## 1. Justice: Mapping the Concept



'Justice' has sometimes been used in a way that makes it
virtually indistinguishable from rightness in general. Aristotle, for
example, distinguished between 'universal' justice that
corresponded to 'virtue as a whole' and
'particular' justice which had a narrower scope
(Aristotle, *Nicomachean Ethics*, Book V, chs. 1-2). The
wide sense may have been more evident in classical Greek than in
modern English. But Aristotle also noted that when justice was
identified with 'complete virtue', this was always
'in relation to another person'. In other words, if
justice is to be identified with morality as such, it must be morality
in the sense of 'what we owe to each other' (see Scanlon
1998). But it is anyway questionable whether justice should be
understood so widely. At the level of individual ethics, justice is
often contrasted with charity on the one hand, and mercy on the other,
and these too are other-regarding virtues. At the level of public
policy, reasons of justice are distinct from, and often compete with,
reasons of other kinds, for example economic efficiency or
environmental value.



As this article will endeavour to show, justice takes on different
meanings in different practical contexts, and to understand it fully
we have to grapple with this diversity. But it is nevertheless worth
asking whether we find a core concept that runs through all these
various uses, or whether it is better regarded as a family resemblance
idea according to which different combinations of features are
expected to appear on each occasion of use. The most plausible
candidate for a core definition comes from the *Institutes of
Justinian*, a codification of Roman Law from the sixth century AD,
where justice is defined as 'the constant and perpetual will to
render to each his due'. This is of course quite abstract until
further specified, but it does throw light upon four important aspects
of justice.


### 1.1 Justice and Individual Claims



First, it shows that justice has to do with how individual people are
treated ('to *each* his due'). Issues of justice
arise in circumstances in which people can advance claims - to
freedom, opportunities, resources, and so forth - that are
potentially conflicting, and we appeal to justice to resolve such
conflicts by determining what each person is properly entitled to
have. In contrast, where people's interests converge, and the
decision to be taken is about the best way to pursue some common
purpose - think of a government official having to decide how
much food to stockpile as insurance against some future emergency
- justice gives way to other values. In other cases, there may
be no reason to appeal to justice because resources are so plentiful
that we do not need to worry about allotting shares to individuals.
Hume pointed out that in a hypothetical state of abundance where
'every individual finds himself fully provided with whatever his
most voracious appetites can want', 'the cautious, jealous
virtue of justice would never once have been dreamed of' (Hume,
*An Enquiry Concerning the Principles of Morals*, pp.
183-4). Hume also believed - and philosophical controversy
on this point persists until today - that justice has no
place in close personal relationships, such as the family, where (it
is alleged) each identifies with the others' interests so
strongly that there is no need and no reason for anyone to make claims
of personal entitlement. (See Sandel 1982 for a defence of this view;
for a critique, see Okin 1989. See also the entry on
 feminist perspectives on reproduction and the family).



That justice is a matter of how each separate person is treated
appears to create problems for theories such as utilitarianism that
judge actions and policies on the basis of their overall consequences
aggregated across people - assuming that these theories wish to
incorporate rather than discard the idea of justice. In Section 4
below we examine how utilitarians have attempted to respond to this
challenge.



Although justice is centrally a matter of how individuals are treated,
it is also possible to speak of justice for groups - for example
when the state is allocating resources between different categories of
citizens. Here each group is being treated as though it were a
separate individual for purposes of the allocation.


### 1.2 Justice, Charity and Enforceable Obligation



Second, Justinian's definition underlines that just treatment is
something *due* to each person, in other words that justice is
a matter of claims that can be rightfully made against the agent
dispensing justice, whether a person or an institution. Here there is
a contrast with other virtues: we demand justice, but we beg for
charity or forgiveness. This also means that justice is a matter of
obligation for the agent dispensing it, and that the agent wrongs the
recipient if the latter is denied what is due to her. It is a
characteristic mark of justice that the obligations it creates should
be enforceable: we can be *made* to deliver what is due to
others as a matter of justice, either by the recipients themselves or
by third parties. However it overstates the position to make the
enforceability of its requirements a defining feature of justice (see
Buchanan 1987). On the one hand, there are some claims of justice that
seem not to be enforceable (by anyone). When we dispense gifts to our
children or our friends, we ought to treat each recipient fairly, but
neither the beneficiaries themselves nor anyone else can rightfully
force the giver to do so. On the other hand, in cases of extreme
emergency, it may sometimes be justifiable to force people to do more
than justice requires them to do - there may exist enforceable
duties of humanity. But these are rare exceptions. The obligatory
nature of justice generally goes hand-in-hand with enforceability.


### 1.3 Justice and Impartiality



The third aspect of justice to which Justinian's definition
draws our attention is the connection between justice and the
impartial and consistent application of rules - that is what the
'constant and perpetual will' part of the definition
conveys. Justice is the opposite of arbitrariness. It requires that
where two cases are relevantly alike, they should be treated in the
same way (We discuss below the special case of justice and lotteries).
Following a rule that specifies what is due to a person who has
features *X*, *Y*, *Z* whenever such a person is
encountered ensures this. And although the rule need not be
unchangeable - perpetual in the literal sense - it must be
relatively stable. This explains why justice is exemplified in the
rule of law, where laws are understood as general rules impartially
applied over time. Outside of the law itself, individuals and
institutions that want to behave justly must mimic the law in certain
ways (for instance, gathering reliable information about individual
claimants, allowing for appeals against decisions).


### 1.4 Justice and Agency



Finally, the definition reminds us that justice requires an agent
whose will alters the circumstances of its objects. The agent might be
an individual person, or it might be a group of people, or an
institution such as the state. So we cannot, except metaphorically,
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 in such a way that every outcome is a
manifestation of His will. Admittedly we are tempted to make
judgements of what is sometimes called 'cosmic injustice'
- say when a talented person's life is cut cruelly short
by cancer, or our favourite football team is eliminated from the
competition by a freak goal - but this is a temptation we should
resist.



This agency condition, however, is less restrictive than it might at
first appear. It by no means excludes the possibility that agents can
create injustice by omission - for example by failing to create
the institutions or to enact the policies that would deliver vital
resources to those who need them. Thus it is now common to speak of
'systemic injustice' in the case of bad outcomes that
no-one intends to occur but that could be prevented by a shift in
social norms or institutional practices. The agents in these cases are
all those who by acting together to change these things could invert
the injustice, but have so far failed to do so.


## 2. Justice: Four Distinctions



We have so far looked at four elements that are present in every use
of the concept of justice. Now it is time to consider some equally
important contrasts.


### 2.1 Conservative versus Ideal Justice



Philosophers writing on justice have observed that it has two
different faces, one conservative of existing norms and practices, the
other demanding reform of these norms and practices (see Sidgwick
1874/1907, Raphael 2001). Thus on the one hand it is a matter of
justice to respect people's rights under existing law or moral
rules, or more generally to fulfil the legitimate expectations they
have acquired as a result of past practice, social conventions, and so
forth; on the other hand, justice often gives us reason to change
laws, practices and conventions quite radically, thereby creating new
entitlements and expectations. This exposes an ambiguity in what it
means to 'render each his due'. What is 'due'
might be what a person can reasonably expect to have given existing
law, policy, or social practice, or it might be what the person should
get under a regime of ideal justice: this could mean what the person
deserves, or needs, or is entitled to on grounds of equality,
depending on which ideal principle is being invoked.



Conceptions of justice vary according to the weight they attach to
each of these faces. At one extreme, some conceptions interpret
justice as wholly concerned with what individuals can claim under
existing laws and social conventions: thus for Hume, justice was to be
understood as adherence to a set of rules that assign physical objects
to individuals (such as being the first possessor of such an object)
(Hume, *A Treatise of Human Nature*, Book III, Part II). These
rules can be explained by reference to the natural associations that
form in people's minds between persons and external objects, and
although the system of justice as a whole can be shown to be socially
useful, there are no relevant independent standards by which its
principles can be assessed (Hume briskly dismissed *equality*
and *merit* as principles for allocating property to persons).
In similar vein, Hayek argued that justice was a property of
individual behaviour, understood as compliance with the 'rules
of just conduct' that had evolved to enable a market economy to
function effectively. For Hayek, to speak of 'social
justice' as an ideal standard of distribution was as meaningless
as to speak of a 'moral stone' (Hayek 1976, p. 78)



At the other extreme stand conceptions of justice which posit some
ideal principle of distribution such as equality, together with a
'currency' specifying the respect in which justice
requires people to be made equally well off, and then refuse to
acknowledge the justice of any claims that do not arise directly from
the application of this principle. Thus claims deriving from existing
law or practice are dismissed unless they happen to coincide with what
the principle requires. More often, however, ideal justice is seen as
proposing principles by which existing institutions and practices can
be assessed, with a view to reforming them, or in the extreme case
abolishing them entirely, while the claims that people already have
under those practices are given some weight. Rawls, for example, whose
two principles of justice count as ideal principles for this purpose,
is at pains to stress that they are not intended to be applied in a
way that disregards people's existing legitimate expectations.
About the 'difference principle', which requires social
and economic inequalities to be regulated so that they work to the
greatest benefit of the least advantaged members of society, he
says:



It applies to the announced system of public law and statutes and not
to particular transactions or distributions, nor to the decisions of
individuals and associations, but rather to the institutional
background against which these transactions and decisions take place.
There are no unannounced and unpredictable interferences with
citizens' expectations and acquisitions. Entitlements are earned
and honored as the public system of rules declares. (Rawls 1993, p.
283)



Here we see Rawls attempting to reconcile the demands of conservative
and ideal justice. Yet he does not directly address the question of
what should happen when changing circumstances mean that the
difference principle requires new laws or policies to be enacted: do
those whose prior entitlements or expectations are no longer met have
a claim to be compensated for their loss? We could call this the
question of transitional justice (though this phrase is often used now
in a more specific sense to refer to the process of reconciliation
that may occur following civil war or other armed conflicts: see the
entry on
 transitional justice).


### 2.2 Corrective versus Distributive Justice



A second important contrast, whose pedigree reaches back at least as
far as Aristotle, is between justice as a principle for assigning
distributable goods of various kinds to individual people, and justice
as a remedial principle that applies when one person wrongly
interferes with another's legitimate holdings. Thus suppose Bill
steals Alice's computer, or sells Alice faulty goods which he
claims to be in perfect order: then Alice suffers a loss, which
justice demands that Bill should remedy by returning the computer or
fulfilling his contract honestly. Corrective justice, then,
essentially concerns a bilateral relationship between a wrongdoer and
his victim, and demands that the fault be cancelled by restoring the
victim to the position she would have been in had the wrongful
behaviour not occurred; it may also require that the wrongdoer not
benefit from his faulty behaviour. Distributive justice, on the other
hand, is multilateral: it assumes a distributing agent, and a number
of persons who have claims on what is being distributed. Justice here
requires that the resources available to the distributor be shared
according to some relevant criterion, such as equality, desert, or
need. In Aristotle's example, if there are fewer flutes
available than people who want to play them, they should be given to
the best performers (Aristotle, *The Politics*, p. 128). In
modern debates, principles of distributive justice are applied to
social institutions such as property and tax systems, which are
understood as producing distributive outcomes across large societies,
or even the world as a whole.



The conceptual distinction between distributive and corrective justice
seems clear, but their normative relationship is more difficult to pin
down (see Perry 2000, Ripstein 2004, Coleman 1992, chs. 16-17).
Some have claimed that corrective justice is merely instrumental to
distributive justice: its aim is to move from a situation of
distributive injustice brought about by the faulty behaviour to one
that is more nearly (if not perfectly) distributively just. But this
view runs into a number of objections. One is that so long as Alice
has a legitimate title to her computer, her claim of corrective
justice against Bill does not depend on her having had, prior to the
theft, the share of resources that distributive justice ideally
demands. She might be richer than she deserves to be, yet corrective
justice still require that the computer be returned to her. In other
words, corrective justice may serve to promote conservative rather
than ideal justice, to use the distinction introduced in 2.1. Another
objection is that corrective justice requires the wrongdoer himself 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 - giving Alice one of
even-more-undeservedly-rich Charles's computers, for example.
This underlines the bilateral nature of corrective justice, and also
the fact that it comes into play in response to faulty behaviour on
someone's part. Its primary demand is that people should not
lose out because others have behaved wrongfully or carelessly, but it
also encompasses the idea that 'no man should profit by his own
wrong'. If Alice loses her computer in a boating accident, she
might, under an insurance scheme, have a claim of
*distributive* justice to a new machine, but she has no claim
of *corrective* justice.



If corrective justice cannot be subsumed normatively under
distributive justice, we need to explain its value. What is achieved
when we make Bill return the computer to Alice? Aristotle
(*Nicomachean Ethics*, Book V, ch. 4) suggested that corrective
justice aims to restore the two parties to a position of equality; by
returning the computer we cancel both Bill's unjustified gain
and Alice's unjustified loss. But this assumes that the computer
can be returned intact. Corrective justice requires that Alice be made
no worse off than she was before the theft, even if that means Bill
suffering an absolute loss (e.g. by paying for a new computer if he
has damaged Alice's). Aristotle himself recognized that the idea
of evening out gain and loss made no literal sense in a case where one
person assaults another and has to compensate him for his injury
- there is no 'gain' to be redistributed. It seems,
then, that the value of corrective justice must lie in the principle
that each person must take responsibility for his own conduct, and if
he fails to respect the legitimate interests of others by causing
injury, he must make good the harm. In that way, each person can plan
her life secure in the knowledge that she will be protected against
certain kinds of external setbacks. Philosophers and lawyers writing
on corrective justice disagree about what standard of responsibility
should apply - for example whether compensation is required only
when one person wilfully or negligently causes another to suffer loss,
or whether it can also be demanded when the perpetrator displays no
such fault but is nevertheless causally responsible for the
injury.


### 2.3 Procedural versus Substantive Justice



A third distinction that must be drawn is between the justice of the
procedures that might be used to determine how benefits and burdens of
various kinds are allocated to people, and the justice of the final
allocation itself. It might initially seem as though the justice of a
procedure can be reduced to the justice of the results produced by
applying it, but this is not so. For one thing, there are cases in
which the idea of an independently just outcome makes no sense. A coin
toss is a fair way of deciding who starts a game, but neither the
Blues nor the Reds have a claim of justice to bat first or kick off.
But even where a procedure has been shaped by a concern that it should
produce substantively just outcomes, it may still have special
properties that make it intrinsically just. In that case, using a
different procedure to produce the same result might be objectionable.
In an influential discussion, John Rawls contrasted *perfect
procedural justice*, where a procedure is such that if it is
followed a just outcome is guaranteed (requiring the person who cuts a
cake to take the last slice himself is the illustration Rawls
provides), *imperfect procedural justice*, where the procedure
is such that following it is likely, but not certain, to produce the
just result, and *pure procedural justice*, such as the
coin-tossing example, where there is no independent way to assess the
outcome - if we call it just, it is only on the grounds that it
has come about by following the relevant procedure (Rawls 1971, 1999,
SS 14).



Theories of justice can then be distinguished according to the
relative weight they attach to procedures and substantive outcomes.
Some theories are purely procedural in form. Robert Nozick
distinguished between historical theories of justice, end-state
theories, and patterned theories in order to defend the first against
the second and third (Nozick 1974). An end-state theory defines
justice in terms of some overall property of a distribution (of
resources, welfare, etc.) - for example whether it is
egalitarian, or whether the lowest position in the distribution is as
high as it can be, as Rawls' difference principle requires. A
patterned theory looks at whether what each receives as part of a
distribution matches some individual feature such as their desert or
their need. By contrast, an historical theory asks about the process
by which the final outcome has arisen. In Nozick's particular
case, a distribution of resources is said to be just if everyone
within its scope is entitled to what they now own, having acquired it
by legitimate means - such as voluntary contract or gift -
from someone who was also entitled to have it, leading back eventually
to a just act of acquisition - such as labouring on a plot of
land - that gave the first owner his valid title. The shape of
the final distribution is irrelevant: according to Nozick, justice is
entirely a matter of the sequence of prior events that created it (for
critical assessments of Nozick's position, see Paul 1982, Wolff
1991, Cohen 1995, chs. 1-2).



For most philosophers, however, 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. For instance, the procedures that together
make up a fair trial are justified on the grounds that for the most
part they produce outcomes in which the guilty are punished and the
innocent are acquitted. Yet even in these cases, we should be wary of
assuming that the procedure itself has no independent value. We can
ask of a procedure whether it treats the people to whom it is applied
justly, for example by giving them adequate opportunities to advance
their claims, not requiring them to provide personal information that
they find humiliating to reveal, and so forth. Studies by social
psychologists have shown that in many cases people care more about
being treated fairly by the institutions they have to deal with than
about how they fare when the procedure's final result is known
(Lind and Tyler 1988).


### 2.4 Comparative versus Non-Comparative Justice



Justice takes a comparative form when to determine what is due to one
person we need to look at what others can also claim: to determine how
large a slice of pie is rightfully John's, we have to know how
many others have a claim to the pie, and also what the principle for
sharing it should be - equality, or something else. Justice
takes a non-comparative form when we can determine what is due to a
person merely by knowing relevant facts about that particular person:
if John has already been promised the whole of the pie, then that is
what he can rightfully claim for himself. Some theories of justice
seem to imply that justice is always a comparative notion - for
example when it is said that justice consists in the absence of
arbitrary inequality - whereas others imply that it is always
non-comparative. But conceptually, at least, both forms seem
admissible; indeed we can find cases in which it appears we have to
choose between doing justice comparatively and doing it
non-comparatively (see Feinberg 1974; for a critical response, see
Montague 1980). For example, we might have several candidates all of
whom are roughly equally deserving of an academic honour, but the
number of honours we are permitted to award is smaller than the number
of candidates. If we honour some but not others, we perpetrate a
comparative injustice, but if to avoid doing so we honour no-one at
all, then each is treated less well than they deserve, and so unjustly
from a non-comparative perspective.



Theories of justice can then be categorised according to whether they
are comparative, non-comparative, or neither. Principles of equality
- principles requiring the equal distribution of some kind of
benefit - are plainly comparative in form, since what is due to
each person is simply an equal share of the benefit in question rather
than any fixed amount. In the case of principles of desert, the
position is less straightforward. These principles take the form
'*A* deserves *X* by virtue of *P*', where
*X* is a mode of treatment, and *P* is a personal
characteristic possessed by *A* (Feinberg 1970). In the case of
both *X* and *P*, we can ask whether they are to be
identified comparatively or non-comparatively. Thus what *A*
deserves might either be an entitlement, or an absolute amount of some
benefit - 'a living wage', say - or it might
be a *share* of some collective benefit, or a multiple or
fraction of what others are receiving - 'twice what
*B* is getting', say. Turning to *P*, or what is often
called the desert basis, this may be a feature of *A* that we can
identify without reference to anyone else, or it may be a comparative
feature, such as being the best student in a graduating class. So
desert-based claims of justice might take one of four different forms
depending on whether the basis of desert and/or the deserved mode of
treatment is comparative or non-comparative (see Olsaretti 2003 for
essays that address this question; for a more advanced treatment, see
Kagan 2012, Part III).



Among principles of justice that are straightforwardly non-comparative
are 'sufficiency' principles which hold that what justice
requires is that each person should have 'enough', on some
dimension or other - for instance, have all of their needs
fulfilled, or have a specified set of capabilities that they are able
to exercise (for a general defence of sufficiency, though not one that
links it specifically to justice, see Frankfurt 2015; for a critique,
see Casal 2007). Such principles, however, need to be supplemented by
other principles, not only to tell us what to do with the surplus
(assuming there is one) once everyone has sufficient resources, but
also to guide us in situations where there are too few resources to
bring everyone up to the sufficiency threshold. Should we, for
example, maximise the number of people who achieve sufficiency, or
minimise the aggregate shortfall suffered by those in the relevant
group? Unless we are prepared to say that these are not matters of
justice, a theory of justice that contains only the sufficiency
principle and nothing else looks incomplete.



Some theories of justice cannot readily be classified either as
comparative or as non-comparative. Consider one part of Rawls'
theory of social justice, the difference principle, which as noted
above requires that social and economic inequalities be arranged to
the greatest benefit of the least advantaged (Rawls 1971, 1999,
SS12-13). Under this principle, ideally just shares are
calculated by determining what each person would receive under the set
of social institutions whose economic effect is to raise the worst off
person to the highest possible level. This is neither a fixed amount,
nor one that depends in any direct sense on what other individuals are
receiving, or should receive. Applying the difference principle does
require making comparisons, but these are comparisons between the
effects of different social institutions - say different tax
laws, or different ways of defining property rights - not
between individual people and the amounts of benefit they are
receiving. We might call theories of this kind 'holistic'
or 'systemic'.


## 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*. We have already, when discussing Hume, encountered the idea
that there might be circumstances in which justice becomes irrelevant
- circumstances in which resources are so abundant that it is
pointless to allocate individual shares, or, as Hume also believed, in
which resources are so scarce that everyone is permitted to grab what
he can in the name of self-preservation. But even in circumstances
that are less extreme than these, questions about scope arise. Who can
make claims of justice, and who might have the corresponding
obligation to meet them? Does this depend on the kind of thing that is
being claimed? If comparative principles are being applied, who should
be counted as part of the comparison group? Do some principles of
justice have universal scope - they apply whenever agent
*A* acts towards recipient *B*, regardless of the
relationship between them - while others are contextual in
character, applying only within social or political relationships of a
certain kind? The present section examines some of these questions in
greater detail.


### 3.1 Human vs non-human animals



What does a creature have to do, or be like, to be included within the
scope of (at least some) principles of justice? Most past philosophers
have assumed that the line should be drawn so as to exclude all
non-human animals, but more recently some have been prepared to defend
'justice for animals' (Nussbaum 2006, ch. 6; Garner 2013).
Against this, Rawls asserts that although we have 'duties of
compassion and humanity' towards animals and should refrain from
treating them cruelly, nonetheless they are 'outside the scope
of the theory of justice' (Rawls 1971, p. 512; Rawls 1999, p.
448). How could this claim be justified?



We can focus our attention either on individual features that humans
possess and animals lack, and that might be thought relevant to their
inclusion within the scope of justice, or on asymmetries in the
relationship between humans and other animals. To begin with the
latter, Hume claimed that the domination humans exercised over animals
- such that an animal could only possess something by virtue of
our permission - meant that we were 'bound by the laws of
humanity to give gentle usage to these creatures, but should not,
properly speaking, lie under any restraint of justice with regard to
them' (Hume, *Enquiry*, p. 190). For Rawls and those
influenced by him, principles of distributive justice apply among
agents who are related to one another as participants in a
'cooperative venture for mutual advantage', and this might
seem to exclude animals from the scope of such principles. Critics of
this view have pointed to cases of human-animal co-operation
(Donaldson and Kymlicka 2011, Valentini 2014); however these arguments
focus mainly or entirely on the special case of *dogs*, and it
seems implausible to generalise from them in an attempt to show that
human-animal relationships generally have a co-operative
character.



But the claim that justice only applies to participants in
co-operative practices is anyway vulnerable to the objection that it
risks excluding seriously disabled people, people living in isolated
communities, and future generations from the scope of justice, so it
does not seem compelling as a claim about justice in general (see
further below). Might there be other reasons why animals cannot make
claims of justice on us? Another Rawls-inspired suggestion is that
animals lack the necessary moral powers, in particular the capacity to
act on principles of justice themselves. They cannot distinguish what
is justly owed to them from what is not; and they cannot determine
what they owe to others - whether to humans or to other
non-human animals - as a matter of justice. This suggestion
interprets justice as involving a kind of reciprocity: an agent to
whom justice is due must also in principle be an agent who could
dispense justice to others, by virtue of having the relevant capacity,
even if for physical reasons - such as suffering from severe
disability - they cannot do so in practice.



If this suggestion is rejected, and we allow that some animals, at
least, should be included within the scope of justice, we can then ask
about the form that justice should take in their cases. Using the
distinction drawn in 2.4 above, it appears that justice for animals
must be non-comparative. For example, we might attribute rights to the
animals over whom we exercise power - rights against cruel
treatment, and rights to food and shelter, for instance. This would
involve using a sufficiency principle to determine what animals are
owed as a matter of justice. It is much less plausible to think that
comparative principles might apply, such that giving special treats to
one cat but not another could count as an injustice.


### 3.2 Relational vs Non-Relational Justice



The Rawlsian view introduced in the previous section, which holds that
principles of social justice apply among people who are engaged
together in a co-operative practice, is a leading example of a
relational theory of justice. Other theories offer different accounts
of the relevant justice-generating feature: for example, Nagel has
argued that principles of distributive justice apply among people who
by virtue of being citizens of the same state are required both to
comply with, and accept responsibility for, the coercive laws that
govern their lives (Nagel 2005). In both cases, the claim being made
is that when people stand in a certain relationship to one another,
they become subject to principles of justice whose scope is limited to
those within the relationship. In particular, *comparative*
principles apply within the relationship, but not beyond it. If
*A* stands in a relationship (of the right kind) to *B*,
then it becomes a matter of justice how *A* is treated relative
to *B*, but it does not matter in the same way how *A* is
treated relative to *C* who stands outside of the relationship.
Justice may still require that *C* be given treatment of a
certain kind, but that will be justice in its non-comparative
guise.



Whether 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, or, in contrast, whether distributive
principles only apply to people who are related together as members of
the same society or citizens of the same state. For example, might the
global inequalities that exist between rich and poor in today's
world be unjust simply *as* inequalities, or are they unjust
only insofar as they prevent poor people from living lives that we
judge to be acceptable? (see entries on
 international distributive justice
 and
 global justice)
 So much hangs on the question whether, and if so in virtue of what,
distributive justice has a relational character. What reason can be
given for thinking that it does?



Suppose we have two people *A* and *B*, of whom one is
significantly better off than another - has greater
opportunities or a higher income, say. Why should this be a concern of
justice? It seems it will not be a concern unless it can be shown that
the inequality between *A* and *B* can be attributed to the
behaviour of some agent, individual or collective, whose actions or
omissions have resulted in *A* being better off than *B*
- in which case we can ask whether the inequality between them
is justifiable, say on grounds of their respective deserts. This
reiterates the claim in 1.4 above that without an agent to whom the
outcome can be attributed there can only be justice or injustice in a
metaphorical, 'cosmic', sense. Relational theorists claim
that when people associate with one another in the relevant way, they
become agents of justice. On a small scale they can organize
informally to ensure that each receives what is due to him relative to
the rest. On a larger scale, distributive justice requires the
creation of legal and other institutions to achieve that outcome.
Moreover failure to co-ordinate their actions in this way is likely to
be a source of injustice by omission.



Debates about the scope of justice then become debates about whether
different forms of human association are of the right kind to create
agency in the relevant sense. Take the question of whether principles
of social justice should apply to market transactions. If we see the
market as a neutral arena in which many individual people freely
pursue their own purposes, then the answer will be No. The only form
of justice that arises will be justice in the conduct of each agent,
who must avoid inflicting harm on others, must fulfil her contracts,
and so forth. Whereas if we see the market as governed by a
humanly-constructed system of rules that the participants collectively
have the power to change - by legislation, for example -
then we cannot avoid asking whether the outcomes it currently produces
meet relevant standards of distributive justice, whatever we take
these to be. A similar issue arises in the debate about over
principles of global justice referred to above: is the current world
order such that it makes sense to regard humanity as a whole as a
collective agent responsible for the distributive outcomes it allows
to occur?


### 3.3 Individuals vs Institutions



Once institutions are established for the purpose (among other things)
of delivering justice on a large scale, we can ask what duties of
justice individual people have in consequence. Is their duty simply to
support the institutions, and comply with whatever rules of conduct
apply to them personally? Or do they have further duties to promote
justice by acting directly on the relevant principles in their daily
lives? No one doubts that *some* duties of justice fall
directly on individuals, for example duties not to deceive or defraud
when engaging in commercial transactions (and duties of corrective
justice where behaviour is faulty), or duties to carry out one's
fair share of an informally organized project from which one expects
to benefit, such as cleaning up the neighbourhood park. Others fall on
them because they are performing a role within a social institution,
for example the duty of an employer not to discriminate on grounds of
race or gender when hiring workers, or the duty of a local government
officer to assign public housing to those in greatest need. But what
is much more in dispute is whether individual people have more
extensive duties to promote social justice (for contrasting views, see
Cohen 2008, ch. 3, Murphy 1998, Rawls 1993, Lecture VII, Young 2011,
ch. 2).



Consider two cases: the first concerns parents who confer advantages
on their children in ways that undermine fair equality of opportunity.
If the latter principle of justice requires, to cite Rawls, that
'those who have the same level of talent and ability and the
same willingness to use these gifts should have the same prospects of
success regardless of their social class of origin' (Rawls 2001,
p. 44) then there are myriad ways in which some parents can bestow
advantages on their children that other parents cannot -
financial benefits, educational opportunities, social contacts, and so
forth - that are likely to bring greater success in later life.
Are parents therefore constrained as a matter of justice to avoid
conferring at least some of these advantages, or are they free to
benefit their children as they choose, leaving the pursuit of equal
opportunities entirely in the hands of the state (for a careful
analysis, see Brighouse and Swift 2014)?



The second example concerns wage differentials. Might individuals
whose talents can bring them high rewards in the labour market have a
duty not to make use of their bargaining power, but instead be willing
to work for a fair wage - which if fairness is understood in
egalitarian terms might mean the same wage as everyone else (perhaps
with extra compensation for those whose labour is unusually
burdensome)? Rawls, as we saw above, argued that economic justice
meant arranging social and economic inequalities to the greatest
benefit of the least advantaged, and in formulating the principle in
this way he assumed that some inequalities might serve as incentives
to greater production that would also raise the position of the
worst-off group in society. But if individuals were willing to forego
incentives, and so economic inequalities served no useful purpose,
then the arrangement that worked to the greatest benefit of the
(otherwise) least advantaged would be one of strict equality. Cohen
(2008) argues that Rawls' position is internally inconsistent.
As citizens designing our institutions we are supposed to be guided by
the difference principle, but as private actors in the marketplace, we
are permitted to ignore that principle and bargain for higher wages,
even though doing so will work to the disadvantage of the worst-off
group. Justice, according to Cohen, requires us to embrace an ethos of
service that disdains material incentives.



Why might we hesitate before agreeing that in cases such as these,
justice requires people to refrain from doing things that they are
permitted to do by the public rules of their society (passing on
benefits to their children; seeking higher wages)? One reason is that
the refraining is only going to have a significant effect if it is
practised on a large scale, and individuals have no assurance that
others will follow their example; meanwhile they (or their children)
will lose out relative to the less scrupulous. A connected reason has
to do with publicity: it may be hard to detect whether people are
following the required ethos or not (see Williams 1998). Is the person
who sends her child to a private school because she claims he has
special needs that the local state school cannot meet being sincere,
or is she just trying to buy him comparative advantage? How can we
tell whether the person who claims more money, but merely, he says, as
compensation for the unusual stress that his work involves, is
reporting honestly? (for Cohen's response, see Cohen 2008, ch.
8) It appears, then, that there are principles of justice that apply
to what Rawls calls 'the basic structure of society [as] a
public system of rules' that do not apply in the same way to the
personal behaviour of the individuals who live within that structure.
Attending to the *scope*, as well as the *content*, of
justice is important.


### 3.4 Recognition vs. Redistribution



Recent philosophical writing on justice has drawn attention to forms
of injustice that do not involve the material treatment that people
receive, either from other persons or from institutions, but the harms
they suffer through failures of recognition. They are impacted by
social norms and social practices that diminish their sense of agency
and induce them to see themselves as of lesser value than others. Here
then justice is understood as being adequately and appropriately
recognized, and injustice as involving failures of recognition, or in
some cases 'misrecognition', when a person is placed in a
category or assigned an identity that is not their own. In one
influential formulation of this idea, 'it is unjust that some
individuals and groups are denied the status of full partners in
social interaction simply as a consequence of institutionalized
patterns of cultural value in whose construction they have not equally
participated and which disparage their distinctive characteristics or
the distinctive characteristics assigned to them' (Fraser in
Fraser and Honneth 2003, p. 29).



What, then, does it mean to be recognized? In general it means to be
viewed and treated by others in the way that is appropriate to the
features that you possess, but most philosophers regard recognition as
multidimensional. In particular, they distinguish between being
recognized as an equal, where a person is accorded the kind of
standing that gives them an equal status with other members of the
relevant group, and being recognized for having characteristics,
achievements or an identity that may be uniquely their own.
Recognition in this second sense may involve the unequal granting of
social esteem. Justice as recognition, therefore, is internally
complex. At the social level, Axel Honneth distinguishes 'three
forms of social recognition, based in the sphere-specific principles
of love, equal legal treatment, and social esteem' (Fraser and
Honneth 2003 p. 180)



The question that arises is how best to understand the relationship
between justice of this kind and distributive justice, involving the
allocation of material resources and so forth. For Honneth, justice as
recognition is understood expansively so that it can also capture
issues of economic justice, the thought being that the harm inflicted
when, say, labour is not adequately rewarded can be understood as a
failure to offer adequate recognition of the worker's social
contribution. For Nancy Fraser, by contrast, recognition and
redistribution are seen as two mutually irreducible but jointly
necessary conditions for social justice. Failures of recognition can
be experienced by some among the economically privileged - such
as 'the African-American Wall Street banker who cannot get a
taxi to pick him up' (Fraser and Honneth 2003, p. 34). Justice
as recognition requires cultural shifts in the way that different
forms of identity and different types of achievement are valued that
are independent of the institutional changes required to achieve
distributive justice.



A particular form of recognitional injustice is *epistemic*
injustice as diagnosed by Miranda Fricker (Fricker 2007). This occurs
when someone is wronged in their capacity as a source of knowledge,
and it takes two main forms: testimonial injustice and hermeneutic
injustice. As Fricker explains 'testimonial injustice occurs
when prejudice causes a hearer to give a deflated level of credibility
to a speaker's word; hermeneutical injustice occurs at a prior
stage when a gap in collective interpretive resources puts someone as
at an unfair disadvantage when it comes to making sense of their
social experiences' (Fricker 2007, p. 1). She argues that
testimonial injustice matters for two reasons. First, the person who
suffers from it is less able to protect or advance their interests
- for example they are less likely to be believed when having to
defend themselves in court. Second, since others are unwilling to
regard them as competent sources of knowledge, they may lose trust in
their own capacity to know, leading in some cases to 'prolonged
self-doubt and loss of intellectual confidence'.



Hermeneutical injustice arises in the context of unequal relationships
in which the subordinated party lacks the concept or concepts needed
to make sense of their experience (and thereby to challenge their
subordination). Fricker uses the example of a woman who suffered
sexual harassment at the time before feminists had developed that
concept, and so had no adequate word to describe what she was
experiencing. Hermeneutical injustice matters most when it is
systematic, brought about by power inequalities that leave certain
groups 'hermeneutically marginalised'. However she treats
epistemic justice as a virtue that individual hearers can develop, in
contrast to recognition theorists like Fraser and Honneth for whom
achieving recognitional justice requires collective action to change
social and cultural norms on the part of misrecognized groups.


## 4. Utilitarianism and Justice



Can justice be understood in utilitarian terms? This may in the first
place depend on how we interpret utilitarianism. We treat it here as a
normative theory whose aim is to supply a criterion - the
greatest happiness principle - that can be used, directly or
indirectly, both by individuals and by institutions (such as states)
in deciding what to do, rather than simply as a tool for evaluating
states of affairs. Utilitarianism cannot plausibly provide a theory of
justice unless it is interpreted in this action-guiding way, in light
of what was said above about justice and agency. We also assume that
the most likely candidate will be a rule-utilitarian view that treats
principles of justice as belonging to the set of rules which when
followed by the relevant agents will tend to produce the greatest
total utility (for different ways of formulating this view, see the
entry on
 rule consequentialism).


### 4.1 Accommodating intuitions about justice



Most utilitarians have regarded it as part of their task in defending
utilitarianism to show that it can both accommodate and explain much
of what we intuitively believe about justice. This is certainly true
of two of the greatest among them, John Stuart Mill and Sidgwick, both
of whom went to considerable lengths to show that familiar principles
of justice could be given a utilitarian rationale (Mill
*Utilitarianism*, ch. 5; Sidgwick 1874/1907, Book III, ch.5).
Bentham, in contrast, was more cavalier: 'justice, in the only
sense in which it has a meaning, is an imaginary personage, feigned
for the convenience of discourse, whose dictates are the dictates of
utility, applied to certain particular cases' (*The
Principles of Morals and Legislation*, pp. 125-6). If we
follow the lead of Mill and Sidgwick in wishing to take seriously how
justice is commonly understood, the utilitarian has two challenges to
face. First he or she must show that the demands of justice as
commonly understood correspond roughly to the rules that when followed
by persons, or implemented by institutions, are most conducive to the
greatest happiness. They need not mirror the latter exactly, because
utilitarians will argue, as both Mill and Sidgwick did, that our
intuitions about justice are often ambiguous or internally
inconsistent, but there must be enough overlap to warrant the claim
that what the utilitarian theory can accommodate and explain is indeed
*justice*. (As Sidgwick (1874/1907, p. 264) put it, 'we
may, so to speak, clip the ragged edge of common usage, but we must
not make excision of any considerable portion'.) Second, some
explanation must be given for the distinctiveness of justice. Why do
we have a concept that is used to mark off a particular set of
requirements and claims if the normative basis for these requirements
and claims is nothing other than general utility? What accounts for
our intuitive sense of justice? The task confronting the utilitarian,
then, is to systematize our understanding of justice without
obliterating it.



By way of illustration, both Mill and Sidgwick recognize that
*desert*, of both reward and punishment, is a key component of
common understandings of justice, but they argue that if we remain at
the level of common sense when we try to analyse it, we run into
irresolvable contradictions. For instance, we are inclined to think
that a person's deserts should depend on what they have actually
achieved - say the economic value of what they have produced
- but also, because achievement will depend on factors for which
the person in question can claim no credit, such as inborn talent,
that their deserts should depend only on factors for which they are
directly responsible, such as the amount of effort they expend. Each
of these conceptions, when put into practice, would lead to a quite
different schedule of rewards, and the only means to escape the
impasse, these utilitarians claim, is to ask which schedule will
generate most utility by directing people's choices and efforts
in the most socially productive way. Similar reasoning applies to the
principles of punishment: the rules we should follow are the rules
that are most conducive to the ends for which punishment is
instituted, such as deterring crime.



To explain the distinctiveness of justice, Mill suggests that it
designates moral requirements that, because of their very great
importance to human well-being, people have a right to have
discharged, and are therefore matters of perfect obligation. A person
who commits an injustice is always liable to punishment of some kind,
he argues. So he explains our sense of justice in terms of the
resentment we feel towards someone who breaches these requirements.
Sidgwick, who laid greater stress than Mill on the connection between
justice and law, also underlined the relationship between justice and
gratitude, on one side, and resentment, on the other, in order to
capture the way in which our concern for justice seems to differ from
our concern for utility in general.


### 4.2 Utilitarian theories of justice: three problems



Yet despite these efforts to reconcile justice and utility, three
serious obstacles still remain. The first concerns what we might call
the currency of justice: justice has to do with the way that tangible
benefits and burdens are assigned, and not with the happiness or
unhappiness that the assignees experience. It is a matter of justice,
for example, that people should be paid the right amount for the jobs
that they do, but, special circumstances aside, it is no concern of
justice that John derives more satisfaction from his fairly-earned
income than Jane does from hers (but see Cohen 1989 for a different
view). There is so to speak, a division of labour, under which rights,
opportunities, and material benefits of various kinds are allocated by
principles of justice, while the conversion of these into units of
utility (or disutility) is the responsibility of each individual
recipient (see Dworkin 2000, ch. 1). Utilitarians will therefore 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, rather than happiness itself.



The second obstacle is that utilitarianism judges outcomes by
totalling up utility levels, and has no independent concern for how
that utility is distributed between persons. So even if we set aside
the currency issue, utilitarian theory seems unable to capture
justice's demand that *each* should receive what is due
to her regardless of the total amount of benefit this generates.
Defenders of utilitarianism will argue that when the conduct-guiding
rules are being formulated, attention will be paid to distributive
questions. In particular, when resources are being distributed among
people we know little about individually, there are good reasons to
favour equality, since in most cases resources have diminishing
marginal utility - the more of them you have, the less
satisfaction you derive from additional instalments. Yet this is only
a contingent matter. If some people are very adept at turning
resources into well-being - they are so-called 'utility
monsters' - then a utilitarian should support a rule that
privileges them. This seems repugnant to justice. As Rawls famously
put the general point, 'each member of society is thought to
have an inviolability founded on justice which....even the
welfare of every one else cannot override' (Rawls 1971, p. 28;
Rawls 1999, pp. 24-25).



The third and final difficulty stems from utilitarianism's
thoroughgoing consequentialism. Rules are assessed strictly in the
light of the consequences of adopting then, not in terms of their
intrinsic properties. Of course, when agents follow rules, they are
meant to do what the rule requires rather than to calculate
consequences directly. But for a utilitarian, it is never going to be
a good reason for adopting a rule that it will give people what they
deserve or what they are entitled to, when desert or entitlement are
created by events in the past, such as a person's having
performed a worthwhile action or entered an agreement.
Backward-looking reasons have to be transmuted into forward-looking
reasons in order to count. If a rule such as *pacta sunt
servanda* ('agreements must be kept') is going to be
adopted on utilitarian grounds, this is not because there is any
inherent wrongness in defaulting on a compact one has made, but
because a rule that compacts must be kept is a useful one, since it
allows people to co-ordinate their behaviour knowing that their
expectations about the future are likely to be met. But justice,
although not always backward-looking in the sense explained, often is.
What is due to a person is in many cases what they deserve for what
they have done, or what they are entitled to by virtue of past
transactions. So even if it were possible to construct a
forward-looking rationale for having rules that closely tracked desert
or entitlement as these are normally understood, the utilitarian still
cannot capture the *sense* of justice - why it matters
that people should get what is due to then - that informs our
common-sense judgements.



Utilitarians might reply that their reconstruction preserves what is
rationally defensible in common sense beliefs while what it discards
are elements that cannot survive sustained critical reflection. But
this would bring them closer to Bentham's view that justice, as
commonly understood, is nothing but a 'phantom'.


## 5. Contractarianism and Justice



The shortcomings of utilitarianism have prompted several recent
philosophers to revive the old idea of the social contract as a better
way of bringing coherence to our thinking about justice. The idea here
is not that people actually have entered a contract to establish
justice, or that they should proceed to do so, but that we can
understand justice better by asking the question: what principles to
govern their institutions, practices and personal behaviour would
people choose to adopt if they all had to agree on them in advance?
The contract, in other words, is hypothetical; but the search for
agreement is meant to ensure that the principles chosen would, when
implemented, not lead to outcomes that people could not accept. Thus
whereas a utilitarian might, under some circumstances, be prepared to
support slavery - if the misery of the slaves were outweighed by
the heightened pleasures of the slave-owners - contractarians
claims that no-one could accept a principle permitting slavery, lest
they themselves were destined to be slaves when the principle was
applied.



The problem that contractarians face is to show how such an agreement
is possible. If we were to ask people, in the real world, what
principles they would prefer to live under, they are likely to start
from a position of quite radical disagreement, given their interests
and their beliefs. Some might even be willing to endorse slavery, if
they were fairly certain that they would not end up as slaves
themselves, or if they were sado-masochists who viewed the
humiliations inflicted on slaves in a positive light. So in order to
show how agreement could be achieved, contractarians have to model the
contracting parties in a particular way, either by limiting what they
are allowed to know about themselves or about the future, or by
attributing to them certain motivations while excluding others. Since
the modelling can be done differently, we have a family of
contractarian theories of justice, three of whose most important
members are the theories of Gauthier, Rawls and Scanlon.


### 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. He assumes that each is interested only in trying to maximise
his own welfare, and he also assumes that there is a non-co-operative
baseline from which the bargaining begins - so nobody would
accept a solution that left her less well off than in the baseline
condition. Each person can identify the outcome under which they fare
best - their maximum gain - but they have no reason to
expect others to accept that. Gauthier argues that rational bargainers
will converge on the principle of *Minimax Relative
Concession*, which requires each to concede the same relative
proportion of their maximum possible gain relative to the
non-co-operative baseline. Thus suppose there is a feasible
arrangement whereby each participant can achieve two-thirds of their
maximum gain, but no arrangement under which they all do better than
that, then this is the arrangement that the principle recommends. Each
person has made the same concession relative to the outcome that is
best for them personally - not accepting the same absolute loss
of welfare, let it be noted, but the same proportionate loss.



There are some internal difficulties with Gauthier's theory that
need to be recorded briefly (for a full discussion, see Barry 1989,
esp. Part III). One is whether Minimax Relative Concession is in fact
the correct solution to the bargaining problem that Gauthier
introduces, as opposed to the standard Nash solution which (in a
simple two-person case) selects the outcome in which the product of
the two parties' utilities is maximised (for discussion of
different solutions to the bargaining problem, see the entry on
 contemporary approaches to the social contract,
 SS 3.2). A second is whether Gauthier is able to justify positing
a 'Lockean' baseline, under which each is assumed to
respect the natural rights of the others, as the starting point for
bargaining over the surplus - as opposed to a more conflictual
'Hobbesian' baseline in which individuals are permitted to
use their natural powers to threaten one another in the process of
establishing what each could expect to get in the absence of
co-operation. But the larger question is whether a contract modelled
in this way is an appropriate device for delivering principles of
justice. On the one hand, it captures the idea that the practice of
justice should work to everyone's advantage, while requiring all
those involved to moderate the demands they make on one another. On
the other hand, it prescribes a final distribution of benefit that
appears morally arbitrary, in the sense that *A*'s
bargaining advantage over *B* - which stems from the fact
that his maximum possible gain is greater than hers - allows him
to claim a higher level of benefit *as a matter of justice*.
This seems implausible: there may be prudential reasons to recommend a
distribution that reflects the outcome that self-interested and
rational bargainers would arrive at, but claims of justice need a
different basis.


### 5.2 Rawls



John Rawls' theory of justice is the most widely-cited example
of a contractarian theory, but before outlining it, two words of
caution are necessary. First, the shape of the theory has evolved from
its first incarnation in Rawls (1958) through his major work *A
Theory of Justice* (Rawls 1971) and on to Rawls (1993) and Rawls
(2001). Second, although Rawls has consistently claimed that the
principles of justice he defends are the principles that would be
selected by people in a suitably designed 'original
position' in which they are asked to choose the social and
political institutions they will live under - this is what
qualifies his theory as contractarian - it is less clear how
important a role the contract itself plays in his thinking. His
principles, which are discussed elsewhere (see the entry on
 John Rawls),
 can be defended on their own merits as a theory of social justice for
a modern liberal society, even if their contractual grounding proves
to be unsound. Rawls presents the contracting parties as seeking to
advance their own interests as they decide which principles to favour,
but under two informational constraints. First, they are not allowed
to know their own 'conception of the good' - what
ends they personally find it most valuable to pursue - so the
principles must be couched in terms of 'primary goods',
understood as goods that it is better to have more rather than less of
whatever conception of the good you favour. Second, they are placed
behind a 'veil of ignorance' that deprives them of any
knowledge of personal characteristics, such as their gender, their
place in society, or the talents and skills they possess. This means
that they have no basis on which to bargain for advantage, and have to
consider themselves as generic persons who might be male or female,
talented or untalented, and so forth. In consequence, Rawls argues,
all will choose to live under impartial principles that work to
no-one's advantage in particular.



The problem for Rawls, however, is to show that the principles that
would be selected in such an original position are in fact
recognizable as principles of *justice*. One might expect the
parties to calculate how to weigh the primary goods (which Rawls
catalogues as 'rights and liberties, opportunities and powers,
income and wealth') against each other, and then to choose as
their social principle 'maximise the weighted sum of primary
goods, averaged across all persons'. This, however, would bring
the theory very close to utilitarianism, since the natural method of
weighing primary goods is to ask how much utility having a given
quantity of each is likely, on average, to bring (for the claim that
utilitarianism would be chosen in a Rawlsian original position, see
Harsanyi 1975). Since Rawls wishes to reject utilitarianism, he has to
adjust the psychology of the parties in the original position so that
they reason differently. Thus he suggests that, at least in developed
societies, people have special reason to prioritise liberty over the
other goods and to ensure that it is equally distributed: he argues
that this is essential to safeguard their self-respect. In later
writing his argument is less empirical: now the parties to the
contract are endowed with 'moral powers' that must be
exercised, and it is then fairly easy to show that this requires them
to have a set of basic liberties.



When he turns to the distribution of income and wealth, Rawls has to
show why his choosers would pick the difference principle, which
considers only the position of the worst-off social group, over other
principles such as maximising average income across the whole society.
In *Theory of Justice* he does this by attributing special
psychological features to the choosers that make it appropriate for
them to follow the 'maximin' rule for decisions under
uncertainty (choose the option whose worst possible outcome is least
bad for you). For example, they are said to be much more concerned to
achieve the minimum level of income that the difference principle
would guarantee them than to enjoy increases above that level. In his
later work, he abandons this reliance on maximin reasoning and gives
greater prominence to another argument hinted at in *Theory*.
This portrays the contracting parties as starting out from the
presumption that income and wealth should be distributed equally, but
then recognizing that all can benefit by permitting certain
inequalities to arise. When these inequalities are governed by the
difference principle, they can be justified to everyone, including the
worst off, thus creating the conditions for a more stable society. But
we need then to ask why equal distribution should be treated as the
benchmark, departures from which require special justification. When
Rawls says that it is 'not reasonable' for any of the
parties initially to expect more than an equal share (Rawls 1971, p.
150; Rawls 1999, p. 130), is this simply a corollary of their position
as rational choosers behind a veil of ignorance, or has Rawls in
addition endowed them with a substantive sense of justice that
includes this presumption of equality?



Although Rawls throughout presents his theory of justice as
contractarian, we can now see that the terms of the contract are in
part determined by prior normative principles that Rawls engineers the
parties to follow. So in contrast to Gauthier, it is no longer simply
a case of self-interested contractors negotiating their way to an
agreement. Rawls candidly admits that the contractual situation has to
be adjusted so that it yields results that match our pre-existing
convictions about justice. But then we may ask how much work the
contractual apparatus is really doing (see Barry 1989, ch. 9 for a
critical appraisal).


### 5.3 Scanlon



Scanlon (1998) does not attempt to deliver a theory of justice in the
same sense as Rawls, but his contractarian account of that part of
morality that specifies 'what we owe to each other' covers
much of the same terrain (for an explicit attempt to analyse justice
in Scanlonian terms, see Barry 1995). Like Rawls, Scanlon is concerned
to develop an alternative to utilitarianism, and he does so by
developing a test that any candidate moral principle must pass: it
must be such that no-one could reasonably reject it as the basis for
informed, unforced general agreement (see the entry on
 contractualism).
 Scanlon's contractors are not positioned behind a veil of
ignorance. They are able to see what effect adopting any proposed
principle would have on them personally. If that effect is
unacceptable to them, they are permitted to reject it. Each person
has, so to speak, a veto on any general principle for regulating
conduct. Those that survive this test are defensible as principles of
justice - Scanlon concedes that there might be alternative sets
of such principles appropriate to different social conditions.



It might seem, however, that giving each person a veto would lead
straightforwardly to deadlock, since anyone might reject a principle
under which he fared badly relative to some alternative. Here the idea
of *reasonable* rejection becomes important. It would not,
Scanlon thinks, be reasonable to reject a principle under which one
does badly if the alternatives all involve someone else faring worse
still. One needs to take account of other people's reasons for
rejecting these alternatives. It might then appear that
Scanlon's contractualism yields the difference principle, which
requires the worst-off group in society to be as well of as they can
be. But this is not the conclusion that Scanlon draws (though he
acknowledges that there might be special reasons to follow Rawls in
requiring *basic social institutions* to follow the difference
principle). The claims of other groups must be considered too. If a
policy greatly benefits many others, while slightly worsening the
position of a few, though without leaving them very badly off, it may
well not be rejectable. Scanlon's position leaves some room for
aggregation - it makes a difference how many people will be
benefitted if a principle is followed - though not the simple
form of aggregation that utilitarians defend.



Scanlon also says that a person can have a reason for rejecting a
principle if it treats them unfairly, say by benefitting some but not
others for arbitrary reasons. This presupposes a norm of fairness that
the contractarian theory does not itself attempt to explain or
justify. So it looks as though the purpose of the theory is to provide
a distinctive account of moral reasoning (and moral motivation) but
not to defend any substantive principles of distributive justice. In
this respect, Scanlon's contractualism is less ambitious than
either Gauthier's or Rawls'.


## 6. Egalitarianism and Justice



In the recent past, many philosophers have sought to establish a close
connection between justice and equality: they ask the question
'what kind of equality does justice require?', and to that
several competing answers have been given (see, for example Cohen
1989, Dworkin 2000, Sen 1980). But we should not be too hasty to
assume that what justice demands is always equality, whether of
treatment or of outcome. Perhaps it does so only in a formal sense. As
we saw in sect 1.3, justice requires the impartial and consistent
application of rules, from which it follows that when two people are
alike in all relevant respects, they must be treated equally. But, as
Aristotle among others saw, justice also involves the idea of
proportional treatment, which implies recipients getting unequal
amounts of whatever good is at issue (Aristotle, *Nicomachean
Ethics*, Book V, ch. 3). If *A* is twice as deserving or
twice as needy as *B*, justice may require that she receives more
than *B* does. So here formal equality of treatment - the
same rule applied to both - leads to an unequal outcome. Again,
when justice takes the conservative form of respect for existing
entitlements or legitimate expectations (see para 2.1) there is no
reason to anticipate that what is due to different people will be
substantively the same.


### 6.1 Justice as Equality



So we need to ask about the circumstances in which justice requires a
substantively equal distribution of advantages. One rather obvious
case occurs when the members of the group within which the
distribution is going to occur have no relevant distinguishing
features, so there are no grounds on which some can claim greater
shares of benefit than others. Suppose a group experiences a windfall
gain for which no-one can claim any credit: a pot of gold somehow
appears in their midst. Then unless any member can make a
justice-related claim for a larger-than-equal share - say that
she has special needs that she lacks sufficient resources to meet
- an equal distribution of the gold is what justice demands,
since any other distribution would be arbitrary. Equality here is the
default principle that applies in the absence of any special claims
that can be presented as reasons of justice.



Equality also acts as a default in circumstances where, although
people may indeed have unequal claims to whatever good is being
distributed, we have no reliable way of identifying and measuring
those claims. By sharing the good equally, we can at least ensure that
every claim has been partially satisfied. Thus suppose we have limited
supplies of a drug that can treat malaria, and a number of patients
displaying symptoms of the disease, but lacking specialised medical
knowledge we cannot tell whether one person's condition is more
serious than another's; then by sharing out the drug equally, we
can guarantee that each person at least receives the highest fraction
of what they really need. Any other distribution must leave at least
one person with less (this of course assumes that there is no
threshold amount of the drug beneath which it is ineffective; if that
assumption is wrong, justice under the stated conditions might require
a lottery in which the chosen ones receive threshold-size doses).



If justice requires equality only by default, it might seem to apply
only in a narrow range of cases. How could egalitarian justice be made
more robust? One approach involves declaring a wider range of factors
irrelevant to just distribution. Thus one formulation of the principle
holds that no-one should be worse-off than anyone else as a result of
their 'morally arbitrary' characteristics, where a
characteristic is morally arbitrary when its possessor cannot claim
credit for having it. This captures a widespread intuition that people
should not be advantaged or disadvantaged by virtue of their race or
gender, but extends it (more controversially) to all personal features
with a genetic basis, such as natural talents and inborn dispositions.
In doing so, it discounts most claims of desert, since when people are
said to deserve benefits of various kinds, it is usually for
performing actions or displaying qualities that depend upon innate
characteristics such as strength or intelligence. In the following
section, we will see how egalitarian theories of justice have tried to
incorporate some desert-like elements by way of response. But
otherwise justice as equality and justice as desert appear to be in
conflict, and the challenge is to show what can justify equal
treatment in the face of inequalities of desert.



A second approach answers this challenge by explaining why it is
positively valuable to afford people equal treatment even if they do
display features that might appear to justify differential treatment.
A prominent advocate of this approach is Dworkin, who argues that
fundamental to justice is a principle of equal concern and respect for
persons, and what this means in more concrete term is that equal
resources should be devoted to the life of each member of society
(Dworkin 2000). (The reference to membership here is not redundant,
because Dworkin understands egalitarian justice as a principle that
must be applied within sovereign states specifically - so in the
terms of 3.2, this is a relational view of justice.) The thought is
that showing persons equal respect may sometimes require us to afford
them equal treatment, even in the face of relevant grounds for
discrimination. Thus we insist on political equality - one
person, one vote - even though we know that there are quite
large differences in people's competence to make political
decisions.


### 6.2 Responsibility-sensitive egalitarianism



As noted above, justice as simple equality of treatment seems open to
the objection that it fails to acknowledge the agency of the
recipients, who may have acted in ways that appear to qualify them to
receive more (or less) of whatever benefit is being distributed. To
answer this objection, several recent philosophers have presented
alternative versions of 'responsibility-sensitive
egalitarianism' - a family of theories of justice that
treat equal distribution as a starting point but allow for departures
from that baseline when these result from the responsible choices made
by individuals (see Knight and Stemplowska 2011 for examples). These
theories differ along several dimensions: the 'currency of
justice' used to define the baseline of equality, the conditions
that must be fulfilled for a choice to qualify as responsible, and
which among the consequences that follow from a choice should count
when the justice of an outcome is being assessed (it may in particular
appear unjust to allow people to suffer the full consequences of bad
choices that they could not reasonably have anticipated). The label
that is often used to describe a sub-class of these theories is
'luck egalitarianism'. According to luck egalitarians,
justice requires 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 (for a full discussion of luck
egalitarianism, see the entry on
 justice and bad luck).
 'Brute' luck is interpreted widely to include not only
external circumstances such as one person's initially having
access to more resources than another, but also internal factors such
as possessing natural abilities or disabilities, or having
involuntarily acquired expensive tastes. All such inequalities are to
be ironed out by redistribution or compensation, while people's
choices about how to use the assets they are granted should be
respected, even if this leads to significant inequality in the long
run.



Luck egalitarianism has proved surprisingly influential in recent
debates on justice, despite the evident difficulties involved in, for
example, quantifying 'brute luck disadvantage' in such a
way that a compensatory scheme could be established. There are,
however, a number of problems it has to face. By giving scope to
personal responsibility, it seeks to capture what is perhaps the most
attractive part of the conventional idea of desert - that people
should be rewarded for making good choices and penalised for making
bad ones - while filtering out the effects of having
(undeserved) natural talents. But in reality the choices that people
make are influenced by the talents and other qualities that they
happen to have already. So if we allow someone to reap advantages by,
for example, devoting long hours to learning to play the piano at a
high level, we must recognize that this is a choice that she would
almost certainly not have made unless early experiment showed that she
was musically gifted. We cannot say what she would have chosen to do
in a counterfactual world in which she was tone deaf. There seems then
to be no coherent half-way house between accepting full-blooded desert
and denying that people can justly claim relative advantage through
the exercise of responsibility and choice (see further Miller 1999,
ch. 7) .



A second problem is that one person's exercise of responsibility
may prove advantageous or disadvantageous to others, even though they
have done nothing to bring this change about, so from their point of
view it must count as 'brute' luck. This will be true, for
example, in any case in which people are competing to excel in some
field, where successful choices made by *A* will worsen the
comparative position of *B*, *C*, and *D*. Or again, if
*A* acts in a way that benefits *B*, but does nothing
comparable to improve the position of *C* and *D*, then an
inequality is created that counts as 'brute bad luck' from
the perspective of the latter. One of the most influential exponents
of luck egalitarianism seems to have recognized the problem in a late
essay: 'unlike plain egalitarianism, luck egalitarianism
*is* paradoxical, because the use of shares by people is
*bound* to lead to a distribution flecked by luck' (Cohen
2011, p. 142).


### 6.3 Relational Egalitarianism



We have seen that equality can sometimes be understood as required by
justice; but it can also be valued independently. Indeed there can be
circumstances in which the two values collide, because what justice
demands is inequality of outcome. The kind of inequality that is
independently valuable is social equality, best understood as a
property of the relationships that prevail within a society: people
regard and treat each other as social equals, and the society's
institutions are designed to foster and reflect such attitudes. A
society of equals contrasts with one in which people belong to
different ranks in a social hierarchy, and behave towards one another
as their relative ranking prescribes. Different reasons can be given
for objecting to social inequality, and conversely for valuing social
equality (see Scanlon 2003).



Those who find equality valuable for reasons other than reasons of
distributive justice are often described as 'relational
egalitarians' (see Anderson 1999, Wolff 1998, Fourie, Schuppert
and Wallimann-Helmer 2015). It is tempting to regard relational
egalitarianism as a rival theory of justice to the luck egalitarian
theory outlined in SS6.2, but it may be more illuminating to see
it instead as providing an alternative account of why we should care
about limiting material inequality. Thus, faced with a world like the
one we currently inhabit in which income differences are very large,
justice theorists are likely to criticize these inequalities on
grounds that they are not deserved, or arise from brute luck, etc.,
whereas relational egalitarians will say that they create a divided
society in which people are alienated from each other, and cannot
interact in a mutually respectful way. Relational equality does not
address issues of distribution directly, and so cannot function as a
theory of justice itself, but it can provide grounds for preferring
one theory of justice to its rivals - namely that implementing
that particular theory is more likely to create or sustain a society
of equals.


## 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. Although we found common elements running through this
diversity of use - most readily captured in Justinian's
'suum *cuique*' formula - these were formal
rather than substantive. In these circumstances, it is natural to look
for an overarching framework into which the various contextually
specific conceptions of justice can all be fitted. Three such
frameworks were examined: utilitarianism, contractarianism and
egalitarianism. None, however, passed what we might call the
'Sidgwick/Rawls test', namely that of incorporating and
explaining the majority at least of our considered convictions about
justice - beliefs that we feel confident in holding about what
justice requires us to do in a wide and varied range of circumstances
(for Rawls' version of the test see the entry on
 reflective equilibrium).
 So unless we are willing to jettison many of these convictions in
order to uphold one or other general framework, we will need to accept
that no comprehensive theory of justice is available to us; we will
have to make do with partial theories - theories about what
justice requires in particular domains of human life. Rawls himself,
despite the bold title of his first book (*A Theory of
Justice*), came to recognize that what he had outlined was at best
a theory of social justice applied to the basic institutional
structure of a modern liberal state. Other forms of justice -
familial, allocative, associational, international - with their
associated principles would be applicable in their respective domains
(for an even more explicitly pluralist account of justice, see Walzer
1983; for a fuller defence of a contextual approach to justice, see
Miller 2013, esp. ch. 2).



One way to loosen up our thinking about justice is by paying greater
attention to the history of the concept. We can learn a great deal by
reading what Aristotle, or Aquinas, or Hume, has to say about the
concept, but as we do so, we also see that elements we would expect to
find are missing (there is nothing about *rights* in Aristotle,
for example), while others that we would not anticipate are present.
This may in some part be due to the idiosyncrasies of each thinker,
but more importantly it reflects differences in the form of social
life in which each was embedded - its economic, legal and
political structure, especially. Various attempts have been made to
write histories of justice that are more than just catalogues of what
individual thinkers have said: they aim to trace and explain
systematic shifts in the way that justice has been interpreted (for
contrasting examples, see MacIntyre 1988, Fleischacker 2004, Johnston
2011). These should not be read as enlightenment stories in which our
understanding of justice steadily improves as the centuries roll by.
MacIntyre's view, for example, is that modern liberal societies
cannot sustain the practices within which notions of justice find
their proper home. We can get a better grasp of what justice means to
us by seeing the various conceptions that compete for our attention as
tied to aspects of our social world that did not exist in the past,
and are equally liable to disappear in the future.