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Lara O’Donoghue
#1866701
PHILOSOPHY
Thomas Hankins Submission
Revised Paper from PHIL 401

Choose Justice, Not Morality:

an application of the works of Iris Marion Young and Erin Kelly on social structure

Discussions on the topic of punishment, responsibility, and justice have oftentimes

surrounded the concept of morality. In some instances, it may seem an attractive option to find

some compromise between morality and justice as our guiding social principle. For beings whose

lives interact in a complex society such as ours, it is of the utmost importance that we establish

how our societal institutions should operate. In this paper I will argue that it is better to have a

‘just’ social structure, full of morally bad people, than a ‘moral’ social structure that breeds

injustice. I will begin by outlining the difference between two such societies, then I will explore

arguments put forward by Iris Marion Young, before extending her arguments into the sphere of

criminal justice using work presented by Erin Kelly, to conclude that pursuing a ‘just’ social

structure is the best course of action.

Before I begin, I wish to establish a clear understanding of what I mean by the terms ‘justice’

and ‘morality’. I intend justice to be understood as the respect, recognition, and protection of

fundamental human rights. In the United Sates, for example, the Bill of Rights protects the rights

of its citizens, including protection against cruel and unusual punishment. Morality, I propose, is

a subjective measure of ‘good’ or ‘bad’. When we make moral judgements about the world, we

are expressing how we feel about a particular action or thing. To clarify this distinction, I may

think it is wrong to sneeze without following up with “excuse me”, perhaps because I consider it
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rude, but such an act is not unjust; I do not infringe upon the rights of others through a simple

social faux pas. Though one could argue that there exists more objectivity to morality than

simple social customs, such as in the case of murder, this simply speaks to how morality and

justice can overlap, as I discuss in more detail elsewhere. This distinction, however, becomes

less clear to many of us when the stakes are much higher. Later in this paper, I will explain the

ways in which conflating morality and justice can damage an institution as fundamental to

society as our legal systems.

To begin my argument, I will make use of a character provided to us by Iris Marion Young,

known as Sandy. [Sandy is a single mother to two young children, who works an hour’s

commute from her job as a salesclerk. Recently, a developer has purchased the apartment

building where Sandy lives, and she will soon be evicted. Initially, Sandy sees this as an

opportunity to move closer to work, but those apartments are simply out of her budget, so she

opts for an option on the outskirts of the city and purchases a car to manage the travel.

Unfortunately, in making the car payments, Sandy falls short on the required deposit for the

apartment and now faces homelessness]. (Young, pp. 43-44) The purpose of introducing us to

Sandy is to demonstrate the distribution of blame. On the face of it, it may appear as though

either Sandy herself or the developer is to blame for her tough situation. If only Sandy had made

more of an effort to build up her savings account. If only the developer had given Sandy more

time to get resituated before evicting her. But the reality is, no one action led to the threat of

homelessness, rather, a framework that inequitably distributes resources has been set up by

society for decades creating situations such as Sandy’s for countless individuals.

Having heard Sandy’s story, it may be tempting to pursue a society where everyone just does

the ‘right’ thing. One could argue that if everybody acted with the best intentions, the world
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would be a fair place where everyone’s rights are protected. I argue, conversely, that not only

does a moral society not necessitate a just society but that it can sometimes stand in the way of

justice. Assume that the developer purchasing Sandy’s building is a kindhearted man with a

modest lifestyle and a small, loving family. He plans to develop the space into condominiums for

families displaced by natural disasters. Moreover, Sandy does not live beyond her means and,

instead of spending her money frivolously, she donates all her extra income to provide relief aid

to war-torn countries. It becomes less apparent in this scenario who is to ‘blame’ for the situation

Sandy has found herself in. What remains clear, though, is that there is some injustice at play.

Sandy is the victim of structural injustice, not the moral failings of any individual person

including herself. Structural injustice arises when “[social processes put large groups under

systemic threat of domination or deprivation at the same time that these processes enable others

to dominate].” (Young, p. 52) Were Sandy living in a just society, the moral worth of the actions

of individuals would be irrelevant providing that there were no social constraints, rules, or

relations that would lead to the oppression of a group that she belongs to. To illustrate this point

further, we live in a society that arbitrarily places a higher value on a four-year undergraduate

degree, than four years of vocational training. If Sandy had decided to work as a salesclerk

straight out of high school rather than trying to obtain a marketing degree from a university, she

may be systemically disadvantaged from achieving promotions or opportunities that would

otherwise have been afforded to her. It is not the case that individual employers are ‘bad’ people

for seeking employees with a degree, rather they are non-maliciously contributing to a system

that has the unintended consequence of creating socio-economic inequality. A just society would

not only compensate individuals for the hardship they endure as a result of such social structures
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but would work to rectify the injustice by restructuring institutions to prevent these threats in the

first place. (Young, pp. 29-34)

As agents within a society, whether we intend to or not, when we act, we reinforce existing

rules and power relations that allow us to do so. In order to live in a society free from the

inequities of unaffordable housing and healthcare, a lack of access to education, and a

discriminatory legal system, it is necessary that we, as individuals, strive to tailor our institutions

to justice, then, not morality. Instead of asking ourselves whether or not we should be respectful

or ponder on what would be the considerate thing to do, we should instead confront ourselves

with how we contribute to structural processes of domination on a personal level. Once we

understand that we have a role in injustice, we must commit ourselves to unravelling and

restructuring those very institutions that perpetuate discrimination, dominance, and oppression.

(Young, pp. 73-74) It is important to note here that this is not to say that we should do away with

morality altogether. Morality can be an incredible tool to help direct oneself in everyday actions,

and steer away from acts you feel are bad, providing that the goal of your actions aligns with

dismantling injustice and promoting justice.

Young builds on arguments put forth by Hannah Arendt on guilt and political responsibility.

Here I will explain further how morality can be a tool, but justice must be the end. Young and

Arendt both state that moral guilt is for individuals based on the deeds they have committed, not

of collectives. (Young, pp. 75-76) Political responsibility, on the other hand, requires at least

passive support for the system of oppression in place and relies on the relationship between

individuals and institutions. Take the unjust existence of unaffordable housing, that encompasses

issues such as homelessness, poverty, and impoverished living. Those who are guilty of this

social injustice may be corporate fat-cats who deliberately drive down the quality of living in a
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given area, just to tear down residential buildings and rebuild luxury structures to turn a profit.

Those who are politically responsible, however, are all of us who engage with the housing

market, for it is our participation in this industry that allows others to exploit it. We can use

morality to recognize that exploiting others for personal gain is not morally permissible but

should ultimately abstain from even contributing the system in which such exploitation is

possible and fight to restructure it so that future exploitation will not occur. After all, “we cannot

avoid the imperative to have a relationship with actions and events performed by institutions of

our society, often in our name, and with our passive or active support.” (Young, p. xv)

Now that I have explained the distinction between a ‘just’ society and a ‘moral’ society, and

between guilt and political responsibility, do I propose that “agents, both individual and

organizational, think about our responsibility in relation to structural injustice?” (Young, p. 75)

The answer to this question lies in two parts: (a) Iris Young’s social-connection model and (b)

Erin Kelly’s principle of distributive justice. With regards to (a), there are two ways of

considering responsibility. One can either subscribe to the liability model, which is a backward-

looking model that looks at the causal source of harm, or the social-connection model, a forward-

looking approach to changing processes of domination. Since we have identified that structural

injustice is an accumulation of multi-faceted processes that have no distinguishable root, it would

not make sense to employ the liability model. The liability model relies on blame, clear

intentions, and a direct causal connection between the act and the harm committed. (Young, pp.

97-99) Human rights violations, for the most part, are committed on a macro level. Though there

most definitely exist instances of interpersonal discrimination, for example John Doe belittling

every woman he meets on the basis of their sex, wide-scale oppression pertinent to human rights

is exhibited clearly and consistently, such as the gender-based wage gap. The social-connection
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model is preferable in addressing such issues as there is no identifiable source of all the harm.

What’s more, under this model each person shares responsibility and cannot hide behind a veil of

‘society’ being responsible. It is important to note that this does not imply mass blame, as

political responsibility is free from blame unless one is guilty on an individual level.

If we operate under the social-connection model, then, and pursue a society founded upon

justice, what role does that leave morality under the law? In short, none. Regarding (b), it is

necessary to understand the crux of Erin Kelly’s argument before moving further. Kelly claims

that there exists a mismatch between morality and legal liability. So much so, she argues, that

“the mismatch between criminal guilt and moral blameworthiness presents a moral problem for

society that takes a punitive, criminal-justice approach to social problems.” (Kelly, p. 5) To

correct this mismatch, Kelly argues that we should not “calibrate” punishment or our legal

system to align with morality, because the role of our legal system is not to use “criminal justice

as an instrument of moral blame.” (Kelly, p. 105) Instead, we should develop our legal systems

to pursue justice free from morality as a metric. If we track criminality, or even simply wrong

actions, according to their moral worth, a clear gap appears between mens rea (one’s level of

mental culpability) and moral blameworthiness. Removing moral weight from the equation, we

are able to understand wrongfulness as a way to evaluate acts, not people, and as such criminal

law outlines criminal wrongs. By focusing on the act committed, understood from the

perspective of a reasonable person, morality does not stand in the way of justice. It is simply not

feasible to accurately measure the moral worth of each individual action based on the complex

external and internal factors that led one particular person to commit one particular offense.

So, having removed morality from the issue of intent, what is left? Because [the mens rea

element of a crime can be inferred on the basis of some other facts or presumption], legal
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institutions are able to treat like cases alike and avoid the issue of excessive punishment. (Kelly,

pp. 26-27) In doing so, we are yet again in the pursuit of justice, enforcing people’s fundamental

human right to protection against cruel and unusual punishment. Here I reiterate that one of the

reasons we get excessive punishment in the first place is because we often conflate moral

evaluations with legal evaluations. The pursuit of a just society demands that our legal systems

do not seek moral retribution. People should be held liable for criminal wrongs only insofar as

their punishment is to correct injustice and pursue justice and should not be informed by moral

opinions. Ultimately, “[because criminal sanctions help to protect the equal basic rights of all

members of society, the rationale for punishment would be harm reduction.]” (Kelly, p. 122)

At this point, it seems only reasonable that such social and legal structures would want to

correct injustice and unjust harm by means of redistribution, seeing as we have stripped away

moral responsibility and retribution from the equation. Now, Kelly’s principle of distributive

justice should fit clearly in tandem with both Young’s principles and my assertion that a just

society is better than a moral society. The principle states that when someone unjustly harms

another, or threatens harm, we are to reallocate that harm onto that person “in order to prevent

unjust harm to ourselves.” To continue, we may also “redistribute the unjust threat to the

aggressor, provided the harm we impose on the aggressor is not excessive.” (Kelly, p. 124) In a

just society, then, we should act with constant attempts to disrupt systemic oppression and

institutions of domination for which we are politically responsible, we should condemn those

who are personally guilty of violating human rights or committing criminal wrongs, and we

should do so by proportionately reallocating unjust harm onto such perpetrators.

Before drawing my argument to a close, I wish for us to turn our thoughts back to Sandy. It is

perhaps a noble gesture to want Sandy to live in a world where everyone wants to do the right
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thing, but her fundamental human rights will always be at threat until we address the injustices

on a macro level. To live in a world where Sandy has equal access to healthcare, education,

welfare, and housing for herself and her two young children, we must redevelop our institutions

into a ‘just’ social structure. Unfortunately, there is little that can be done in the short term to fix

Sandy’s situation, and it may feel slightly immoral to accept that fact but given the extent of

social injustice, our goal must be to prevent more Sandies in the future.

Given the arguments I have presented, supported by the works of Iris Marion Young and Erin

Kelly, it is clear that we should choose justice over morality as the best course of action. To

conclude, conversations on the topic of punishment, responsibility, and justice should not rest on

morality. Although it may seem an attractive option to attempt to marry morality and justice, it is

better to have a ‘just’ social structure, full of morally bad people, than a ‘moral’ social structure

that breeds injustice.

Word Count: 2,529

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Works Cited:

Young, I. M., ‘Responsibility for Justice’, 2010, New York: Oxford University Press

Kelly, E. I., ‘The Limits of Blame; rethinking punishment and responsibility’, 2018, Cambridge,
Massachusetts: Harvard University Press