foreign born, middle class, and had married into the aristocracy. Gaus (2000) noted Aristotle’s famous insis- tence on the importance of equality.While Aristotle gave more attention to the idea of equality than did his predecessors and insisted upon its necessity to jus- tice, he was not arguing for absolute equality. Instead, he qualified equality.

Aristotle (2000) was clear that equals must be treated equally while unequals must be treated unequally. This idea of proportionate equality was described as just while counterproportionate equality was described as unjust. Aristotle went to some lengths to quantify this idea of proportionality, explaining that the unequal treatment of equals or the equal treatment of unequals leads to quarrels (Gaus 2000).While this may sound very convoluted and unfair, this form of in/equality is still with us today.Aristotle (2000) offered the example of money as the measure for exchange, explaining that it would be difficult for a shoemaker and a house builder to exchange their products otherwise. How many shoes would a house be worth? With money as the

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measure, these two can exchange unequal amounts of money for unequal products of their labor.

Although money was used in his example,Aristotle’s (2000) main concern was for political equality (equality before the state and the law) rather than economic equality.Aristotle further divides justice into distributive and recti- ficatory, with the former referencing the appropriate distribution of goods within transactions (similar to our civil law) and the latter concerned with the rectification of harms (similar to our criminal law).

St.Thomas Aquinas (1225–1274 A.D.)

Aquinas’s influential writing, Summa Theologica, included major sections on justice.3 He, along with St. Augustine (1964), were to integrate a number of biblical ideas into their notions of justice. For Aquinas, the key ideas of justice were to be found in Sections 57–122 of “Secunda Secundae Partis” in the form of answers to objections. Justice was to be seen as grounded in nat- ural law. There were objective principles that existed, naturally, and remain only to be discovered through enlightened reasoning.The source was divine will. Justice existed only where positive law (law created by legislators) was congruent with natural law.Where incongruency existed, natural law allowed disobedience.

Justice is defined as “a habit whereby a man renders to each one his due by a constant and perpetual will” (Aquinas, Qu. 58, art. 7). Aquinas defined justice in two forms:“general justice,” which is equated with legal justice and is based on the laws of the state, although, when faltering, ultimately it is nat- ural law that is its base; and “particular justice,” which is further divided into “commutative” and “distributive” justice (Qu. 61, art 1).

Commutative justice is focused on the relation of one person to another, whereas distributive justice is the relation of the community to the person and the proportional distribution of the common goods. Distributive justice also deals with transgressions and requires when the law is broken that the offender be punished and that the victim be compensated. In addition,“in distributive justice a person receives all the more of the common goods, according as he holds a more prominent position in the community” (Qu. 61, art. 2). In other words, a person’s rank in a community determines his or her dues (rewards).4

Unlike inequality that prevails at the distributive level, Aquinas argued that equality prevails at the commutative forms of justice, most prominently found in exchange of buyer and seller.5

For Aquinas, placing justice in natural law principles was grounds for questioning conceptions that are not in accordance with justice.An unjust law is simply not law. Oppressive law, then, has a basis for opposition.At the same time that it provides grounds for disobedience and struggle, however, it also opens up issues of how various parties can ground their interests in their own

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conceptions of natural law (Ross 1974).6 Current justice struggles that compete for the natural right to life against the death penalty and/or abortion exemplify such struggles.

Modern Inquirie s

Depending on one’s perspective, the modern age might indicate different points in history. One might think of the modern age as any point after the invention of the wheel or as not occurring until the invention of the microwave. During a guest lecture at Texas Woman’s University in 1999, T. R. Young (1928–2004) asked his audience when the modern age began and was met with silence. One of the authors of this work was thinking about Watson and Crick’s decoding of DNA strands when Professor Young announced that the modern age began with Sir Francis Bacon (1561–1626). Bacon utilized what we now think of as the scientific method in his inquiry, thus developing a new way of looking at the world.This placement of the modern age has stuck with this author, and so it is in the time of Bacon that we place the beginnings of the modern age for our consideration of justice.

Thomas Hobbes (1588–1679)

Hobbes was a contemporary of Bacon and put forward a theory of social contract without any appeal to religious explanations. Hobbes’s view of human- ity was pessimistic, asserting that unless held in check through a common overseer (the sovereign) men would be in a constant warlike state. In his book Leviathan, he said that “the natural condition of man . . . is war of every one against every one—in which case everyone is governed by his own reason and there is nothing he can make use of that may not be a help unto him in pre- serving his life against his enemies” (Hobbes 1958, 85). Men in the state of nature, therefore, were under no obligation to respect anyone. It was through the social contract of agreed upon political authority that Hobbes located jus- tice. According to Hobbes, the sovereign was established by the people with full authority to dictate rights and judge claims to those rights (Gaus 2000; Hobbes 1958). Hobbes conceived of individuals as equal and rational in enter- ing into a contract with each other to keep the peace and maintain security. The social contract expressed itself through the social control of the sovereign over others. Given that responsibility, the sovereign in Hobbes’s view was beyond the reproach of its subjects.

Because of his fatalistic view of humanity as naturally warlike and quar- relsome it follows that an unquestioned authoritarian government would be necessary to keep the peace.Allowing for the critique of the sovereign would allow for the emergence of conflict. Hobbes conceded the right to dissent only in the case that to obey the sovereign would threaten one’s life. Hobbes

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saw the governing authority as protective of justice between its subjects through the resolution of disputes which arise because of the nature of humans to quarrel. Hobbes was less concerned about the potential for violations of justice by that authority (Barry 1989).

John Locke (1632–1704)

Locke also saw the social contract as central to justice but was not as pes- simistic as Hobbes when it came to the natural state of man.Therefore, Locke had a very different understanding of the social contract, even though he assumed that people were morally obliged because of their belief in God.

Locke perceived the natural state of humanity as one that inherently rec- ognized the rights of others to their lives and liberty (Locke 1924). He did not see political authority as necessary to ward off war but as necessary to enforce violations of the recognized rights of individuals protecting the life and prop- erty of each from the other. For Locke, the war of all against all could still exist after the establishment of a state in so much as there still would be power dif- ferences and conflict. Locke’s social contract then is extended to the political authority for the purpose of resolving disagreements between persons which arise from the violations of individual rights, not to keep necessarily warlike people from conflict. Locke further saw the political authority as constrained by the preceding natural rights of individuals. This authority, then, unlike Hobbes’s sovereign, should not infringe upon the lives or liberty of the gov- erned. Locke’s authority is held accountable by the people to respect the rights of individuals when arbitrating disagreements. Locke has significantly influ- enced the classical liberal tradition.

Immanuel Kant (1724–1804)

Modernist theory is often traced to Kant and Descartes. Kant assumed human beings to be rational and to have the ability to reason. “Reason pro- ceeds by ‘eternal’ and ‘unalterable’ laws” (1965, 9). Each individual, for Kant, was unique and an end in itself, never a means to an end. Accordingly, each must be respected.The rational being was seen separable from the body and its emotionality.This notion is referred to as the Cartesian dualism—the separa- tion of mind from body.

Kant’s classic, The Foundations of the Metaphysics of Morals (1969), advocated morality as a categorical imperative.The categorical imperative stands for any proposition that calls forth a particular action and is seen as an absolute require- ment regardless of a situation (a universal law). For example,“In order not to get wet, I need to take my umbrella,” “To be good is to be respectful of others,” etc. Our conduct should be based on principles that we could reason to be universal principles.“Act according to that maxim by which you can at the same time will that it should become a universal law” (44).

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Kant’s second principle was to “act as though the maxim of your action were by your will to become a universal law of nature” (44–45). The third principle, the means/ends principle, is sometimes referred to as the “ends for- mula”—that is, that a human being should be seen as an end in and of itself. The fourth categorical principle was the capacity to act based on autonomy and self-governance.The fifth, which was to also locate him in the social con- tract tradition, is that we should act according to terms that could universally be derived from rational thought.This principle, called a “kingdom of ends,” is explained as “the systematic union of different rational beings through com- mon laws” (58). Each person pursuing his or her interests acknowledges other rational beings pursuing theirs and both are bound by rationally developed laws.The social contract would be but one example.

For Kant, the just state can only be realized by the collective will of the people. It should be in the form of a republic (1983, 112).The republic is but the call for freedom and reason. For Kant, a hypothetical “original contract,” derived from reason, could be examined in terms of the justness of laws passed by the Republic.“[I]t [the original contract] obligates every legislator to for- mulate his laws in such a way that they could have sprung from the unified will of an entire people” (77).

Jean-Jacque Rousseau (1712–1778)

Rousseau was more similar to Locke than Hobbes in his understanding of the social contract. Like Locke, Rousseau (1973) envisioned a more coopera- tive than combative human nature and extended this view to an understanding of property as shared. It was not until private property was recognized and taken that the social contract became necessary. He found a certain conflict between civil society and the state of nature of Hobbes. For Rousseau, the state of nature was not one of a war of all against all, but rather by nature, peaceful, and the war of all against all was only to come about with the onset of the development of society.With the desire for self-improvement humans entered cooperative relations, which in turn lead to greater desires for products, pos- session, and subsequently inequalities.This leads ultimately to conflict, estab- lishment of civil society, and law. It is this point in history that Rousseau finds both destructive to the natural state and in need of the social contract to deal with the inequalities that arose with the birth of private property.

The social contract binds people (whom Rousseau insisted were not merely a collection of individuals but an aggregate) into a common good to which each submits to avoid the dependence on the will of any individual (Gaus 2000).Whereas in society prior to the contract people were moral because of compassion, in contractual forms of society, it is reason, the will, that deter- mines morality. It is the general will incorporated in the social contract that expresses this consensus, and thus individuals are bound by its terms.

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More Recent Modernist Thought

The concept of the social contract and social justice has been with us for centuries. More recent investigations into the nature of social justice have been developed by Mill, Rawls, Habermas, Dworkin, Gilligan, and Clement. Each attempts to develop principles of a just social order. The latter two develop a feminist ethic of care.

John Stuart Mill (1806–1873)

Mill’s approach to justice is inductive. One reasons from facts and observa- tions to arrive at principles.The primary principle of utility ( justice) he devel- ops cannot be grounded foundationally and hence must be developed indirectly and inductively by recourse to our senses and “internal consciousness.” In an essay on utilitarianism he states his primary principle of utility as “actions are right in proportion as they tend to promote happiness; wrong as they tend to produce the reverse of happiness” (Mill 1961, 198). He also states that “happi- ness is desirable, and the only thing desirable, as an end; all other things being only desirable a means to that end” (220). All other principles, which are also much more common, are secondary to this prime one.We should, he tells us, be guided by an action’s consequences rather than any particular personality traits of the person doing the action.Where secondary principles come into conflict, it is ultimately to the primary principle that we must look for resolution.

Society is supposed to promote social utility. Rights established draw from this contract. Society protects us because of social utility. As long as we seek, through our actions, happiness, without cost to anyone else, that should be protected by the terms of the contract. Ultimately, when conflict exists, the resolution should be by an appeal to the utility principle.“Just” means respect- ing others’ actions toward happiness, including rights belonging to him by law; thus “unjust” means anything that deprives the other of such things as personal property or liberty.As he says,“it is just to respect, unjust to violate” (228). His desert-based justice principle then would have it that “it is univer- sally considered just that each person should obtain that . . . which he deserves; and unjust that he should obtain a good, or be made to undergo an evil, which he does not deserve” (229).

Mill included within his five aspects of justice the idea of just deserts but did not leave justice in the hands of the free market (228–231). Instead, Mill included other essential elements of justice that indicated the inclusion of social institutions beyond the market. A related aspect of justice according to Mill is the right to liberty, property, and other belongings. This aspect is tempered with his second notion, which is that if someone is in possession of a thing or right by law that does not serve justice, then no injustice is com- mitted by the taking of that thing or right. An example of the competing notions here might be the legal right to slave ownership, which would not

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preclude the emancipation of a slave in service to justice.With these seemingly competing aspects of justice, Mill distinguished between legal and moral jus- tice.The remaining aspects of justice addressed the necessity of keeping agree- ments and impartiality. Mill’s aspects of justice required the engagement of civil and criminal legal structures in the keeping of justice.

John Rawls (1921–)

Rather than counterposing the social contract with the demise of the state of nature, Rawls located the entrance into the social contract as arriving through a hypothetical “original position” (Rawls 1971). He attempted to approach this position inductively. This original position allows for the just construction of the social contract through the devising of the terms of that contract in ignorance (“veil of ignorance”) of one’s position within the social structure.This position of being unaware of one’s social class, social position, and other characteristics (i.e. excluding gender) would presumably allow for the construction of a just contract. This contract would neither privilege nor oppress any position because to do so would not be in the interest of the creator of the contract, who is unaware of his position within the structure.

In this original position, Rawls (1963) tells us two principles of justice would be agreed upon. His first principle dealt with the right to equality and the second with the conditions for any inequality that might be included within or created by the social structure. His first principle of equality stipulated freedom to speech, assembly, private property, and freedom from arbitrary forms of arrest and seizure. His second principle determined that inequality is just only if it serves the common good. Further, he asserted that in order to be just, the better positions within an unequal system must be equally accessible to all members of that system.The distribution of wealth in society, for Rawls, must be to all’s advantage. He assumed hierarchical organizations, equally open to all, but that the distribution of income, status, and power do not have to be equal (“difference principle”). For Rawls, it is the first principle that would have priority over the second. Liberty, for example, can only be restricted for the purposes of protecting overall liberty or increasing it, not for increasing economic and social benefits, nor for the increasing benefit of the worst-off (see also Reiman 1990, 261).

The “difference principle” states that “social and economic inequalities are to be arranged so that they are . . . to the greatest benefit of the least advantaged” (302).This principle allows unequal distributions of wealth and income so long as it maximizes the benefits of the worst-off in a society. In short, economic and social inequalities are allowable as long as they maximize the benefits of the worst-off. In other words, whatever distributive scheme a society has in place, particularly where it allows inequalities, it should work in such a way that the worst-off benefit maximally.7

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Jurgen Habermas (1929–)

Habermas’s theory has some affinities with those of Rawls. He argued for the possible materialization of an “ideal speech situation” where each party in discussion or conflict may freely dialogue and reach consensus. Supposedly, out of this situation, much like Rawls’s original position of a “veil of igno- rance,” rational people will arrive at just and fair principles in resolving differences and establish what these principles are in fact. In this view, too, legitimate authority is rationally justifiable by developments within ideal speech situations.

For Habermas human beings enter discursive moments with differing truth claims, or what he calls validity claims to truth, correctness, veracity, comprehensibility (Habermas 1976, 161).Where background assumptions of each speaker are more in agreement, these are not questioned; in other words, a background consensus exists.Where it dissipates, however, conflict exists and consensus must be reestablished. Genuine consensus can only be reestablished in the ideal speech situation where each speaker, as a rational speaker, is an equal in terms of being able to contribute to the discussion. Habermas’s for- mulation is more in terms of how a practical consensus can be achieved. In this scenario, and apparently in agreement with Rawls, “there exists no indepen- dent criterion of justice.What is just is defined by the outcome of a consensus under certain specified conditions” (Phillips 1986, 82).And, like Rawls’s asser- tion, a moral or just principle “is valid only to the extent that it would be mutually acknowledged under certain ideal conditions—freedom, rationality, equality, knowledge—by all agents to whom it applies” (83). Habermas, too, acknowledged that this is only an ideal, rarely if ever attainable in practice, but something toward which we should strive. For Habermas, one does not need to incorporate a particular vision of a just society in order to have his consen- sus theory work, although implications are clearly abundant.

Ronald Dworkin (1931–)

Dworkin (1978) developed a liberal theory of justice. In his view, justice and law are connected. His justice in action view defers considerably to enlight- ened judges. He named his ideal judge “Hercules” and referenced this judge in his justice examples.

Dworkin made a distinction between a rule and a principle. A rule is applied in “an all-or-nothing fashion” (24), whereas a principle refers to a cri- teria that is external to rules (22). A principle is a standard that should be applied because it reflects justice and fairness. Judges, then, in difficult cases (the “hard cases”) often refer to principles when no rule seems operative or binding. But principles, too, are embedded in law, be they more general ori- entations. In these cases, the judge, Hercules, must decide by looking at inten- tions of a particular law and its imbedded principle.This too becomes the basis

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of future reasoning and decision making by judges (stare decises). In doing so, the judge is searching for fair and just principles that are assumed imbedded in the intentions of legislators, or founding fathers. So for Dworkin, the Herculean judge must integrate a particular rule, principles, and notions of justice in her or his decision making.

He then developed his idea of rights, stating that “certain moral rights are made into legal right by the Constitution” (190).These rights, therefore, have a moral status that stand outside the law. These rights are further divided in terms of abstract and concrete. Abstract rights, such as freedom of expression and assembly, have “a general political aim the statement of which does not indicate how that general aim is to be weighed or compromised in particular circumstances against other political aims” (93). Concrete rights are those that consider the various conflicts of interests and how to in fact operationalize their meaning in a particular setting.Thus freedom of assembly and expression can be restricted in time, place, and manner. Judges focus ultimately on con- crete rights. Justice and fairness, then, are seen in these contexts. And, ulti- mately, the credibility of the theory of which the judge makes use is based on “the greatest degree of moral acceptability in terms of a broader moral and political theory” (Phillips 1986, 292).This in turn is based on society’s existing “conventional morality” (Dworkin 1978, 40).Thus the judge must look to his or her conception of what this society-wide morality is at a given time in justly deciding the hard cases.

Feminist Ethic of Care

Feminist analyses such as those by Carol Gilligan and Grace Clement argue that a distinct difference exists between male and female notions of what con- stitutes justice. Formal equality before the law overlooks the factor that the male notion of justice is incorporated in discussions of what is just, and female notions are relegated to subordinate positions. Gilligan, Clement, and others indicate aspects of justice that differ by gender.

Carol Gilligan (1936–)

Gilligan (1982; see also Held 1995 and Tong 1993) is arguably the most prominent developer of a feminist ethics of care as a response to male forms of justice. Her ethics of care was developed as an alternative to an ethics of responsibility.The ethics of responsibility, most notably constituting contrac- tarian forms of justice and imbedded in formal law, focus on notions of equality, whereas the ethics of justice focus on attachment, need, and care. Thus two distinct forms of justice exist, with the latter in contemporary society being subordinate to the former. Gilligan’s position has been identified as essentialist, in that she is arguing the objective nature of the differences between the two.8 In In a Different Voice, Gilligan criticized Kohlberg’s studies

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on moral development as biased due to his focus only on males’ responses to various hypothetical moral situations. Her underlying theoretical framework was derived from Piaget (1965) and Kohlberg (1969) on the moral develop- ment of the child.9 She found distinct differences from which she concluded that girls and boys have different conceptions of justice from which they draw. And, further, one may then distinguish an ethic of care as a feminine ethic, and an ethic of justice as a masculine ethic. She posed the following specific short situation to her subjects to elicit their forms of moral reasoning:10

In Europe, a woman was near death from cancer. One drug might save her, a rare form of radium that a druggist in the same town had discov- ered.The druggist was charging $2000, ten times what the drug cost him to make.The sick woman’s husband, Heinz, went to everyone he knew to borrow the money, but he could only get together about half of what it cost. He told the druggist that his wife was dying and asked him to sell it cheaper or let him pay later. But the druggist said,“No.”The husband got desperate and broke into the man’s store to steal the drug for his wife. Should the husband have done that? Why? (Kohlberg 1969, 379)

From the answers received, Gilligan (1982) formulated specific forms of moral reasoning. One polarity tended toward abstract reasoning; the other tended toward concrete reasoning. Gilligan concluded that the ethics of justice demands reasoning from some abstract set of principles culminating into find- ing the rule necessary for an answer. It was more likely connected to boys’ responses. An ethic of care, on the other hand, is exhibited by subjects trying to discern the specific concrete and unique factors of the situation.This was connected with the girls’ responses. Gilligan further reasoned where moral judgments are based more on notions of equality we have the ethics of justice; where the moral judgment was based on attachment and needs factors, the ethic of care prevailed.The conclusion by Gilligan was that two distinct ethics, one more male oriented, one more female oriented due to socialization, were operative in moral development.

Grace Clement (1963–)

More recently, feminist analyses by Clement (1998) have examined the two ethics underlying Gilligan’s work to see if in fact they are two separate ethics of justice or they are interdependent. Stating at the outset that either ethic does not necessarily attach to either boys or girls, she nevertheless accepted the ethic of justice as attached to a masculine ethic and the ethic of care to a feminine ethic (3). She concluded that the two are complementary, that neither is subordinate to the other, that each informs the other, and that the two must remain in this oscillating state for more genuine justice to take place.

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Clement (1998) argued that the ethic of justice assumes much of the bag- gage of contractarian theorists: individualism, rationalism, autonomy, choice, importance of abstract thought, formal equality, reliance on rules, and human separateness. This is most often found in formal law and bureaucracies. The ethic of care, however, assumes relational factors—that is, attachment, connect- edness, relations, context—as most important; in other words, the interactional dynamics of specific human beings in contextualized settings are prioritized. This is most often found in family and friendship settings.The assumption in the ethics of care model is that the self is socially constituted in its ongoing relationships with various others.

Clement then examined whether there is or should be a privileging of one ethic over the other. Her answer is in the negative. As she informs us, “each ethic provides a check against the exaggerated, ideal type form of the other ethic . . . used alone, either ethic tends to result in forms of moral rea- soning which are both distorted and oppressive to women” (113). It is around this conclusion that much feminist analysis polarizes, some more essentialist, some more nonessentialist.The essentialist pole holds that there is a feminine ethic (care) and a masculine ethic ( justice), per Gilligan, while the nonessen- tialist pole contends that these ethics are interrelated and not essential to either gender identity.

Justice and Social Structure

Social structure was implicit in the ancients’ understandings of justice and explicit in the social contract theories. However, the following sets of ideas regarding justice include as a substantial part of their frameworks concrete social structures beyond the abstract and sometimes esoteric notions of the social contract explored above.These social structures are analyzed not as the outcome of a social contract or as necessarily the seat of justice, but as impact- ing upon our ideas regarding justice and the ways we think about what society is and what we may owe each other within a social contract. Some theorists here deal explicitly with social change and/or the need for social change in the pursuit of justice.

Herbert Spencer (1820–1903)

Spencer based his ideas of justice on economic assumptions of humanity that would define justice as receiving appropriate rewards (or punishments) in exchange for behaviors (Spencer 1897, 1969, 1978; see also Carneiro 1967; Miller 1976, 180–208). In his words, “each individual ought to receive the benefits and the evils of his own nature and consequent conduct” (1978, 17). His conception of justice was based on desert (Miller 1976, 186).There should be a proportional relation between act and result; benefit should be propor- tional to input.Those in a superior position, too, are rightful beneficiaries of

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this status, whereas those in inferior positions in life are so as a result of their deficiencies.

His notion of justice was to emerge from the evolutionary dynamics of a market society. Contrary to much conventional wisdom, it was he, rather than Darwin, that proclaimed the slogan “survival of the fittest.”According to Spencer, human beings are competitive, independent, utilitarian driven, and egotistical. Rewards gained in the competitive marketplace, then, are just according to the contribution one as well as other egotistically driven individuals make to soci- ety as a whole. Justice, thus, is naturally related to desert; the drive for profit in the marketplace by all will assure the progression of society to its perfection.The state should enforce contracts that were freely made.

Adam Smith (1723–1790)

Smith placed the free market at the center of justice, contending that when engaged in the free market each man would work toward his own best inter- est and that through this pursuit others would benefit (Smith 1776).This was his notion of the “invisible hand,” developed in his Wealth of Nations (1776). Individuals following their self-interest with minimal constraint—bounded only by law and justice—and competing with others similarly minded would assure and benefit a collective development. Smith wrote during a period of rapid industrialization and newly accumulating wealth. Smith’s analysis places attention on those profiting during this time, which suggests that those who are industrious, entrepreneurial, and engaged in the market could not only make a personal fortune but also provide for the employment and income of others.

In The Theory of Moral Sentiments, Smith explained his merit-based system of justice:“That whatever appears to be the proper object of gratitude, appears to deserve reward; and that, in the same manner, whatever appears to be the proper object of resentment, appears to deserve punishment” (1976, 136). In the same text he proclaimed that “the sense of merit seems to be a compounded sentiment, and to be made up of two distinct emotions; a direct sympathy with the sentiments of the agent, and an indirect sympathy with the gratitude of those who receive the benefit of his actions” (1976, 148). So sympathy was an essential ingredient of his merit-based system of justice. Accordingly, in the competition in the economic sphere, those who excelled should be rewarded proportional to their involvement and capacity to better compete with the other, and this should be acknowledged by others via sympathy with those persons’ abilities.

Peter Kropotkin (1842–1921)

Kropotkin has been identified as one of the most prominent promulgators of an anarchist philosophy (1902, 1924, 1926; see also Miller 1976, 209–244).

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His approach was positivistic and antitheological. It was both inductive (mak- ing observations and working toward generalizations and theories) and deduc- tive (making predictions based on a theory or principle that were subject to further verification). He was also inspired by Darwin’s and Spencer’s notions of the competition of species and the outcomes of such competition. However, in Mutual Aid (1902) Kropotkin outlined a history of man/woman in terms of cooperation centering on mutual support and aid. It was in mod- ern times that many of these social support institutions faltered or disappeared all together.Thus, for Kropotkin, it was cooperation, not war of all against all, that was the key motor to evolution.

By “mutual aid”Kropotkin meant a naturally (instinctively) based disposition to be concerned with the other, particularly the other’s needs. Supportive activ- ity toward the other is not based on potential rewards but instinctive feelings for solidarity. There is no further coherent foundational principle. Justice, according to Kropotkin, would arise from the foundational principle of mutual aid. Once principles such as treating others as you would have them treat you are instituted, mutual aid institutions are created.This principle is based on the generalized idea that one’s aid will find reciprocation on future occasions.

Kropotkin also wrote about self-sacrifice as a form of higher morality. There are times where one gives beyond expectations and beyond expectations of return (as existed in justice). Self-sacrifice draws from notions of mutual aid, justice principles, and the drive toward social solidarity, but goes beyond these notions to include human drive to excel, to create, to express.These are “the sources of progress and invention in human society” (Miller 1976, 218).

Kropotkin questioned whether law is necessarily a source of justice. Law, he informed us, is imposed by powerful groups and thus a model for exploita- tion. Since collective ownership assumes that not one person has an unequal contribution or share, it would be illusory to determine with precision each individual’s contribution, the very basis of merit or desert based systems of justice. Merit or desert based systems also tend to class distinctions and hierar- chies.According to Kropotkin, cooperation and mutual aid would assure dis- tribution.The key is the satisfaction of each person’s needs and the assurance of voluntary organization that is not imposed from above.Thus, Kropotkin argues that mutual aid institutions would continue to flourish in these environments. His goal was the creation of a society devoid of a state, law, criminal justice systems, and penal systems—all coercive institutions—and the development of self-regulating communities.

More recent applications of a needs-based system of justice have been promulgated by Dennis Sullivan and Larry Tifft (1980, 2001). They criticize desert-based justice as inherently hierarchical and divisive.Their needs-based justice is focused on more genuine responses to the unique needs of each human being. In encouraging alternative responses to lawbreaking, they suggest

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that all voices need to be addressed.This idea is particularly embraced in recently developed restorative justice type programs where mediation and conflict res- olution is the working principle of coming to terms with transgression. Sullivan and Tifft argue for mutual aid institutions where a “true self ” (self- actualizing and engaged in mutual aid) might emerge rather than the “power- based self,” which is the product of hierarchies, formal law, and social control institutions. Going beyond restorative justice, they argue that we need a trans- formative justice where social structural arrangements are critically examined and targets of transformation while still adequately responding to those indi- viduals who invest in doing harm to the other.

Karl Marx (1818–1883) and Frederick Engels (1820–1895)

These authors critically located social ideas and ideals including justice within the economic structure. Rather than accepting that the market produces justice, these theorists argued that the market produces injustices. Working class exploitation and alienation were the major injustices of interest to these writers, who not only described the mechanisms within the capitalist market, which produced inequalities, poverty, and other suffering among the working and lower classes, but also argued for a way to move beyond the injustices of capitalism to democratic nonexploitative social eras in which the majority, the working class, rule in their interest rather than the interests of the market (Tucker 1972).

Contrary to Smith, Marx and Engels saw the market as serving the inter- ests of the minority capitalist elite rather than the interests of justice. They therefore wrote that society must do away with the capitalist market to win a just social system.They did not argue that capitalism was unnecessary. On the contrary, Marx was clear that capitalism is a necessary phase of human devel- opment. It was described as a phase of institutionalized injustice and inequality but a necessary phase which could only be overcome through the collective actions of a conscious working class (Tucker 1972). Engels’s (1972) often over- looked study of the impact of social development on the lives of women is instructive and relevant to those seeking to understand the impact of economic structure on the particular injustices of sexism.

Postmodern Conceptions of Social Justice

Postmodern perspectives on social justice have been influenced by French scholars, predominantly from the late 1960s, 1970s, and 1980s (see Arrigo et al. 2005).They question the core assumptions embedded in modernist and premodernist thought.The Enlightenment (circa the 1700s) brought with it core assumptions that remain embedded in thinking about social justice, so say the postmodernists. Core assumptions of modernists include the privileging of the rational, logical subject, free will, and potential liberation by way of

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enlightened reasoning, formal liberties, and economic progress.These were all questioned by postmodernist thinkers who attempted to develop conceptions of justice from an alternative framework. Such thinkers as Nietzsche, Derrida, Lyotard, and Rorty were to advocate a reorientation in thinking about justice. Recognized were the decentered notion of the subject (the person is more determined than determining); nonlinear rather than linear historical develop- ments (genealogy); the manipulative effects of media, monopolies, and govern- mental agencies; restrictive assumptions embedded in the dominant ideology; and the imprisoning effects of dominant discourse.

For the postmodernists, social justice needs to be rethought around these new ontological premises. In this view, social justice must be examined in terms of the indeterminacies embedded in social structure, the dynamic notions of language and how consciousness is but its reflection, the multiplicity of lan- guages, and how principles of social justice must be rethought to include these logics.

Friedrich Nietzsche (1844–1900)

Perhaps one of the most cited thinkers in postmodern thought, Nietzsche rejected natural law and conceptions of justice that logically arose with it. As he informed us,“law of nature [is] a superstition,” and principles of justice are ideas created by differences in power and their interests (1974, 356; 1986, 216). Nature has been interpreted to justify given power inequalities.The individ- ual, in terms of a unitary, self-directing, determining subject is a fiction: there is no “being behind doing, affecting, becoming; the ‘doer’ is merely a fiction added to the deed” (1967, 45). Thus the notion of the juridical subject, the so-called reasonable man in law, would be seen as a legal fiction, serving inter- ests that do not necessarily enhance human development and well-being.

For Nietzsche, the development of justice principles underwent two his- torical phases. In the first stage, justice reflected competing powerful groups— those who were able to dictate contracts to the weaker and punish noncompliers—who established a standoff amongst themselves.“Justice (fair- ness) originates between parties of approximately equal power . . . Justice naturally derives from prudent concern with self-preservation” (Nietzsche 1986, 49).The second stage arrived with Christianity and its emphasis on pity, equality, fairness, and needs of the weaker.The weaker were to organize them- selves against the stronger in the development of conceptions of justice.The weaker (“slave morality”) now saw themselves as good; the stronger (“master morality”) were seen as bad and evil.Thereafter, history is about the conflict between the two and who can attain supremacy (hegemony) at any particular moment.

Nietzsche’s suggestion is that we should recognize a will to power by which human beings attempt to maximize forces for life preservation,

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affirmation, self-overcoming, and growth.Thus justice principles must respect the open and amorphous character of this ontology. Justice and law must be continually experimental and allow for the maximal possibilities of self- exploration, self-mastery, and self-overcoming. In this schema, the will to power knows nothing short of continuous transcendence. Conceptions of justice, therefore, cannot ever be rooted in some natural law or natural justice or foundational principles. These can be best exemplified in the Declaration of Independence, which references the laws of nature to ground its proclamation. These, for Nietzsche, are merely metaphysical baggage that hinders, not pro- motes, human development. All too often we create fictions that attempt to explain our indeterminate nature and cosmos.These fictions must be continu- ously confronted.

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