…[T]he classical contention that justice is the ‘first virtue of societies’ (‘in society’ for Aristotle, ‘of institutions’ for Rawls) can be doubted. Culture, rootedness, and the respect of history are not behind it. Altruism and fraternity overrule it when they are possible. And the consciousness of the artificiality of the self, hence self-creation and nonalienated spirituality, constitute the highest and deepest stage of humankind. Justice therefore is only the fourth or fifth virtue of society. This does not make its establishment less necessary, the fight for it less righteous, and understanding it less important. Even the instrumental value of justice is no small contribution. Peace without justice is oppression, spoliation, and violation of dignity. Dignity without justice fosters wars for one’s due and freedom. Justice alone permits the reign of both peace and dignity.—Serge-Christophe Kolm
The following can be considered an extension of the ideas broached in the last paragraph of the introduction to our previous post on (a basic bibliography for) distributive justice. It is also an attempt to broadly characterize, and hint at the possible respective limits of, three influential approaches to distributive justice in our time. I rely on a recent blog post by Professor Michael Moreland to initiate the discussion.
At Mirror of Justice, Moreland writes:
“In a summer reading group in legal and political theory, my colleague Michelle Dempsey led us in a discussion of a paper by John Gardner on John Finnis on justice, which will appear in a festschrift for Finnis (co-edited by our own Robby George). Among the insights of the paper was a point brought home to me when reading Aquinas with students earlier this summer about the contrast between justice as primarily a moral virtue of persons and justice as a virtue of political institutions—the contrast between the way Aquinas works out his view of justice in the Secunda Secundae and the view taken by John Rawls at the outset of A Theory of Justice. Here’s a bit from the conclusion to Gardner’s paper:
‘Finnis stands up for the classical view that questions of justice arise first and foremost for each of us as ordinary moral agents, and only derivatively for political authorities and the like. Thus, contra Rawls, the question of what makes “social institutions” just cannot be tackled without first tackling the question of what would make you or me just. [….] And yet, as Finnis also says, there may be a special connection between justice and the law, such that justice may strike us as the first virtue of the law….’ [….]
[Finnis has] a way of explaining, without condoning, the late twentieth-century tendency to think of justice as a topic for political and legal philosophers rather than for other moral philosophers. It allows us to see why Rawls began where he did, without agreeing that it was the best way to begin. For one may be led to imagine that justice is the first virtue of social institutions in general by taking an overly juridical view of social institutions, by thinking of society as a big law court and the rest of us as parties litigating for our fair shares of some social booty. Finnis does not make this mistake. But he certainly does help us to see how others come to do so.”
While I think it’s very misleading if not a bit mean-spirited to claim or insinuate that Rawls himself “[thought] of society as a big law court and the rest of us as parties litigating for our fair shares of some social booty,” the “mistake” committed by Rawls that Finnis is rightly said to avoid could likewise said to be avoided by others outside the Catholic tradition: earlier by Muslim thinkers and in our time (thus contemporaneous with Finnis), by an avowed Marxist philosopher, as we shall see. And while Rawls did not “begin” with human virtue, it enters his theory insofar as such virtue is conceived in the main as derivative of justice as a social virtue. In capitalist democratic (‘pluralist’) societies in which there is adherence to or at least identification with motley worldviews (or particular beliefs or values as aspects therefrom), beginning with virtue in publicly oriented reasoning about justice is complicated by the various understandings and clusters of virtues found in these religious and non-religious worldviews. While there is of course some overlap and agreement on particular virtues, some virtues may be central and others peripheral if not neglected. The ethos of capitalism complicates matters insofar as what were once vices are now virtues (Mandeville), in fact, we can probably find ready-made apologias for any of the so-called “seven deadly sins” in both popular and academic discourse. Moreover, it is hard to appreciate the logic or purpose of theories of justice that begin with questions addressed to each and every moral agent qua moral agent when the dominant social ethos and praxis is suffused with the predominance of or a default preference for utilitarianism or consequentialism, pragmatism, and materialist ideologies (e.g., scientism) among technocratic “cultural elites” in a manner congenial to if not supportive of the aristocracy of Capital at the expense of deference to the authority of the Good. The various reference groups into which we are socialized are fragmented and comparatively weak (and weaker still the traditional worldviews on which they depended), as the social psychological and ideological obstacles to deference to the Good are forged in the fires of capitalism and further shaped and polished by the consumptive goods (including entertainment and aesthetic pleasures) believed to promote happiness or welfare (in effect, the ultimate good). The result: passive consumption is the prevailing form of “self-realization.” Finnis’s natural law theory at least has the potential (alas, unrealized) to compensate for Liberalism’s failure to critique the ideology and praxis of turbo-capitalism and thus the role of the economic system in endogenous preference formation (leaving us with debilitating, distorted, or ‘dirty’ preferences) that makes a mockery of the Liberal’s idealized portrait of the sanctity and sovereignty of the individual’s preferences (desires and wants) and even some of the processes for their democratic aggregation and representation. But before Catholic legal theorists get too giddy over Finnis’s fidelity to the classical view of justice, we should hasten to add that this very (conservative) Catholic moral and legal theory often identifies the enemy as Liberalism as such, rather than its conflation or confusion with capitalism (which is a product of the Libertarian strand of Liberalism). The individual is, rightly, given moral (priority), political, and legal pride of place in Liberalism (hence communities exist for (Kantian or Millian) individuals, not vice versa, as often seems to be the case with ‘communitarianism’), and in a manner much like if not supportive of the metaphysical sanctity of the individual enshrined in the Catholic emphasis on human dignity (aspects of which go back to the Stoics and appear in the modern period anew with Kant, whose thinking was influenced by both the Stoics and his own Pietistic heritage).
It would be interesting to systematically compare the Catholic conception of justice from Aquinas to Finnis with notions justice in the Islamic tradition (recalling Aquinas’s enormous debts to same), in particular its conceptions of “philosophical” and “ethical” justice, especially the latter, in which justice is also about each of us as individual moral agents. While it is true, in a profound sense—that is, theologically, metaphysically (or ontologically) and psychologically speaking—that such justice is accorded priority, in more practical terms it might not be helpful to think of it as “first and foremost” insofar as justice applies, from the outside looking in as it were (and thus not just from the subjective standpoint of the individual), simultaneously to the person and the polity to which he or she belongs. Muslims in turn are in debt to Aristotle (and in similar and other respects to Plato as well) insofar as they agreed with him that justice is “the greatest of virtues…and in it every virtue is comprehended,” although they believe the highest virtues are “implied in Revelation.” Most writers in the Islamic tradition have understandably attempted, as Majid Khadduri points out, to correlate Divine and human justice. Khadduri also reminds us that “thinkers like Miskawayh and Rāzī”…. “made it clear that ethical justice was not merely a set of religious and legal duties but also moral obligations or dispositions toward good and evil, which men ought to undertake were he to pursue justice in accordance with an ethical standard.” With Abu Hāmid al-Ghazzālī we see theological, metaphysical, and ethical justice accorded priority insofar as the power of reason implanted in man by God is connected to a divine “light” (nūr) as a form of spiritual intuition (and thus with Platonic and neo-Platonic overtones) worked on by reason so as to guide man along the path of truth and justice. This divine intuition means, or is equivalent to, access to divine wisdom, which in turn is enshrined in traditional and spiritual virtues. So, while ethical justice “is an expression of ethical virtues…it is ultimately derived from divine justice.” As to the primary virtues, they reflect the influence of classical Greek philosophy, and thus include wisdom (while divine in origin, is much like the practical wisdom of Aristotle), courage, temperance, and justice (al-‘adl) itself, which is defined as “the whole of the virtues.”
The lamentably late G.A. (‘Jerry’) Cohen, a Marxist philosopher in the richest sense, has an interesting critique of Rawls’s theory of justice insofar as he argued that “principles that reflect facts reflect principles that don’t reflect facts” (I would call these ‘Platonic’ principles) and that Rawls failed to appreciate the fundamental importance of the last, that is, “fact-free principles,” described by Cohen as “meta-ethical” but which we might also fairly describe as metaphysical. Rawls strove hard to avoid Kantian metaphysical principles or questions of metaphysical truth or moral realism (which he more or less did in his revisions to the original theory) that would have rescued his “constructivism” from charges of relativism (at least inasmuch as his concept of person(s) is the product of a particular culture and thus eschews the Kantian metaphysical conceptions of the liberty and equality of moral persons), and perhaps precluded or prevented its characterization as an “implicitly statist” (rather than, as with Kant, ‘cosmopolitan’) moral and political philosophy. As Onora O’Neill has explained, the “Kantian constructivism” of the former work “identified the reasonable with the public reason of fellow citizens in a given, bounded, democratic society [i.e., like ‘ours’].”
Cohen argues that Rawls failed to appreciate the distinction between “fact-free principles” and “adopted rules of regulation” (the latter critically dependent in part on facts), and thus his constructivism is not a “meta-theory [or metaphysical, for that matter] theory of justice: Rawls “misidentifies the question ‘What is justice?’ with the question ‘What principles should we adopt to regulate our affairs?’” Muslim theologians and philosophers, as well as Aquinas and now Finnis, can likewise appreciate this misidentification. In effect, and in personal terms or from the view of the moral agent, it amounts to a failure to appreciate the deep difference between deliberating or contemplating what to do and thinking about what is the right rule (or what are the right rules) to adopt, between rules of regulation and the principles that justify them, or between optimal rules of social regulation and fundamental (normative) principles of justice, the latter having a far wider scope in practice than justice as a virtue of political institutions. The fundamental principles of justice, unlike the rules of regulation, could not in any real sense said to be “adopted,” for they “represent,” in Cohen’s words, “our convictions,” and these convictions of course are those of individual men and women (in which case, the fundamental principles of justice might depend, as Cohen concedes but does not agree, on basic facts of human nature, or simply a conception of human nature). Cohen, writes revealingly that he “agree[s] with the Socratic-Platonic view that led Socrates to reject illustrations of, for example, just behavior as providing a proper answer to the question ‘What is justice?’: no list of examples reveals what it is about the examples that makes each an example of justice,” or justice as such. The Humean concern with the “circumstances of justice,” ostensibly central to the Rawlsian view, asks “Under what circumstances [or conditions] is (the achievement of) justice possible and/or necessary?” As Cohen makes clear, the answer to the question “What is justice?” is prior to the Humean concern with the circumstances of justice, and that Hume himself understood justice, “in its primary application, [as] a virtue of persons,” not in the first instance as a virtue of the basic structure of society.
Cohen’s conceptual and Platonic-inspired critique of Rawls might be characterized as transcendentalist, demanding a utopian vision of the Good, as it were, although we should not forget the philosopher’s descending dialectic (as Iris Murdoch reminds us) back into the Platonic Cave, which suggests the “ideal” of justice has at least educative (as paideia), evaluational, and motivational relevance, even if the “Euclidian”or utopian constructions it inspires are not feasible models for definitely realizable concretions. As William Galston writes in Justice and the Human Good (1980), “utopias exist in speech; they are ‘cities of words.’ This does not mean that they cannot exist but only that they need not ever. This ‘counterfactuality’ of utopia in no way impedes its evaluative function.” Galston elaborates:
“Although utopia is a guide for action, it is not in any simple sense a program of action. In nearly all cases, important human or material preconditions for good politics will be lacking. Political practice consists in striving for the best results achievable in particular circumstances. The relation between the ideal and the best achievable is not deductive. [….] Thus, the incompleteness of utopia, far from constituting a criticism of it, is inherent in precisely the features that give it evaluative force. As has been recognized at least since Aristotle, the gap between utopian principles and specific strategic/tactical programs can be bridged only through an inquiry different in kind and content from that leading to the principles themselves. If so, the demand that utopian thought contain within itself the conditions of its actualization leads to a sterile hybrid that is neither an adequate basis for rational evaluation nor an accurate analysis of existing conditions.”
Indeed, to mistake utopian constructions—of justice or anything else—for “definitely realizable concretions,” or as a political “program for action,” or as the “ends” toward which history is progressing (utopias misconstrued as ‘blueprints’), gives rise to the shadow of utopian thought and imagination, to the reasons behind our use of the term “utopianism” in a pejorative sense. George Santayana (Reason in Society, 1952) captured something of the true and indispensable nature of utopian constructions inspired by visions of the Good or even more modest Kantian or Kantian-like moral principles of freedom and equality:
“Ideal society belongs entire to this realm of kindly illusion, for it is the society of symbols. Whenever religion, art, or science presents us with an image or a formula, involving no matter how momentous a truth, there is something delusive in the representation. It needs translation into the detailed experience which it sums up in our own past or prophecies elsewhere. This eventual change in form, far from nullifying our knowledge, can alone legitimize it…. And yet there is another aspect to the matter. Symbols are presences, and they are those particularly congenial presences which we have inwardly invoked and cast in a form intelligible and familiar to human thinking. Their function is to give flat experience a rational perspective, translating the general flux into stable objects and making it representable in human discourse. They are therefore precious, not only for their representative or practical value, implying useful adjustments to the environing world, but even more, sometimes, for their immediate or aesthetic power, for their kinship to the spirit they enlighten and exercise.”
We might imagine a spectrum of theories of (largely distributive) justice in which Cohen’s “transcendentalist” conception and critique lies at one end, while Amartya Sen’s “social realization” (and ‘comparative’) approach lies at the other end, with what Sen terms Rawls’s “transcendental institutionalism” (of A Theory of Justice) falling out somewhere in the middle (there’s no implication here that the ‘middle way’ is the best approach). Sen speaks of Rawls as being within a (niti) tradition of “arrangement-focused” contractarian thinking (the usual suspects) in contrast to what he terms a tradition of “realization-focused” comparisons (e.g., Smith, Condorcet, Wollstonecraft, Bentham, Marx, J.S. Mill), the former’s ex ante approach focused on designing and implementing “just institutions,” while the latter’s ex post (nyaya) orientation intent on comparative assessments of “just societies,” much in the manner of social choice theory. (Sen also highlights the different ‘informational’ foci of the respective approaches.) Thus Sen’s preferred approach “would tend to ground the assessment of combinations of social institutions and public behaviour patterns on the social consequences and realizations they yield….” (I will not here attempt a Cohen-like critique of Sen’s approach, merely and rather to note that one is certainly possible if not necessary.) The social realization approach would appear to give a greater role to, or at least has more confidence in, politics, at least in as much as that involves ongoing reliance on the rational basis of social judgments and public decisions, or accords a prominent role to practical reasoning in public fora, whatever our prior faith in or commitment to the putatively just institutions set up by the original “framers.” Nothing is sacred, in other words, even if we see these institutions as presumptively fair, for they remain liable to publicly reasoned re-examination (presumptions are rebuttable after all). Reasoned scrutiny, on this account, is equally ex ante and ex post, and thus is not the primary prerogative or privilege of the original framers or designers (say, of a constitution or any other convention in Russell Hardin’s sense), or those in an “Original Position,” that a would-be democratic society must pay debilitating deference to with regard to the pursuit of justice. I might add, somewhat ironically I suppose given Sen’s dislike of G.A. Cohen’s transcendental utopian conception of justice, that Sen’s approach permits (although he would not endorse this interpretation) ongoing respect of our intuitions of (perfect) justice insofar as we can always assess the degree to which our realizations fall short of the perfect “Form,” so to speak, there’s always room for an evaluative critique of sorts that precludes any kind of complacency with regard to our achievements.
Beyond or outside our spectrum of theories of distributive justice we should remind ourselves that justice may be neither the first virtue of societies nor of individuals. It is not necessarily the first virtue of society “because it presupposes and is embedded in cluster of other virtues and because it is only one of the several preconditions of social and political stability.” And it may not be the first virtue of individuals, at least in thinkers as different as Marx and Gandhi, if only because it is perhaps best viewed as a “secondary virtue expressing and transcended in such others as mutual concern, moral solidarity, generosity and love.”
Finally, we end with an equally compelling insight from the political theorist Ian Shapiro about the virtual neglect of the meaning and significance of “democratic justice:”
“It would be going too far to say that theoreticians of democracy and justice speak past one another, but there has been little systematic attention by political theorists to the ways in which considerations about democracy and justice are or should be mutually related. This relative inattention seems partly to have sprung from optimism among many justice theorists about what armchair reflections should be expected to deliver, a driving conviction about what is just in the distribution of social goods can be settled as a matter of speculative theory. Their arguments often appear to take it for granted that there is a correct answer to the question what principles of justice we ought to affirm; that Rawls, Ronald Dworkin, Robert Nozick, Amartya Sen, or someone else will eventually get it right [I should mention that Sen himself does not take this for granted]. On this understanding of the enterprise, tensions between proffered accounts of justice and the requirements of democratic politics can comfortably be thought of as problems of implementation to be worried about later or by others.”
 I have a very basic introduction to justice in the Islamic tradition here: http://www.religiousleftlaw.com/2010/09/islam-justice-propaedeutic.html.
 Majid Khadduri, The Islamic Conception of Justice (Baltimore, MD: Johns Hopkins University Press, 1984).
 See G.A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008): 229-343.
 See the Platonically-inspired critique in T.K. Seung’s Intuition and Construction: The Foundation of Normative Theory (New Haven, CT: Yale University Press, 1993). It remains an open question, I think, as to what extent Rawls’s theory is haunted by Liberal parochialism or possesses “cosmopolitan” features or potential. I broached this interpretive controversy here: http://ratiojuris.blogspot.com/2010/12/liberalism-keynesian-cold-war.html.
 Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Cambridge, MA: Harvard University Press, 2000): 85.
 Ibid., note 6: 349.
 Ian Shapiro, Democratic Justice (New Haven, CT: Yale University Press, 1999): 3-4. In a note to this passage, Shapiro writes that “Rawls is less responsible for the existence of this disjunction than are many of his successors. One of the least discussed features of his argument is the fact that the rights of democratic participation are protected by the first principles of justice. Given his lexical ranking, this supplies them with trumping power over many of the subsequent recommendations that flow from his theory, although rights of democratic participation may be substantially limited by other requirements of the first principle.”