Western Theories of Justice

Justice is one of the most important moral and political concepts.  The word
comes from the Latin jus, meaning right or law.  The Oxford English
Dictionary defines the “just” person as one who typically “does what is morally
right” and is disposed to “giving everyone his or her due,” offering the word
“fair” as a synonym.  But philosophers want to get beyond etymology and
dictionary definitions to consider, for example, the nature of justice as both a
moral virtue of character and a desirable quality of political society, as well as
how it applies to ethical and social decision-making.  This article will focus on
Western philosophical conceptions of justice.  These will be the greatest theories
of ancient Greece (those of Plato and Aristotle) and of medieval Christianity
(Augustine and Aquinas), two early modern ones (Hobbes and Hume), two from
more recent modern times (Kant and Mill), and some contemporary ones
(Rawls and several successors).  Typically the article considers not only their
theories of justice but also how philosophers apply their own theories to
controversial social issues—for example, to civil disobedience, punishment,
equal opportunity for women, slavery, war, property rights, and international
relations.
For Plato, justice is a virtue establishing rational order, with each part
performing its appropriate role and not interfering with the proper functioning
of other parts. Aristotle says justice consists in what is lawful and fair, with
fairness involving equitable distributions and the correction of what is
inequitable.  For Augustine, the cardinal virtue of justice requires that we try to
give all people their due; for Aquinas, justice is that rational mean between
opposite sorts of injustice, involving proportional distributions and reciprocal
transactions.  Hobbes believed justice is an artificial virtue, necessary for civil
society, a function of the voluntary agreements of the social contract; for Hume,
justice essentially serves public utility by protecting property (broadly
understood).  For Kant, it is a virtue whereby we respect others’ freedom,
autonomy, and dignity by not interfering with their voluntary actions, so long as
those do not violate others’ rights; Mill said justice is a collective name for the
most important social utilities, which are conducive to fostering and protecting
human liberty.  Rawls analyzed justice in terms of maximum equal liberty
regarding basic rights and duties for all members of society, with socio-
economic inequalities requiring moral justification in terms of equal
opportunity and beneficial results for all; and various post-Rawlsian
philosophers develop alternative conceptions.
Western philosophers generally regard justice as the most fundamental of all
virtues for ordering interpersonal relations and establishing and maintaining a
stable political society.  By tracking the historical interplay of these theories,
what will be advocated is a developing understanding of justice in terms of
respecting persons as free, rational agents.  One may disagree about the nature,
basis, and legitimate application of justice, but this is its core.

Table of Contents
1. Ancient Greece
a. Plato
 b. Aristotle
2. Medieval Christianity
a. Augustine
b. Aquinas
3. Early Modernity
a. Hobbes
b. Hume
4. Recent Modernity
a. Kant
b. Mill
5. Contemporary Philosophers
a. Rawls
b. Post-Rawls
6. References and Further Readings
a. Primary Sources
b. Secondary Sources
1. Ancient Greece
For all their originality, even Plato’s and Aristotle’s philosophies did not emerge
in a vacuum.  As far back in ancient Greek literature as Homer, the concept
of dikaion, used to describe a just person, was important.  From this emerged
the general concept of dikaiosune, or justice, as a virtue that might be applied to
a political society.  The issue of what does and does not qualify as just could
logically lead to controversy regarding the origin of justice, as well as that
concerning its essence.  Perhaps an effective aid to appreciating the power of
their thought is to view it in the context of the teachings of the Sophists, those
itinerant teachers of fifth-century ancient Greece who tried to pass themselves
off as “wise” men.  In his trial, Socrates was at pains to dissociate himself from
them, after his conviction refusing to save himself, as a typical Sophist would, by
employing an act of civil disobedience to escape (Dialogues, pp. 24-26, 52-56;
18b-19d, 50a-54b); Plato is more responsible than anyone else for giving them
the bad name that sticks with them to this present time; and Aristotle follows
him in having little use for them as instructors of rhetoric, philosophy, values,
and the keys to success.  So what did these three great philosophers (literally
“lovers of wisdom”) find so ideologically objectionable about the Sophists?  The
brief answer is, their relativism and their skepticism.  The first important one,
Protagoras, captures the former with his famous saying, “Man is the measure of
all things—of the things that are, that they are, and of the things that are not,
that they are not”; and he speaks to the latter with a declaration of agnosticism
regarding the existence of divinities.  Gorgias (Plato named dialogues after both
of them) is remembered for a striking three-part statement of skepticism,
holding that nothing really exists, that, even if something did exist, we could not
grasp it, and that, even if we could grasp something real, we could never express
it to anyone else.  If all values are subjective and/or unknowable, then what
counts as just gets reduced to a matter of shifting opinion.  We can easily
anticipate how readily Sophists would apply such relativism and skepticism to
justice.  For example, Thrasymachus (who figures into the first book of
Plato’s Republic) is supposed to have said that there must not be any gods who
care about us humans because, while justice is our greatest good, men
commonly get away with injustice.  But the most significant Sophist statement
regarding justice arguably comes from Antiphon, who employs the
characteristic distinction between custom (nomos) and nature (physis) with
devastating effect.  He claims that the laws of justice, matters of convention,
should be obeyed when other people are observing us and may hold us
accountable; but, otherwise, we should follow the demands of nature.  The laws
of justice, extrinsically derived, presumably involve serving the good of others,
the demands of nature, which are internal, serving self-interest.  He even
suggests that obeying the laws of justice often renders us helpless victims of
those who do not (First, pp. 211, 232, 274, 264-266).  If there is any such
objective value as natural justice, then it is reasonable for us to attempt a
rational understanding of it.  On the other hand, if justice is merely a
construction of customary agreement, then such a quest is doomed to
frustration and failure.  With this as a backdrop, we should be able to see what
motivated Plato and Aristotle to seek a strong alternative.

a. Plato
Plato’s masterful Republic (to which we have already referred) is most obviously
a careful analysis of justice, although the book is far more wide-ranging than
that would suggest.  Socrates, Plato’s teacher and primary spokesman in the
dialogue, gets critically involved in a discussion of that very issue with three
interlocutors early on.  Socrates provokes Cephalus to say something which he
spins into the view that justice simply boils down to always telling the truth and
repaying one’s debts.  Socrates easily demolishes this simplistic view with the
effective logical technique of a counter-example:  if a friend lends you weapons,
when he is sane, but then wants them back to do great harm with them, because
he has become insane, surely you should not return them at that time and
should even lie to him, if necessary to prevent great harm.  Secondly,
Polemarchus, the son of Cephalus, jumps into the discussion, espousing the
familiar, traditional view that justice is all about giving people what is their due. 
But the problem with this bromide is that of determining who deserves what. 
Polemarchus may reflect the cultural influence of the Sophists, in specifying that
it depends on whether people are our friends, deserving good from us, or foes,
deserving harm.  It takes more effort for Socrates to destroy this conventional
theory, but he proceeds in stages:  (1) we are all fallible regarding who are true
friends, as opposed to true enemies, so that appearance versus reality makes it
difficult to say how we should treat people; (2) it seems at least as significant
whether people are good or bad as whether they are our friends or our foes; and
(3) it is not at all clear that justice should excuse, let alone require, our
deliberately harming anyone (Republic, pp. 5-11; 331b-335e).  If the first
inadequate theory of justice was too simplistic, this second one was downright
dangerous.

The third, and final, inadequate account presented here is that of the Sophist
Thrasymachus.  He roars into the discussion, expressing his contempt for all the
poppycock produced thus far and boldly asserting that justice is relative to
whatever is advantageous to the stronger people (what we sometimes call the
“might makes right” theory).  But who are the “stronger” people? 
Thrasymachus cannot mean physically stronger, for then inferior humans would
be superior to finer folks like them.  He clarifies his idea that he is referring to
politically powerful people in leadership positions.  But, next, even the strongest
leaders are sometimes mistaken about what is to their own advantage, raising
the question of whether people ought to do what leaders suppose is to their own
advantage or only what actually is so.  (Had Thrasymachus phrased this in
terms of what serves the interest of society itself, the same appearance versus
reality distinction would apply.)  But, beyond this, Socrates rejects the
exploitation model of leadership, which sees political superiors as properly
exploiting inferiors (Thrasymachus uses the example of a shepherd fattening up
and protecting his flock of sheep for his own selfish gain), substituting a service
model in its place (his example is of the good medical doctor, who practices his
craft primarily for the welfare of patients).  So, now, if anything like this is to be
accepted as our model for interpersonal relations, then Thrasymachus embraces
the “injustice” of self-interest as better than serving the interests of others in the
name of “justice.”  Well, then, how are we to interpret whether the life of justice
or that of injustice is better?  Socrates suggests three criteria for judgment: 
which is the smarter, which is the more secure, and which is the happier way of
life; he argues that the just life is better on all three counts.  Thus, by the end of
the first book, it looks as if Socrates has trounced all three of these inadequate
views of justice, although he himself claims to be dissatisfied because we have
only shown what justice is not, with no persuasive account of its actual nature
(ibid., pp. 14-21, 25-31; 338c-345b, 349c-354c).  Likewise, in Gorgias, Plato has
Callicles espouse the view that, whatever conventions might seem to dictate,
natural justice dictates that superior people should rule over and derive greater
benefits than inferior people, that society artificially levels people because of a
bias in favor of equality.  Socrates is then made to criticize this theory by
analyzing what sort of superiority would be relevant and then arguing that
Callicles is erroneously advocating injustice, a false value, rather than the
genuine one of true justice (Gorgias, pp. 52-66; 482d-493c; see, also, Laws, pp.
100-101, 172; 663, 714 for another articulation of something like Thrasymachus’
position).

In the second book of Plato’s Republic, his brothers, Glaucon and Adeimantus,

take over the role of primary interlocutors.  They quickly make it clear that they
are not satisfied with Socrates’ defense of justice.  Glaucon reminds us that there
are three different sorts of goods—intrinsic ones, such as joy, merely
instrumental ones, such as money-making, and ones that are both
instrumentally and intrinsically valuable, such as health—in order to ask which
type of good is justice.  Socrates responds that justice belongs in the third
category, rendering it the richest sort of good.  In that case, Glaucon protests,
Socrates has failed to prove his point.  If his debate with Thrasymachus
accomplished anything at all, it nevertheless did not establish any intrinsic value
in justice.  So Glaucon will play devil’s advocate and resurrect the Sophist
position, in order to challenge Socrates to refute it in its strongest form.  He
proposes to do this in three steps:  first, he will argue that justice is merely a
conventional compromise (between harming others with impunity and being
their helpless victims), agreed to by people for their own selfish good and
socially enforced (this is a crude version of what will later become the social
contract theory of justice in Hobbes); second, he illustrates our allegedly natural
selfish preference for being unjust if we can get away with it by the haunting
story of the ring of Gyges, which provides its wearer with the power to become
invisible at will and, thus, to get away with the most wicked of injustices—to
which temptation everyone would, sooner or later, rationally succumb; and,
third, he tries to show that it is better to live unjustly than justly if one can by
contrasting the unjust person whom everyone thinks just with the just person
who is thought to be unjust, claiming that, of course, it would be better to be the
former than the latter.  Almost as soon as Glaucon finishes, his brother
Adeimantus jumps in to add two more points to the case against justice:  first,
parents instruct their children to behave justly not because it is good in itself but
merely because it tends to pay off for them; and, secondly, religious teachings
are ineffective in encouraging us to avoid injustice because the gods will punish
it and to pursue justice because the gods will reward it, since the gods may not
even exist or, if they do, they may well not care about us or, if they are
concerned about human behavior, they can be flattered with prayers and bribed
with sacrifices to let us get away with wrongdoing (Republic, pp. 33-42; 357b-
366e).  So the challenge for Socrates posed by Plato’s brothers is to show the
true nature of justice and that it is intrinsically valuable rather than only
desirable for its contingent consequences.

In defending justice against this Sophist critique, Plato has Socrates construct
his own positive theory.  This is set up by means of an analogy comparing
justice, on the large scale, as it applies to society, and on a smaller scale, as it
applies to an individual soul.  Thus justice is seen as an essential virtue of both a
good political state and a good personal character.  The strategy hinges on the
idea that the state is like the individual writ large—each comprising three main
parts such that it is crucial how they are interrelated—and that analyzing justice
on the large scale will facilitate our doing so on the smaller one.  In Book IV,
after cobbling together his blueprint of the ideal republic, Socrates asks Glaucon
where justice is to be found, but they agree they will have to search for it
together.  They agree that, if they have succeeded in establishing the
foundations of a “completely good” society, it would have to comprise four
pivotal virtues:  wisdom, courage, temperance, and justice.  If they can properly
identify the other three of those four, whatever remains that is essential to a
completely good society must be justice.  Wisdom is held to be prudent
judgment among leaders; courage is the quality in defenders or protectors
whereby they remain steadfast in their convictions and commitments in the face
of fear; and temperance (or moderation) is the virtue to be found in all three
classes of citizens, but especially in the producers, allowing them all to agree
harmoniously that the leaders should lead and everyone else follow.  So now, by
this process-of-elimination analysis, whatever is left that is essential to a
“completely good” society will allegedly be justice.  It then turns out that “justice
is doing one’s own work and not meddling with what isn’t one’s own.”  So the
positive side of socio-political justice is each person doing the tasks assigned to
him or her; the negative side is not interfering with others doing their appointed
tasks.  Now we move from this macro-level of political society to the
psychological micro-level of an individual soul, pressing the analogy mentioned
above.  Plato has Socrates present an argument designed to show that reason in
the soul, corresponding to the leaders or “guardians” of the state, is different
from both the appetites, corresponding to the productive class, and the spirited
part of the soul, corresponding to the state’s defenders or “auxiliaries” and that
the appetites are different from spirit.  Having established the parallel between
the three classes of the state and the three parts of the soul, the analogy suggests
that a “completely good” soul would also have to have the same four pivotal
virtues.  A good soul is wise, in having good judgment whereby reason rules; it is
courageous in that its spirited part is ready, willing, and able to fight for its
convictions in the face of fear; and it is temperate or moderate, harmoniously
integrated because all of its parts, especially its dangerous appetitive desires,
agree that it should be always under the command of reason.  And, again, what
is left that is essential is justice, whereby each part of the soul does the work
intended by nature, none of them interfering with the functioning of any other
parts.  We are also told in passing that, corresponding to these four pivotal
virtues of the moral life, there are four pivotal vices, foolishness, cowardice, self-
indulgence, and injustice.  One crucial question remains unanswered:  can we
show that justice, thus understood, is better than injustice in itself and not
merely for its likely consequences?  The answer is that, of course, we can
because justice is the health of the soul.  Just as health is intrinsically and not
just instrumentally good, so is justice; injustice is a disease—bad and to be
avoided even if it isn’t yet having any undesirable consequences, even if nobody
is aware of it (ibid., pp. 43, 102-121; 368d, 427d-445b; it can readily be inferred
that this conception of justice is non-egalitarian; but, to see this point made
explicitly, see Laws, pp. 229-230; 756-757).

Now let us quickly see how Plato applies this theory of justice to a particular
social issue, before briefly considering the theory critically.  In a remarkably
progressive passage in Book V of his Republic, Plato argues for equal
opportunity for women.  He holds that, even though women tend to be
physically weaker than men, this should not prove an insuperable barrier to
their being educated for the same socio-political functions as men, including
those of the top echelons of leadership responsibility.  While the body has a
gender, it is the soul that is virtuous or vicious.  Despite their different roles in
procreation, child-bearing, giving birth, and nursing babies, there is no reason,
in principle, why a woman should not be as intelligent and virtuous—including
as just—as men, if properly trained.  As much as possible, men and women
should share the workload in common (Republic, pp. 125-131; 451d-457d).  We
should note, however, that the rationale is the common good of the community
rather than any appeal to what we might consider women’s rights. 
Nevertheless, many of us today are sympathetic to this application of justice in
support of a view that would not become popular for another two millennia.

What of Plato’s theory of justice itself?  The negative part of it—his critique of
inadequate views of justice—is a masterful series of arguments against attempts
to reduce justice to a couple of simplistic rules (Cephalus), to treating people
merely in accord with how we feel about them (Polemarchus), and to the power-
politics mentality of exploiting them for our own selfish purposes
(Thrasymachus).  All of these views of a just person or society introduce the sort
of relativism and/or subjectivism we have identified with the Sophists.  Thus, in
refuting them, Plato, in effect, is refuting the Sophists.  However, after the big
buildup, the positive part—what he himself maintains justice is—turns out to be
a letdown.  His conception of justice reduces it to order.  While some objective
sense of order is relevant to justice, this does not adequately capture the idea of
respecting all persons, individually and collectively, as free rational agents.  The
analogy between the state and the soul is far too fragile to support the claim that
they must agree in each having three “parts.”  The process-of-elimination
approach to determining the nature of justice only works if those four virtues
exhaust the list of what is essential here.  But do they?  What, for example, of the
Christian virtue of love or the secular virtue of benevolence?  Finally, the
argument from analogy, showing that justice must be intrinsically, and not
merely instrumentally, valuable (because it is like the combination good of
health) proves, on critical consideration, to fail.  Plato’s theory is far more
impressive than the impressionistic view of the Sophists; and it would prove
extremely influential in advocating justice as an objective, disinterested value. 
Nevertheless, one cannot help hoping that a more cogent theory might yet be
developed.

b. Aristotle
After working with Plato at his Academy for a couple of decades, Aristotle was
understandably most influenced by his teacher, also adopting, for example, a
virtue theory of ethics.  Yet part of Aristotle’s greatness stems from his capacity
for critical appropriation, and he became arguably Plato’s most able critic as
well as his most famous follower in wanting to develop a credible alternative to
Sophism.  Book V of his great Nicomachean Ethics deals in considerable depth
with the moral and political virtue of justice.  It begins vacuously enough with
the circular claim that it is the condition that renders us just agents inclined to
desire and practice justice.  But his analysis soon becomes more illuminating
when he specifies it in terms of what is lawful and fair.  What is in accordance
with the law of a state is thought to be conducive to the common good and/or to
that of its rulers.  In general, citizens should obey such law in order to be just. 
The problem is that civil law can itself be unjust in the sense of being unfair to
some, so that we need to consider special justice as a function of fairness.  He
analyzes this into two sorts:  distributive justice involves dividing benefits and
burdens fairly among members of a community, while corrective justice
requires us, in some circumstances, to try to restore a fair balance in
interpersonal relations where it has been lost.  If a member of a community has
been unfairly benefited or burdened with more or less than is deserved in the
way of social distributions, then corrective justice can be required, as, for
example, by a court of law.  Notice that Aristotle is no more an egalitarian than
Plato was—while a sort of social reciprocity may be needed, it must be of a
proportional sort rather than equal.  Like all moral virtues, for Aristotle, justice
is a rational mean between bad extremes.  Proportional equality or equity
involves the “intermediate” position between someone’s unfairly getting “less”
than is deserved and unfairly getting “more” at another’s expense.  The “mean”
of justice lies between the vices of getting too much and getting too little,
relative to what one deserves, these being two opposite types of injustice, one of
“disproportionate excess,” the other of disproportionate “deficiency”
(Nicomachean, pp. 67-74, 76; 1129a-1132b, 1134a).

Political justice, of both the lawful and the fair sort, is held to apply only to those
who are citizens of a political community (a polis) by virtue of being “free and
either proportionately or numerically equal,” those whose interpersonal
relations are governed by the rule of law, for law is a prerequisite of political
justice and injustice.  But, since individuals tend to be selfishly biased, the law
should be a product of reason rather than of particular rulers.  Aristotle is
prepared to distinguish between what is naturally just and unjust, on the one
hand, such as whom one may legitimately kill, and what is merely
conventionally just or unjust, on the other, such as a particular system of
taxation for some particular society.  But the Sophists are wrong to suggest that
all political justice is the artificial result of legal convention and to discount all
universal natural justice (ibid., pp. 77-78; 1134a-1135a; cf. Rhetoric, pp. 105-
106; 1374a-b).  What is allegedly at stake here is our developing a moral virtue
that is essential to the well-being of society, as well as to the flourishing of any
human being.  Another valuable dimension of Aristotle’s discussion here is his
treatment of the relationship between justice and decency, for sometimes
following the letter of the law would violate fairness or reasonable equity.  A
decent person might selfishly benefit from being a stickler regarding following
the law exactly but decide to take less or give more for the sake of the common
good.  In this way, decency can correct the limitations of the law and represents
a higher form of justice (Nicomachean, pp. 83-84; 1137a-1138a).

In his Politics, Aristotle further considers political justice and its relation to

equality.  We can admit that the former involves the latter but must carefully
specify by maintaining that justice involves equality “not for everyone, only for
equals.”  He agrees with Plato that political democracy is intrinsically unjust
because, by its very nature, it tries to treat unequals as if they were equals. 
Justice rather requires inequality for people who are unequal.  But, then,
oligarchy is also intrinsically unjust insofar as it involves treating equals as
unequal because of some contingent disparity, of birth, wealth, etc.  Rather,
those in a just political society who contribute the most to the common good will
receive a larger share, because they thus exhibit more political virtue, than those
who are inferior in that respect; it would be simply wrong, from the perspective
of political justice, for them to receive equal shares.  Thus political justice must
be viewed as a function of the common good of a community.  It is the attempt
to specify the equality or inequality among people, he admits, that constitutes a
key “problem” of “political philosophy.”  He thinks we can all readily agree that
political justice requires “proportional” rather than numerical equality.  But
inferiors have a vested interest in thinking that those who are equal in some
respect should be equal in all respects, while superiors are biased, in the
opposite direction, to imagine that those who are unequal in some way should
be unequal in all ways.  Thus, for instance, those who are equally citizens are not
necessarily equal in political virtue, and those who are financially richer are not
necessarily morally or mentally superior.  What is relevant here is “equality
according to merit,” though Aristotle cannot precisely specify what, exactly,
counts as merit, for how much it must count, who is to measure it, and by what
standard.  All he can suggest, for example in some of his comments on the
desirable aristocratic government, is that it must involve moral and intellectual
virtue (Politics, pp. 79, 81, 86, 134, 136, 151, 153; 1280a, 1281a, 1282b, 1301a-
1302a, 1307a, 1308a).

Let us now consider how Aristotle applies his own theory of justice to the social
problem of alleged superiors and inferiors, before attempting a brief critique of
that theory.  While Plato accepted slavery as a legitimate social institution but
argued for equal opportunity for women, in his Politics, Aristotle accepts sexual
inequality while actively defending slavery.  Anyone who is inferior intellectually
and morally is properly socio-politically inferior in a well-ordered polis.  A
human being can be naturally autonomous or not, “a natural slave” being
defective in rationality and morality, and thus naturally fit to belong to a
superior; such a human can rightly be regarded as “a piece of property,” or
another person’s “tool for action.”  Given natural human inequality, it is
allegedly inappropriate that all should rule or share in ruling.  Aristotle holds
that some are marked as superior and fit to rule from birth, while others are
inferior and marked from birth to be ruled by others.  This supposedly applies
not only to ethnic groups, but also to the genders, and he unequivocally asserts
that males are “naturally superior” and females “naturally inferior,” the former
being fit to rule and the latter to be ruled.  The claim is that it is naturally better
for women themselves that they be ruled by men, as it is better for “natural
slaves” that they should be ruled by those who are “naturally free.”  Now
Aristotle does argue only for natural slavery.  It was the custom (notice the
distinction, used here, between custom and nature) in antiquity to make slaves
of conquered enemies who become prisoners of war.  But Aristotle (like Plato)
believes that Greeks are born for free and rational self-rule, unlike non-Greeks
(“barbarians”), who are naturally inferior and incapable of it.  So the fact that a
human being is defeated or captured is no assurance that he is fit for slavery, as
an unjust war may have been imposed on a nobler society by a more primitive
one.  While granting that Greeks and non-Greeks, as well as men and women,
are all truly human, Aristotle justifies the alleged inequality among them based
on what he calls the “deliberative” capacity of their rational souls.  The natural
slave’s rational soul supposedly lacks this, a woman has it but it lacks the
authority for her to be autonomous, a (free male) child has it in some
developmental stage, and a naturally superior free male has it developed and
available for governance (ibid., pp. 7-11, 23; 1254a-1255a, 1260a).

This application creates a helpful path to a critique of Aristotle’s theory of

justice.  If we feel that it is unjust to discriminate against people merely on
account of their gender and/or ethnic origin, as philosophers, we try to identify
the rational root of the problem.  If our moral intuitions are correct against
Aristotle (and some would even call his views here sexist and racist), he may be
mistaken about a matter of fact or about a value judgment or both.  Surely he is
wrong about all women and non-Greeks, as such, being essentially inferior to
Greek males in relevant ways, for cultural history has demonstrated that, when
given opportunities, women and non-Greeks have shown themselves to be
significantly equal.  But it appears that Aristotle may also have been wrong in
leaping from the factual claim of inequality to the value judgment that it is
therefore right that inferiors ought to be socially, legally, politically, and
economically subordinate—like Plato and others of his culture (for which he is
an apologist here), Aristotle seems to have no conception of human rights as
such.  Like Plato, he is arguing for an objective theory of personal and social
justice as a preferable alternative to the relativistic one of the Sophists.  Even
though there is something attractive about Aristotle’s empirical (as opposed to
Plato’s idealistic) approach to justice, it condemns him to the dubious position
of needing to derive claims about how things ought to be from factual claims
about the way things actually are.  It also leaves Aristotle with little viable means
of establishing a universal perspective that will respect the equal dignity of all
humans, as such.  Thus his theory, like Plato’s, fails adequately to respect all
persons as free, rational agents.  They were so focused on the ways in which
people are unequal, that they could not appreciate any fundamental moral
equality that might provide a platform for natural human rights.

2. Medieval Christianity
When Christian thinkers sought to develop their own philosophies in the middle
ages (“medieval” meaning the middle ages and “middle” in the sense of being
between antiquity and modernity), they found precious basic building-blocks in
ancient thought.  This included such important post-Aristotelians as the
enormously influential Roman eclectic Cicero, such prominent Stoics as Marcus
Aurelius (a Roman emperor) and Epictetus (a Greek slave of the Romans), and
neo-Platonists like Plotinus.  But the two dominant paths that medieval
philosophy would follow for its roughly thousand year history had been blazed
by Plato and Aristotle.  More specifically, Augustine uses Platonic (and neo-
Platonic) philosophy to the extent that he can reconcile it with Christian
thought; Aquinas, many centuries later, develops a great synthesis of Christian
thought (including that of Augustine) and Aristotelian philosophy.  A great
difference, however, between their philosophies and those of Hellenic thinkers
such as Plato and Aristotle stems from the commitment of these Christians to
the authority of the Hebrew and Christian scriptures.  Aquinas would later agree
with Augustine (who is accepting the mandate of Isaiah 7:9) that the quest for
philosophical understanding should begin with belief in religious traditions
(Choice, pp. 3, 32).  Both the Old Testament and the New Testament call for just
behavior on the part of righteous people, with injustice being a sin against God’s
law, the references being too numerous to cite (but see Job 9:2, Proverbs 4:18,
Proverbs 10:6-7, Ecclesiastes 7:20, Matthew 5:45, Philippians 4:8, and Hebrews
12:23).  The claim that God’s justice will prevail in the form of divine judgment
is both a promise for the just and a threat for the unjust.  Righteousness is
identified with mercy as well as with justice (e.g., Micah 6:8 and Matthew 5:7)
and involves our relationship with God as well as with fellow humans.  The ten
commandments of the Old Testament (Exodus 20:1-17) are prescriptions
regarding how the righteous are to relate to God as well as to one another.  In
the New Testament, Jesus of Nazareth interprets how the righteous are to live
(Matthew 22:36-40) in terms of love of both God and their neighbors; the
concept of one’s neighbor is meant to extend even to strangers, as is illustrated
in the parable of the Good Samaritan (Luke 10:29-37).  In the Beatitudes
beginning the Sermon on the Mount, Jesus expands on this gospel of love by
advocating that his followers go beyond the duties of justice to behave with
compassion in certain supererogatory ways (Matthew 5:3-12).  All of this
scriptural tradition essentially influenced medieval thinkers such as Augustine
and Aquinas in a way that distinguishes them from ancient Greek philosophers
such as Plato and Aristotle.

a. Augustine
Aurelius Augustine was born and raised in the Roman province of North Africa;
during his life, he experienced the injustices, the corruption, and the erosion of
the Roman Empire.  This personal experience, in dialectical tension with the
ideals of Christianity, provided him with a dramatic backdrop for his religious
axiology.  Philosophically, he was greatly influenced by such neo-Platonists as
Plotinus.  His Christian Platonism is evident in his philosophical dialogue On
Free Choice of the Will, in which he embraces Plato’s view of four central moral
virtues (which came to be called “cardinal,” from the Latin word for hinges,
these being metaphorically imaginable as the four hinges on which the door of
morality pivots).  These are prudence (substituted for wisdom), fortitude or
courage, temperance, and justice.  His conception of justice is the familiar one of
“the virtue by which all people are given their due.”  But this is connected to
something new and distinctly Christian—the distinction between the temporal
law, such as the law of the state, and the eternal, divine law of God.  The eternal
law establishes the order of God’s divine providence.  And, since all temporal or
human law must be consistent with God’s eternal law, Augustine can draw the
striking conclusion that, strictly speaking, “an unjust law is no law at all,” an
oxymoron (Choice, pp. 20, 11, 8; cf. Religion, p. 89, for an analysis of justice that
relates it to love).  Thus a civil law of the state that violates God’s eternal law is
not morally binding and can be legitimately disobeyed in good conscience.  This
was to have a profound and ongoing influence on Christian ethics.

In his masterpiece, The City of God, Augustine draws the dramatic conclusion

from this position that the Roman Empire was never a truly just political
society.  He expresses his disgust over its long history of “revolting injustice.” 
Rome was always a pagan, earthly city, and “true justice” can allegedly only be
found in a Christian “city of God.”  The just, rather than the powerful, should
rule for the common good, rather than serving their own self-interest.  He
strikingly compares unjust societies, based on might rather than on right, to
“gangs of criminals on a large scale,” for, without justice, a kingdom or empire is
merely ruled by the arbitrary fiat of some leader(s).  A genuinely just society
must be based on Christian love, its peaceful order established by the following
of two basic rules—that people harm nobody and that they should try to help
everyone to the extent that they can do so (City, pp. 75, 67, 75, 138-139, 873).

Despite his Christian commitment to love and peace, Augustine is not a pacifist
and can support “just wars” as morally permissible and even as morally
obligatory.  Every war aims at the order of some sort of established peace; while
an unjust war aims to establish an unjust peace of domination, a just war aims
to establish a “just peace.”  He agrees with Cicero that a just war must be
defensive rather than aggressive (ibid., pp. 861-862, 866, 868-869, 1031).  In a
letter (# 138) to Marcellinus, Augustine uses scripture to deny that Christian
doctrine is committed to pacifism, though wars should be waged, when
necessary, with a benevolent love for the enemy.  In a letter (# 189) to Boniface,
he maintains that godly, righteous people can serve in the military, again citing
scripture to support his position.  He repeats the view that a just war should aim
at establishing a lasting and just peace and holds that one must keep faith with
both one’s allies and one’s enemies, even in the awful heat of warfare. 
Augustine’s most important treatment of the just war theory is contained in his
writing Against Faustus the Manichean, where he analyzes the evils of war in
terms of the desire to harm others, the lust for revenge and cruelty, and the wish
to dominate other people.  In addition to the condition that a just war must aim
at establishing a just and lasting peace, a second condition is that it must be
declared by a leader or body of leaders, with the “authority” to do so, after
deliberating that it is justified.  Again Augustine makes it clear that he is no
pacifist (Political, pp. 209, 219-223).
While this is a very valuable application of his theory of justice, this doctrine of
the just war standing the test of time to this very day, the general theory on
which it is based is more problematic.  The unoriginal (and uninspired)
conception of justice as giving others their due had already become familiar to
the point of being trite.  It remains vulnerable to the serious problems of
vagueness already considered:  what is the relevant criterion whereby it should
be determined who deserves what, and who is fit to make such a judgment? 
But, also, Augustine should have an advantage over the ancient Greeks in
arriving at a theory of justice based on universal equality on account of the
Christian doctrine (not to mention because of the influences of Cicero, the
Stoics, and Plotinus) that all humans are equally children of God. 
Unfortunately, his zealous Christian evangelism leads him to identify justice
itself, in a divisive, intolerant, polemical way, with the Christian church’s idea of
what God requires, so that only a Christian society can possibly qualify as just,
as if a just political society would need to be a theocracy.  Thus, while he has
some sense of some moral or spiritual equality among humans, it does not issue
in equal respect for all persons as free, rational agents, allowing him, for
example, to accept the institution of slavery as a just punishment for sin, despite
the belief that God originally created humans as naturally free, because of the
idea that we have all been corrupted by original sin (City, pp. 874-875).

b. Aquinas
As Augustine is arguably the greatest Christian Platonist, so Thomas Aquinas,
from what is now Italy, is the greatest Christian Aristotelian.  Nevertheless, as
we shall see, his theory of justice is also quite compatible with Augustine’s. 
Aquinas discusses the same four cardinal moral virtues, including that of
justice, in his masterpiece, the multi-volume Summa Theologica.  No more a
socio-political egalitarian than Plato, Aristotle, or Augustine, he analyzes it as
calling for proportional equality, or equity, rather than any sort of strict
numerical equality, and as a function of natural right rather than of positive
law.  Natural right ultimately stems from the eternal, immutable will of God,
who created the world and governs it with divine providence.  Natural justice
must always take precedence over the contingent agreements of our human
conventions.  Human law must never contravene natural law, which is reason’s
way of understanding God’s eternal law.  He offers us an Aristotelian definition,
maintaining that “justice is a habit whereby a man renders to each one his due
by a constant and perpetual will.”  As a follower of Aristotle, he defines concepts
in terms of genus and species.  In this case, the general category to which justice
belongs is that it is a moral habit of a virtuous character.  What specifically
distinguishes it from other moral virtues is that by justice, a person is
consistently committed to respecting the rights of others over time.  Strictly
speaking, the virtue of justice always concerns interpersonal relations, so that it
is only metaphorically that we can speak of a person being just to himself.  In
addition to legal justice, whereby a person is committed to serving the “common
good” of the entire community, there is “particular justice,” which requires that
we treat individuals in certain ways.  Justice is a rational mean between the
vicious extremes of deficiency and excess, having to do with our external actions
regarding others.  Like many of his predecessors, Aquinas considers justice to be
preeminent among the moral virtues.  He agrees with Aristotle in analyzing
particular justice into two types, which he calls “distributive” and
“commutative”; the former governs the proportional distribution of common
goods, while the latter concerns the reciprocal dealings between individuals in
their voluntary transactions (Law, pp. 137, 139, 145, 147, 155, 160, 163, 165).

Aquinas applies this theory of justice to many social problems.  He maintains

that natural law gives us the right to own private property.  Given this natural
right, theft (surreptitiously stealing another’s property) and robbery (taking it
openly by force or the threat of violence) must be unjust, although an exception
can arise if the thief and his family are starving in an environment of plenty, in
which case, stealing is justified and, strictly speaking, not theft or robbery at all. 
Secondly, Aquinas refines the Augustinian just war theory by articulating three
conditions that must jointly be met in order for the waging of war to be just:  (a)
it must be declared by a leader with socio-political authority; (b) it must be
declared for a “just cause,” in that the people attacked must be at fault and thus
deserve it; and (c) those going to war must intend good and the avoidance of
evil.  It is not justifiable deliberately to slay innocent noncombatants.  It is
legitimate to kill another in self-defense, though one’s intention should be that
of saving oneself, the taking of the other’s life merely being the necessary means
to that good end (this, by the way, is the source of what later evolves into the
moral principle of “double effect”).  Even acting in self-defense must be done in
reasonable proportion to the situation, so that it is wrong to employ more force
than is necessary to stop aggression.  Even killing another unintentionally can
be unjust if done in the course of committing another crime or through criminal
negligence.  Thirdly, while Aquinas thinks we should tolerate the religious
beliefs of those who have never been Christians, so that it would be unjust to
persecute them, he thinks it just to use force against heretics who adhered to but
then rejected orthodox Christianity, even to the point of hurting them, as in the
Inquisition, for the good of their own souls.  In an extreme case of recalcitrant
heretics who will not be persuaded to return to the truth of Christianity, it is
allegedly just that they should be “exterminated” by execution rather than being
allowed to corrupt other Christians by espousing their heterodox religious
views.  Fourth, like Augustine, Aquinas accepts slavery, so long as no Christian
is the slave of a non-Christian (ibid., pp. 178-183, 186, 221, 224, 226, 228, 250,
256, 253), and considers it just that women should be politically and
economically “subject” to men.  Although he considers women to be fully
human, he agrees with Aristotle that they are “defective and misbegotten,” the
consequence allegedly being inferior rational discretion (Summa, pp. 466-467).

From a critical perspective, his general theory of justice is, by now, quite
familiar, a sort of blend of Aristotle’s and Augustine’s, and marked by the same
flaws as theirs.  His applications of the theory can be regarded as indicative of
its problematic character:  (a) given the assumption of a right to own private
property, his discussion of the injustices of theft and robbery seems quite
reasonable; (b) assuming that we have a right to self-defense, his analysis of the
legitimacy of killing in a just war does also; (c) his attempted defense of the
persecution of religious heretics, even unto death, invites suspicions of
dogmatic, intolerant fanaticism on his part; and (d) his acceptance of slavery
and the political and economic subjection of women as just is indicative of an
empirical orientation that is too uncritically accepting of the status quo.  Here
again the Christian belief that all humans are personal creatures of a loving God
is vitiated by an insufficient commitment to the implications of that, regarding
socio-political equality, so that only some humans are fully respected as free,
rational agents.  The rationalistic theories of Plato and Augustine and the
classical empirical theories of Aristotle and Aquinas all leave us hoping that
preferable alternatives might be forthcoming.

3. Early Modernity
Although only half as much time elapses between Aquinas and Hobbes as did
between Augustine and Aquinas, from the perspective of intellectual history, the
period of modernism represents a staggering sea-change.  We have neither the
time nor the space to consider the complex causal nexus that explains this fact;
but, for our purposes, suffice it to say that the Protestant Reformation, the
revolution of the new science, and the progressive willingness publicly to
challenge authority (both political and religious) converge to generate a
strikingly different philosophical mentality in the seventeenth century.  In the
previous century, the Protestant Reformation shattered the hegemony of the
Roman Catholic Church, so that thinkers need not feel so constrained to adhere
to established orthodoxy.  The naturalistic worldview of the sixteenth and early
seventeenth centuries that eventuated in an empirical and experimental (non-
dogmatic) methodology in both natural and political science set an example for
philosophers.  Thinkers of the modern era became increasingly comfortable
breaking from the mainstream to pursue their own independent reasoning. 
Although the influence of great ancient philosophers like Plato and Aristotle and
of great medieval thinkers such as Augustine and Aquinas would persist, there
was no returning to their bygone perspectives.  This vitally affects moral and
political theory, in general, and views on justice, in particular.  As we shall see in
this section, views of justice as relative to human needs and interests became
prominent as they had not been for a couple of millennia.  This will locate
Hobbes and Hume closer to the Sophists than had been fashionable since pre-
Socratic times in philosophy, regarding justice as a social construct.

a. Hobbes
Whereas Plato, Aristotle, Augustine, and Aquinas all offer accounts of justice
that represent alternatives to Sophism, Thomas Hobbes, the English radical
empiricist, can be seen as resurrecting the Sophist view that we can have no
objective knowledge of it as a moral or political absolute value.  His radical
empiricism does not allow him to claim to know anything not grounded in
concrete sense experience.  This leads him in Leviathan, his masterpiece, to
conclude that anything real must be material or corporeal in nature, that body is
the one and only sort of reality; this is the philosophical position of materialistic
monism, which rules out the possibility of any spiritual substance.  On this view,
“a man is a living body,” only different in kind from other animals, but with no
purely spiritual soul separating him from the beasts.  Like other animals, man is
driven by instinct and appetite, his reason being a capacity of his brain for
calculating means to desirable ends.  Another controversial claim here is that all
actions, including all human actions, are causally determined to occur as they
do by the complex of their antecedent conditions; this is causal determinism. 
What we consider voluntary actions are simply those we perform in which the
will plays a significant causal role, human freedom amounting to nothing more
exalted than the absence of external restraints.  Like other animals, we are
always fundamentally motivated by a survival instinct and ultimately driven by
self-interest in all of our voluntary actions; this is psychological egoism.  It is
controversial whether he also holds that self-interest should always be our
fundamental motivation, which is ethical egoism.  In his most famous Chapter
XIII, Hobbes paints a dramatic and disturbing portrait of what human life
would be like in a state of nature—that is, beyond the conventional order of civil
society.  We would be rationally distrustful of one another, inclined to be anti-
social, viewing others as threats to our own satisfaction and well-being. 
Interpersonal antagonism would be natural; and, since there would exist no
moral distinctions between right and wrong, just and unjust, violent force and
fraudulent deception would be desirable virtues rather than objectionable vices. 
In short, this would be a state of “war of every man against every man,” a
condition in which we could not reasonably expect to survive for long or to enjoy
any quality of life for as long as we did.  We are smart enough to realize that this
would be a condition in which, as Hobbes famously writes, “the life of man”
would inevitably be “solitary, poor, nasty, brutish, and short.”  Fortunately, our
natural passions of fear, desire, and hope motivate us to use reason to calculate
how we might escape this hellish state.  Reason discovers a couple of basic laws
of nature, indicating how we should prudently behave if we are to have any
reasonable opportunity to survive, let alone to thrive.  The first of these is
double-sided:  the positive side holds that we should try to establish peace with
others, for our own selfish good, if we can; the negative side holds that, if we
cannot do that, then we should do whatever it takes to destroy whoever might be
a threat to our interests.  The second law of nature maintains that, in order to
achieve peace with others, we must be willing to give up our right to harm them,
so long as they agree to reciprocate by renouncing their right to harm us.  This
“mutual transferring of right,” established by reciprocal agreement, is the so-
called social contract that constitutes the basis of civil society; and the
agreement can be made either explicitly or implicitly (Leviathan, pp. 261-262,
459-460, 79, 136, 82, 95, 74-78, 80-82; for comparable material, see Elements,
pp. 78-84, 103-114, as well as Citizen, pp. 109-119, 123-124).
What is conspicuously missing here is any sense of natural justice or injustice. 
In the state of nature, all moral values are strictly relative to our desires: 
whatever seems likely to satisfy our desires appears “good” to us, and whatever
seems likely to frustrate our desires we regard as “evil.”  It’s all relative to what
we imaginatively associate with our own appetites and aversions.  But as we
move from this state of nature to the state of civil society by means of the social
contract, we create the rules of justice by means of the agreements we strike
with one another.  Prior to the conventions of the contract, we were morally free
to try to do whatever we wished.  But when a covenant is made, then to break it
is unjust; and the definition of injustice is no other than the not performance of
covenant.  What is not unjust, is just in civil society.  This turns out to be the
third law of nature, that, in the name of justice, we must try to keep our
agreements.  In civil society, we may justly do anything we have not, at least
implicitly, committed ourselves not to do.  A just person typically does just
actions, though committing one or a few unjust actions does not automatically
render that person unjust, especially if the unjust behavior stems from an error
or sudden passion; on the other hand, a person who is typically inclined to
commit unjust actions is a guilty person.  Still, if we are as selfishly motivated by
our own desires as Hobbes maintains, why should we not break our word and
voluntarily commit injustice, if doing so is likely to pay off for us and we imagine
we might get away with it (remember the problem posed by Glaucon with the
story of the ring of Gyges)?  Clearly one more element is needed to prevent the
quick disintegration of the rules of justice so artificially constructed by
interpersonal agreement.  This is the power of sovereign authority.  We need
laws codifying the rules of justice; and they must be so vigilantly and relentlessly
enforced by absolute political power that nobody in his right mind would dare to
try to violate them.  People simply cannot be trusted to honor their social
commitments without being forced to do so, since “covenants without the sword
are but words, and of no strength to secure a man at all.”  In other words, we
must sacrifice a great deal of our natural liberty to achieve the sort of security
without which life is hardly worth living.  In civil society, our freedom is relative
to the lack of specified obligations, what Hobbes calls “the silence of the law.”  If
we worry that this invests too much power in the government, which may abuse
that power and excessively trample on our freedom, the (cynical) response is
that this is preferable to the chaos of the state of nature or to the horrors of civil
war (Leviathan, pp. 28-29, 89, 93, 106, 109, 143, 117; for comparable material,
see Elements, pp. 88-89, Citizen, pp. 136-140, and Common, p. 34).  One of the
most crucial problems of political philosophy is where to strike the balance
between personal liberty and public order; Hobbes is, perhaps, more willing
than most of us to give up a great deal of the former in order to secure the latter.

As we have with earlier thinkers, let us see how Hobbes applies this theory of
justice, as a prelude to evaluating it critically.  He compares the laws of civil
society to “artificial chains” binding us to obey the sovereign authority of the
state in the name of justice.  The third law of nature, the law of justice, obliges
us to obey the “positive” laws of the state.  Any deliberate violation of civil law is
a “crime.”  Now the social problem to be considered is that of criminal
punishment.  This deliberately inflicts some sort of “evil” on an alleged criminal
for violating civil law.  Its rationale is to enforce obedience to the law itself and,
thus, to promote security and public order.  Hobbes lays down various
conditions that must be met in order for such an infliction of evil to qualify as
legitimate “punishment,” including that no retroactive punishment is
justifiable.  He also analyzes five sorts of criminal punishment—“corporal,
or pecuniary, or ignominy, or imprisonment, or exile,” allowing for a
combination of them; he also specifies that the corporal sort can be capital
punishment.  It would be wrong for the state deliberately to punish a member of
civil society believed to be innocent; indeed, strictly speaking, it would not even
qualify as “punishment,” as it fails to meet an essential part of the definition. 
The severity of punishment should be relative to the severity of the crime
involved, since its rationale is to deter future violations of civil law (Leviathan,
pp. 138, 173, 175, 185, 190, 203-208, 230; see, also, Elements, pp. 177-
182, and Citizen, pp. 271-279; near the end of his verse autobiography—
Elements, p. 264—Hobbes writes, “Justice I Teach, and Justice Reverence”).

While this is a decent consequentialist theory of crime and punishment, the

more general view of justice from which it is derived is far more problematic.  It
does stand in sharp contrast to the theories of Plato, Aristotle, Augustine, and
Aquinas.  It does revive something like the Sophist theory to which they were all
advocating alternatives.  And it does reflect the naturalistic approach
represented by the new science.  However, all the foundational elements
supporting it are quite dubious:  the radical empiricism, the materialism, the
determinism, the egoism, the moral relativism, and the narrow conception of
human reason.  Without these props, this theory of justice as artificially
constructed by us and purely a function of our interpersonal agreements seems
entirely arbitrary.  But in addition to its being insufficiently justified, this theory
of justice would justify too much.  For example, what would prevent its
involving a justification of slavery, if the alternative for the slaves were death as
enemies in a state of nature?  Even apart from the issue of slavery, in the
absence of any substantive human rights, minorities in civil society might be
denied any set of civil liberties, such as the right to adopt religious practices to
which they feel called in conscience.  Hobbes’s conception of justice is
reductionistic, reducing it to conventional agreements that seem skewed to
sacrifice too much liberty on the altar of law and order.

b. Hume
As a transition between Hobbes and Hume, brief mention can be made of John
Locke, the most important political philosopher between them.  (The reason he
is not being considered at length here is that he does not offer a distinctive
general theory of justice.)  In his masterful Second Treatise of Government,
Locke describes a state of nature governed by God’s law but insecure in that
there is no mechanism for enforcing it, when the natural rights of property—
comprising one’s life, liberty, and estates—are violated.  In order to protect such
property rights, people agree to a social contract that moves them from that
state of nature to a state of political society, with government established to
enforce the law.  Another great social contract theorist between Hobbes and
Hume who is worth mentioning here (again he gives us no distinctive theory of
justice) is Jean-Jacques Rousseau.  In The Social Contract, he maintains that, in
a well-ordered society, the general will (rather than the will of any individual or
group of individuals) must prevail.  True freedom in society requires following
the general will, and those who do not choose to do so can legitimately be forced
to do so.  A human being is allegedly so transformed by the move from the state
of nature to that of civil society as to become capable of such genuine freedom as
will allow each citizen to consent to all the laws out of deference to the common
good.   David Hume, an eighteenth-century Scottish thinker, who is very
influenced by Locke’s focus on property while rejecting the social contract
theory of Hobbes, Locke, and Rousseau, is an interesting philosopher to
consider in relation to Hobbes.  Like Hobbes, Hume is a radical empiricist and a
determinist who is skeptical of justice as an objective, absolute virtue.  But
Hume does not explicitly embrace materialism, is not a psychological or ethical
egoist, and famously attacks the social contract theory’s account of moral and
political obligation on both historical grounds (there is no evidence for it, and
history shows that force rather than consent has been the basis of government)
and philosophical grounds (even if our ancestors had given their consent, that
would not be binding on us, and utility is a more plausible explanation of
submission than genuine agreement) alike (Essays, pp. 186-201).  In the third
section of his Enquiry concerning the Principles of Morals, Hume argues that
“public utility is the sole origin of justice.”  To place that claim in context, we can
note that, like Hobbes, Hume sees all values, including that of justice, as derived
from our passions rather than (as Plato, Aristotle, Augustine, and Aquinas
thought) from reason.  Any virtue, he maintains, is desirable in that it provides
us with the pleasant feeling of approval; and any vice, including that of injustice,
is undesirable in that it provides us with the painful sense of disapproval.  In
order to qualify as a virtue, a quality must be “useful or agreeable to the person
himself or to others.”  It is possible for some virtues to be rich enough to fit
appropriately in more than one of these four categories (for example,
benevolence seems to be useful and agreeable to both the benevolent person and
to others); but justice is purportedly a virtue only because it is useful to others,
as members of society.  Hume offers us a unique and fascinating argument to
prove his point.  He imagines four hypothetical scenarios, in which either
human nature would be radically different (utterly altruistic or brutally selfish)
or our environment would be so (with everything we desire constantly and
abundantly available or so destitute that hardly anyone could survive), allegedly
showing that, in each of them, justice would not be a virtue at all.  His
conclusion is that justice is only a virtue because, relative to reality, which is
intermediate among these extremes, it is beneficial to us as members of society. 
He also refuses to identify justice with “perfect equality,” maintaining that the
ideal of egalitarianism is both “impracticable” and “extremely pernicious to
human society.”  For Hume, the rules of justice essentially involve protecting
private property, although property rights are not absolute and may be abridged
in extreme cases where “public safety” and the common good require it.  Even
international relations normally require that “rules of justice” be observed for
mutual advantage, although public utility can also require that they should be
suspended (Enquiry, pp. 20, 85, 72, 21-25, 28-35; see also Essays, pp. 20, 202). 
Though different from Hobbes’s theory, this one also leans towards the Sophist
view of justice as conventional and relative.

In his masterpiece, A Treatise of Human Nature, Hume makes the striking

claim, “Reason is, and ought only to be the slave of the passions,” which rules
out all forms of ethical rationalism.  He also makes a remarkable distinction
between descriptive language regarding what “is, and is not,” on the one hand,
and prescriptive language concerning what “ought, or ought not” to be, on the
other, challenging the possibility of ever justifying value claims by means of any
factual ones, of logically inferring what should be from what is.  The second part
of Book 3 of Hume’s Treatise deals extensively with justice.  Here he calls it an
“artificial” but “not arbitrary” virtue, in that we construct it as a virtue for our
own purposes, relative to our needs and circumstances, as we experience them. 
It is valuable as a means to the end of social cooperation, which is mutually
“advantageous.”   An especially beneficial, if unnatural, convention is respecting
others’ property, which is what the rules of justice essentially require of us.  The
psychological grounds of our sense of justice are a combination of “self-interest”
and “sympathy” for others.  He holds a very conservative view of property rights,
in that, normally, people should be allowed to keep what they already have
acquired.  Indeed, justice normally comprises three principles—“of the stability
of possession, of its transference by consent, and of the performance of
promises.”  He rejects the traditional definition of justice as giving others their
due, because it rashly and wrongly assumes that “right and property” have prior
objective reality independent of conventions of justice.  Internationally, the
rules of justice assume the status of “the law of nations,” obliging civilized
governments to respect the ambassadors of other countries, to declare war prior
to engaging them in battle, to refrain from using poisonous weapons against
them, and so forth.  The rationale for such principles of international justice is
that they reduce the horrors of war and facilitate the advantages of peace.  By
respecting other societies’ possessions, leaders minimize the likelihood of war;
by respecting the transference of possessions by mutual consent, they enhance
the possibilities of international trade; and by keeping their promises, they
create a climate for peaceful alliances.  A bit later, Hume adopts a position
which, in the twentieth century, has been called a “rule utilitarian” view of
justice, writing that, though individual acts of justice might be contrary to public
utility, they ought to be performed if they are conducive to “a general scheme or
system” of conduct that benefits society as a whole (Treatise, pp. 266, 302, 311,
307, 312, 315, 320-321, 323, 337-338, 362-363, 370-371).  Yet the rules of justice
that are normally conducive to public utility are never absolute and can be
legitimately contravened where following them would seem to do more harm
than good to our society.  He applies this view to the issue of civil disobedience,
which is normally unjust because it threatens “public utility” but can be justified
as a last resort “in extraordinary circumstances” when that same public utility is
in jeopardy (Essays, pp. 202-204).  Whether that is or is not the case in specific
circumstances becomes a judgment call.

Hume is important here because of a convergence of several factors.  First, like

the Sophists and Hobbes, he makes justice a social construct that is relative to
human needs and interests.  Second, like Hobbes, he associates it fundamentally
with human passions rather than with reason.  Third, the virtue of justice and
the rules of justice are essentially connected to the protection of private
property.  And, fourth, he considers public utility to be the sole basis of justice. 
This theory would prove extremely influential, in that Kant will take issue with
it, while utilitarians like Mill will build on its flexibility.  This sort of flexibility is
both a strength and a weakness of Hume’s theory of justice.  While it may be
attractive to allow for exceptions to the rules, this also creates a kind of
instability.  Is justice merely an instrumental good, having no intrinsic value?  If
that were the case, then it would make sense to say that the role of reason is
simply to calculate the most effective means to our most desirable ends.  But
then, assuming that our ends were sufficiently desirable, any means necessary
to achieve them would presumably be justifiable—so that, morally and
politically, anything goes, in principle, regardless how revolting.  Finally, notice
that Hume himself, because of the empirical nature of his practical philosophy,
fails to avoid the “is-ought” trap against which he so deftly warned us:  because
some end is sufficiently desired, whatever means are necessary, or even most
effective, to achieve it ought to be pursued.  Is this the best we can do in our
pursuit of an adequate theory of justice?

4. Recent Modernity
Moving from one of the greatest philosophers of the Enlightenment to the other,
we shall see that Kant will take more seriously the “is-ought” challenge than
Hume himself did.  As justice is both a moral and a political virtue, helping to
prescribe both a good character and right conduct, the question of how such
obligations arise is crucial.  For Hume, we ought to pursue virtue (including
justice) because it (allegedly) is agreeable and/or useful to do so.  But, then,
what is the logical link here?  Why should we, morally speaking, act for the sake
of agreeableness and utility?  For Kant, the reason we should choose to do what
is right has nothing to do with good consequences.  It is merely because it is the
right thing to do.  Conceding that prescriptive “ought” claims can never be
logically deduced from any set of factually descriptive “is” claims, Kant will
forsake the empirical approach to justice (of Hobbes and Hume) in favor of the
sort of rationalistic one that will revert to seeing it as an absolute value, not to
be compromised, regardless of circumstances and likely consequences.  Then we
shall consider the utilitarian response to this, as developed by the philosopher
who is, arguably, the greatest consequentialist of modern times, John Stuart
Mill, who, as an empiricist, like Hobbes and Hume, will make what is right a
function of what is good.

a. Kant
Immanuel Kant, an eighteenth-century German professor from East Prussia,
found his rationalistic philosophical convictions profoundly challenged by
Hume’s formidable skepticism (as well as being fascinated by the ideas of
Rousseau).  Even though he was not convinced by it, Kant was sufficiently
disturbed by it that he committed decades to trying to answer it, creating a
revolutionary new philosophical system in order to do so.  This system includes,
but is far from limited to, a vast, extensive practical philosophy, comprising
many books and essays, including a theory of justice.  It is well known that this
practical philosophy—including both his ethical theory and socio-political
philosophy—is the most renowned example of deontology (from the Greek,
meaning the study or science of duty).  Whereas teleological or consequentialist
theories (such as those of Hobbes and Hume) see what is right as a function of
and relative to good ends, a deontological theory such as Kant’s sees what is
right as independent of what we conceive to be good and, thus, as potentially
absolute.  Justice categorically requires a respect for the right, regardless of
inconvenient or uncomfortable circumstances and regardless of desirable and
undesirable consequences.  Because of the “is-ought” problem, the best way to
proceed is to avoid the empirical approach that is necessarily committed to
trying to derive obligations from alleged facts.

This is precisely Kant’s approach in the foundational book of his system of

practical philosophy, his Grounding for the Metaphysics of Morals.  He argues,
in its Preface, that, since the moral law “must carry with it absolute necessity”
and since empiricism only yields “contingent and uncertain” results, we must
proceed by way of “pure practical reason, “ which would be, to the extent
possible, “purified of everything empirical,” such as physiological, psychological,
and environmental contingencies.  On this view, matters of right will be equally
applicable to all persons as potentially autonomous rational agents, regardless
of any contingent differences, of gender, racial or ethnic identity, socio-
economic class status, and so forth.  If Kant can pull this off, it will take him
further in the direction of equality of rights than any previous philosopher
considered here.  In order to establish a concept of right that is independent of
empirical needs, desires, and interests, Kant argues for a single fundamental
principle of all duty, which he calls the “categorical imperative,” because it tells
us what, as persons, we ought to do, unconditionally.  It is a test we can use to
help us rationally to distinguish between right and wrong; and he offers three
different formulations of it which he considers three different ways of saying the
same thing:  (a) the first is a formula of universalizability, that we should try to
do only what we could reasonably will should become a universal law; (b) the
second is a formula of respect for all persons, that we should try always to act in
such a way as to respect all persons, ourselves and all others, as intrinsically
valuable “ends in themselves” and never treat any persons merely as
instrumental means to other ends; and (c) the third is a “principle of
autonomy,” that we, as morally autonomous rational agents, should try to act in
such a way that we could be reasonably legislating for a (hypothetical) moral
republic of all persons.  For the dignity of all persons, rendering them
intrinsically valuable and worthy of respect, is a function of their capacity for
moral autonomy.  In his Metaphysics of Morals, Kant develops his ethical
system, beyond this foundation, into a doctrine of right and a doctrine of virtue. 
The former comprises strict duties of justice, while the latter comprises broader
duties of merit.  Obviously, it is the former category, duties we owe all other
persons, regardless of circumstances and consequences, that concerns us here,
justice being a matter of strict right rather than one of meritorious virtue.  At the
very end of his Metaphysics of Morals, Kant briefly discusses “divine justice,”
whereby God legitimately punishes people for violating their duties (Ethical, pp.
2-3, 30-44, 36, 48, 158-161).

In his Metaphysical Elements of Justice, which constitutes the first part of

his Metaphysics of Morals, Kant develops his theory of justice.  (His concept
of Rechtslehre—literally, “doctrine of right”—has also been translated as
“doctrine of justice” and “doctrine of law.”)  For Kant, justice is inextricably
bound up with obligations with which we can rightly be required to comply. To
say that we have duties of justice to other persons is to indicate that they have
rights, against us, that we should perform those duties—so that duties of justice
and rights are correlative.  Three conditions must be met in order that the
concept of justice should apply:  (a) we must be dealing with external
interpersonal behaviors; (b) it must relate to willed action and not merely to
wishes, desires, and needs; and (c) the consequences intended are not morally
relevant.  A person is not committing an injustice by considering stealing
another’s property or in wanting to do so, but only by voluntarily taking action
to appropriate it without permission; and the act is not justified no matter what
good consequences may be intended.  According to Kant, there is only one
innate human right possessed by all persons; that is the right freely to do what
one wills, so long as that is “compatible with the freedom of everyone else in
accordance with a universal law.”  Thus one person’s right freely to act cannot
extend to infringing on the freedom of others or the violation of their rights.  
This leads to Kant’s ultimate universal principle of justice, which is itself a
categorical imperative:  “Every action is just [right] that in itself or in its maxim
is such that the freedom of the will of each can coexist together with the freedom
of everyone in accordance with a universal law.”  Although the use of coercive
force against other persons involves an attempt to restrict their freedom, this is
not necessarily unjust, if it is used to counteract their unjust abuse of freedom—
for example, in self-defense or punishment or even war.  Kant approvingly
invokes three ancient rules of justice:  (1) we should be honest in our dealings
with others; (2) we should avoid being unjust towards others even if that
requires our trying to avoid them altogether; and (3) if we cannot avoid
associating with others, we should at least try to respect their rights (Justice, pp.
29, 38, 30-31, 37; see also Lectures, pp. 211-212).

Kant distinguishes between natural or private justice, on the one hand, and civil
or public justice, on the other.  He has an intricate theory of property rights,
which we can only touch upon here.  We can claim, in the name of justice, to
have rights to (a) physical property, such as your car, (b) the performance of a
particular deed by another person, such as the auto shop keeping its agreement
to try to fix your car, and (c) certain characteristics of interpersonal
relationships with those under our authority, such as obedient children and
respectful servants.  Someone who steals your car or the auto mechanic who has
agreed to fix it and then fails to try to do so is doing you an injustice.  Children,
as developing but dependent persons, have a right to support and care from
their parents; but, in turn, they owe their parents obedience while under their
authority.  Children are not the property of their parents and must never be
treated like things or objects; and, when they have become independent of their
parents, they owe them nothing more than gratitude.  Similarly, a master must
respect a servant as a person.  The servant may be under contract to serve the
master, but that contract cannot be permanent or legitimately involve the giving
up of the servant’s personhood (in other words, one cannot justifiably enter into
slavery).  While the master has authority over the servant, that must never be
viewed as ownership or involve abuse.  This all concerns private or natural
justice, having to do with the securing of property rights.  Next let us next
consider how Kant applies his theory of justice to the problem of crime and
punishment, in the area of public or civil justice, involving protective,
commutative, and distributive justice, the requirements of which can be
legitimately enforced by civil society.  When a person commits a crime, that
involves misusing freedom to infringe the freedom of others or to violate their
rights.  Thus the criminal forfeits the right to freedom and can become a
legitimate prisoner of the state.  Kant considers the rule that criminals should be
punished for their crimes to be “a categorical imperative,” a matter of just
“retribution” not to be denied or even mitigated for utilitarian reasons.  This
extends to the ultimate punishment, the death penalty:  justice requires that
murderers, the most heinous criminals, should suffer capital punishment, as no
lesser penalty would be just.  A third application to consider here is that of war. 
This is in the international part of public justice that Kant calls “the Law of
Nations.”  He adopts a non-empirical version of the social contract theory,
interpreting it not as a historical fact mysteriously generating obligations but
rather as a hypothetical idea of what free and equal moral agents could
reasonably agree to in the way of rules of justice.  Unlike Hobbes, he does not
see this as a basis for all moral duty.  It does account for the obligation we have
to the state and other citizens.  But states have duties to other states, so that
there is an international law of nations.  Even though different states, in the
absence of international law, are in a natural condition of a state of war, as
Hobbes thought, he was wrong to think that, in that state, anything rightly goes
and that there is no justice.  War is bad, and we should try to minimize the need
for it, although Kant is not a pacifist and can justify it for purposes of self-
defense.  Kant proposes an international “league of nations” to help provide for
mutual “protection against external aggression” and, thus, to discourage it and
reduce the need to go to war.  Still, when war cannot be avoided, it should be
declared rather than launched by means of a sneak attack; secondly, there are
legitimate limits that prohibit, for example, trying to exterminate or subjugate
all members of the enemy society; third, when a war is over, the winning party
cannot destroy the civil freedom of the losing parties, as by enslaving them; and,
fourth, certain “rights of peace” must be assured and honored for all involved. 
Thus the ultimate goal of international relations and of the league of nations
should be the ideal of “perpetual peace” among different states that share our
planet (Justice, pp. 41, 43, 91-95, 113, 136-141, 146, 151-158; for more on Kant’s
version of the social contract theory, see Writings, pp. 73-85, and for more on
his views on war and “perpetual peace,” see Writings, pp. 93-130).  Thus we see
Kant applying his own theory of justice in three areas:  in the area of private law
having to do with the securing of property rights, in the area of public law
having to do with retributive punishment for crimes committed, and in the area
of international justice concerned with war and peace.

What shall we critically say about this theory?  First, it argues for a sense of
justice in terms of objective, non-arbitrary right—against, say, Hobbes and
Hume.  Second, this sense of justice is of a piece with Kant’s categorical
imperative, in that the rules of justice (e.g., regarding property rights,
punishment, and war) are universalizable, designed to respect persons as
intrinsically valuable, and conforming to the principle of autonomy.  Third, if
Hume is correct in suggesting that we can never logically infer what ought to be
from what actually is, then Kant’s is the only theory we have considered thus far
that can pass the test.  To focus the issue, ask the question, why should we be
just?  For Plato, this is the way to achieve the fulfillment of a well-ordered soul. 
For Aristotle, the achievement and exercising of moral virtue is a necessary
condition of human flourishing.  For Augustine and Aquinas, God’s eternal law
requires that we, as God’s personal creatures, should be just, with our salvation
at stake.  For Hobbes, practicing justice is required by enlightened self-interest. 
For Hume, even though our being just may not benefit us directly all the time, it
is conducive to public utility or the good of the society of which we are
members.  But for each of these claims, we can ask, so what?  If any
combination of these claims were to turn out to be correct, we could still
legitimately ask why we should therefore be just.  Are we to assume that we
ought to do whatever it takes to achieve a well-ordered soul or to flourish or to
comply with God’s will or to serve our own self-interest or public utility?  Why? 
Consider Kant’s answer:  we should try to be just because it’s the right thing to
do and because it is our duty, as rational, moral agents, to try to do what is
right.  Kant’s analysis of justice works well; and, given that, his applications to
property rights, crime and punishment, and war and peace are also impressive. 
Yet his theory is commonly rejected as too idealistic to be realistically applicable
in the so-called “real world,” because it maintains that some things can be
absolutely unjust and are, thus, categorically impermissible, regardless of likely
consequences.  His theory as we have considered it here is a paradigmatic
example of the view of justice being advocated in this article, as essentially
requiring respect for persons as free, rational agents.  Yet Kant’s inflexibility in
other points of application, such as in his absolute prohibition against lying to a
would-be murderer in order to save innocent human life (Ethical, pp. 162-166),
his idea that women and servants are merely “passive citizens” unfit to vote, and
his categorical denial of any right to resistance or revolution against oppression
(Justice, pp. 120, 124-128), is problematic here, inviting an alternative such as is
represented by Mill’s utilitarianism.

b. Mill
Let us consider a bit of Karl Marx (and his collaborator Friedrich Engels) as a
quick transition between Kant and Mill.  Kant represents the very sort of
bourgeois conception of justice against which Marx and Engels protest in their
call, in The Communist Manifesto, for a socialistic revolution.  Marx explains
the ideal of socio-economic equality he advocates with the famous slogan that
all should be required to contribute to society to the extent of their abilities and
all should be allowed to receive from society in accordance with their needs. 
John Stuart Mill, a nineteenth-century English philosopher, was aware of the
call for a Communist revolution and advocated progressive liberal reform as an
alternative path to political evolution.  Whereas Kant was the first great
deontologist, Mill subscribed to the already established tradition of
utilitarianism.  Although earlier British thinkers (including Hobbes and Hume)
were proto-utilitarians, incorporating elements of the theory into their own
worldviews, the movement, as such, is usually thought to stem from the
publication of Jeremy Bentham’s Introduction to the Principles of Morals and
Legislation in 1789.  He there proposes the “principle of utility,” which he also
later calls the “greatest happiness” principle, as the desirable basis for
individual and collective decision-making:  “By the principle of utility is meant
that principle which approves or disapproves of every action whatsoever,
according to the tendency which it appears to have to augment or diminish the
happiness of the party whose interest is in question.”  That single sentence
establishes the ultimate criterion for utilitarian reasoning and the root of a great
movement.  A famous lawyer named John Austin, under whom Mill studied,
wrote a book of jurisprudence based on Bentham’s “principle of general utility.” 
Mill’s father, James Mill, was a friend and disciple of Bentham and educated his
only son also to be a utilitarian.  Near the end of his life, Mill observed that it
was the closest thing to a religion in which his father raised him.  And, if he was
not the founder of this secular religion, he clearly became its most effective
evangelist.  In Utilitarianism, his own great essay in ethical theory, Mill gives
his own statement of the principle of utility (again employing a curiously
religious word):  “The creed which accepts as the foundation of morals, Utility,
or the Greatest Happiness Principle, holds that actions are right in proportion
as they tend to promote happiness, wrong as they tend to produce the reverse of
happiness.”  He immediately proceeds to interpret human happiness and
unhappiness (as Bentham had done) in hedonistic terms of pleasure and pain
(Utilitarianism, pp. 33-34, 329, 257).  This presents the deceptive appearance of
a remarkably simple rubric for practical judgment:  if an action generates an
excess of pleasure over pain, that contributes to human happiness, which is our
greatest good, making the action right; on the other hand, if an action generates
an excess of pain over pleasure, that contributes to human unhappiness, which
is our greatest evil, making the action wrong.  But what is deceptive about this is
the notion that we can sufficiently anticipate future consequences to be able to
predict where our actions will lead us.  (Notice, also, that unlike Kantian
deontology, which makes what is right independent of good consequences,
utilitarianism makes the former a function of the latter.)
Mill acknowledges that concern about a possible conflict between utility and
justice has always been “one of the strongest obstacles” to the acceptance of
utilitarianism.  If permanently enslaving a minority could produce
overwhelming happiness for a majority (he was personally opposed to slavery as
an unconscionable violation of human liberty), then, given that utility is the
value that trumps all others, why shouldn’t the injustice of slavery be accepted
as a (regrettably) necessary means to a socially desirable end, the former,
however unfortunate, being thus justified?  Mill thinks that the key to solving
this alleged problem is that of conceptual analysis, that if we properly
understand what “utility” and “justice” are all about, we shall be able to see that
no genuine conflict between them is possible.  We have already discerned what
the former concept means and now need to elucidate the latter.  Mill lays out
five dimensions of justice as we use the term:  (1) respecting others’ “legal
rights” is considered just, while violating them is unjust; (2) respecting the
“moral right” someone has to something is just, while violating it is unjust; (3)
it is considered just to give a person what “he deserves” and unjust to deny it;
(4) it is thought unjust to “break faith” with another, while keeping faith with
others is just; and (5) in some circumstances, it is deemed unjust “to be partial”
in one’s judgments and just to be impartial.  People commonly associate all of
these with justice, and they do seem to represent legitimate aspects of the
virtue.  (Interestingly, Mill rejects the idea “of equality” as essential to our
understanding of justice, a stand which would be problematic for Marxists.)  As
he seeks his own common denominator for these various dimensions of justice,
he observes that justice always goes beyond generic right and wrong to involve
what “some individual person can claim from us as his moral right.”  This
entails the legitimate sense that anyone who has committed an injustice
deserves to be punished somehow (which connects with Kant).  Mill thinks all
this boils down to the idea that justice is a term “for certain moral requirements,
which, regarded collectively, stand higher in the scale of social utility,” being
more obligatory “than any others.”  But this means that justice, properly
understood, is a name for the most important of “social utilities” (ibid., pp. 296-
301, 305, 309, 320-321).  Therefore there purportedly cannot be any genuine
conflict between utility and justice.  If there ever were circumstances in which
slavery were truly useful to humanity, then presumably it would be just; the
reason it is (typically) unjust is that it violates utility.  The main goal here is to
reduce justice to social utility, in such a way as to rule out, by definition, any
ultimate conflict between the two.  Thus, the social role played by our sense of
justice is allegedly that it serves the common good.

Mill’s other great work is On Liberty, which provides us with a connecting link
between this utilitarian theory and applications of it to particular social issues. 
The problem Mill sets for himself here is where to draw a reasonable line
between areas in which society can rightly proscribe behavior and those in
which people should be allowed the freedom to do as they will.  When is it just
to interfere with a person’s acting on personal choice?  To solve this problem,
which is as relevant today as it was a century and a half ago, he proposes his
“one very simple principle” of liberty, which he states in two slightly different
ways:  (1) the “self-protection” version holds that people can only legitimately
interfere with the freedom of action of others to protect themselves from them;
(2) the “harm” version maintains that force can only be justifiably used against
other members of community to prevent their harming others.  It is not
acceptable to use power against others to stop them from hurting only
themselves.  Mill candidly admits that this principle is reasonably feasible only
with regard to mature, responsible members of civilized societies—not to
children or to the insane or even necessarily to primitive peoples who cannot
make informed judgments about their own true good.  He decisively renounces
any appeal to abstract rights as a basis for this principle, basing it simply on
“utility in the largest sense, grounded on the permanent interests of a man as a
progressive being.”  Notice that this presupposes that we can distinguish
between other-regarding behavior, which may be justifiably regulated, and
purely self-regarding behavior, which may not be.  If that turns out to be a false
distinction, then Mill’s theory may collapse.  At any rate, he articulates at least
three areas of social life in which people’s liberty should be “absolute and
unqualified”:  (a) that of freedom of thought and expression; (b) that of freedom
of personal lifestyle; and (c) the freedom to associate with others of one’s choice,
so long as it is for peaceful purposes.  He seems confident that utility will always
require that freedom be protected in these areas (ibid., pp. 135-138).  In other
words, on this liberal utilitarian view, it would always be unjust for an individual
or a social group, in a civilized society, deliberately to interfere with a
responsible, rational person’s actions in any combination of these areas.

Let us now see how Mill applies his utilitarian theory to three problems of
justice that are still timely today.  First of all, the issue of punishment is one he
considers in Utilitarianism, though his discussion is aimed at considering
alternative accounts rather than conclusively saying what he himself thinks (we
might also observe that, in this short passage, he attacks the social contract
theory as a useless fiction) (ibid., pp. 311-313).  As a utilitarian, he favors the
judicious use of punishment in order to deter criminal activity.  He believes in
the utility/justice of self-defense and sees the right to punish as anchored in
that.  In 1868, as an elected member of Parliament, he made a famous speech in
the House of Commons supporting capital punishment on utilitarian grounds. 
Although it is clear that he would like to be able to support a bill for its abolition,
the lawful order of society, a necessary condition of societal well-being, requires
this means of deterring the most heinous crimes, such as aggravated murder. 
He even thinks it a quicker, more humane punishment than incarcerating
someone behind bars for the rest of his life.  Mill does worry about the
possibility of executing an innocent person, but he thinks a carefully managed
legal system can render this danger “extremely rare” (“Punishment,” pp. 266-
272).  Thus his utilitarian theory provides him with a basis for supporting
capital punishment as morally justifiable.  A second famous application of his
utilitarian theory of justice Mill makes is to the issue of equal opportunity for
women.  In the very first paragraph of The Subjection of Women, Mill maintains
that “the principle which regulates the existing social relations between the two
sexes—the legal subordination of one sex to the other—is wrong in itself, and
now one of the chief hindrances to human improvement; and that it ought to be
replaced by a principle of perfect equality, admitting no power or privilege on
the one side, nor disability on the other.”  So he does not call for the preferential
treatment of “affirmative action” but only for equal opportunity.  Unlike
contemporary feminists, he does not appeal to women’s human rights as his
rationale, but only to the maximization of “human happiness” and the liberty
“that makes life valuable” (Subjection, pp. 1, 26, 101).  Here, again, we have an
issue of social justice to which his utilitarian theory is applied, generating liberal
conclusions.  Our third issue of application is that of international non-
intervention.  Mill’s general principle here is that using force against others
is prima facie unjust. Although defensive wars can be justifiable, aggressive
ones are not.  It can be justifiable to go to war without being attacked or directly
threatened with an attack, for example, to help civilize a barbarian society,
which, as such, allegedly has no rights.  It can be justifiable to save a subjected
population from the oppression of a despotic government (“Non-Intervention,”
pp. 376-383).  All of this is presumably a function of utilitarian welfare.  Once
more, a still timely moral issue has been addressed using the utilitarian theory
of justice.

These applications all plausibly utilize the values and reasoning of

utilitarianism, which, by its very nature, must be consequentialist.  From that
perspective, the deterrence approach to punishment, including capital
punishment, seems appropriate, as do Mill’s call for equal opportunity for
women and his measured position on international interventionism.  Surely, the
premium he places on human happiness is admirable, as is his universal
perspective, which views all humans as counting.  The problem is in his
assumptions that all values are relative to consequences, that human happiness
is the ultimate good, and that this reduces to the maximization of pleasure and
the minimization of pain.  The upshot of this position is that, in principle,
nothing can  be categorically forbidden, that, given sufficiently desirable ends,
any means necessary to achieve them can be justified.  If we really believe that
there can be no genuine conflict between justice and utility because the former
is merely the most important part of the latter, then the rules of justice are
reducible to calculations regarding what is generally conducive to the greatest
happiness for the greatest number of people—mere inductive generalizations
which must permit of exceptions; at least Mill’s ambiguity leaves him open to
this interpretation.  There would seem to be a tension in Mill’s thought:  on the
one hand, he wants to respect the liberty of all (civilized) responsible persons as
rational agents; but, on the other hand, his commitment to utilitarianism would
seem to subordinate that respect to the greatest good for the greatest number of
people, allowing for the possibility of sacrificing the interests of the few to those
of the many.

5. Contemporary Philosophers
From its founding, American political thought had an enduring focus on justice. 
The Preamble to the American Constitution says that one of its primary goals is
to “establish justice.”  Founding father James Madison, in 1788, wrote in The
Federalist Papers that justice should be the goal of all government and of all civil
society, that people are willing to risk even liberty in its pursuit.  American
schoolchildren are made to memorize and recite a Pledge of Allegiance that ends
with the words “with liberty and justice for all.”  So justice is an abiding
American ideal.  We shall now consider how one of America’s greatest
philosophers, John Rawls, addresses this ideal.  We should notice how he places
a greater emphasis on equality than do most of his European predecessors—
perhaps reflecting the conviction of the American Declaration of Independence
that “all men are created equal.”  (This greater emphasis may reflect the
influence of Marx, whom he occasionally mentions.)  After considering the
formidable contributions of Rawls to justice theory and some of its applications,
we shall conclude this survey with a brief treatment of several post-Rawlsian
alternatives.  A key focus that will distinguish this section from previous ones is
the effort to achieve a conception of justice that strikes a reasonable balance
between liberty and equality.

a. Rawls
Rawls burst into prominence in 1958 with the publication of his game-changing
paper, “Justice as Fairness.”  Though it was not his first important publication,
it revived the social contract theory that had been languishing in the wake of
Hume’s critique and its denigration by utilitarians and pragmatists, though it
was a Kantian version of it that Rawls advocated.  This led to a greatly developed
book version, A Theory of Justice, published in 1971, arguably the most
important book of American philosophy published in the second half of the last
century.  Rawls makes it clear that his theory, which he calls “justice as
fairness,” assumes a Kantian view of persons as “free and equal,” morally
autonomous, rational agents, who are not necessarily egoists.  He also makes it
clear early on that he means to present his theory as a preferable alternative to
that of utilitarians.  He asks us to imagine persons in a hypothetical “initial
situation” which he calls “the original position” (corresponding to the “state of
nature” or “natural condition” of Hobbes, but clearly not presented as any sort
of historical or pre-historical fact).  This is strikingly characterized by what
Rawls calls “the veil of ignorance,” a device designed to minimize the influence
of selfish bias in attempting to determine what would be just.  If you must
decide on what sort of society you could commit yourself to accepting as a
permanent member and were not allowed to factor in specific knowledge about
yourself—such as your gender, race, ethnic identity, level of intelligence,
physical strength, quickness and stamina, and so forth—then you would
presumably exercise the rational choice to make the society as fair for everyone
as possible, lest you find yourself at the bottom of that society for the rest of
your life.  In such a “purely hypothetical” situation, Rawls believes that we
would rationally adopt two basic principles of justice for our society:  “the first
requires equality in the assignment of basic rights and duties, while the second
holds that social and economic inequalities, for example inequalities of wealth
and authority, are just only if they result in compensating benefits for everyone,
and in particular for the least advantaged members of society.”  Here we see
Rawls conceiving of justice, the primary social virtue, as requiring equal basic
liberties for all citizens and a presumption of equality even regarding socio-
economic goods.  He emphasizes the point that these principles rule out as
unjust the utilitarian justification of disadvantages for some on account of
greater advantages for others, since that would be rationally unacceptable to one
operating under the veil of ignorance.  Like Kant, Rawls is opposed to the
teleological or consequentialist gambit of defining the right (including the just)
in terms of “maximizing the good”; he rather, like Kant, the deontologist, is
committed to a “priority of the right over the good.”  Justice is not reducible to
utility or pragmatic desirability.  We should notice that the first principle of
justice, which requires maximum equality of rights and duties for all members
of society, is prior in “serial or lexical order” to the second, which specifies how
socio-economic inequalities can be justified (Theory, pp. 12-26, 31, 42-43). 
Again, this is anti-utilitarian, in that no increase in socio-economic benefits for
anyone can ever justify anything less than maximum equality of rights and
duties for all.  Thus, for example, if enslaving a few members of society
generated vastly more benefits for the majority than liabilities for them, such a
bargain would be categorically ruled out as unjust.

Rawls proceeds to develop his articulation of these two principles of justice

more carefully.  He reformulates the first one in terms of maximum equal
liberty, writing that “each person is to have an equal right to the most extensive
basic liberty compatible with a similar liberty for others.”  The basic liberties
intended concern such civil rights as are protected in our Constitution—free
speech, freedom of assembly, freedom of conscience, the right to private
property, the rights to vote and hold public office, freedom from arbitrary arrest
and seizure, etc.  The lexical priority of this first principle requires that it be
categorical in that the only justification for limiting any basic liberties would be
to enhance other basic liberties; for example, it might be just to limit free access
of the press to a sensational legal proceeding in order to protect the right of the
accused to a fair trial.  Rawls restates his second principle to maintain that
“social and economic inequalities are to be arranged so that they are both (a)
reasonably expected to be to everyone’s advantage, and (b) attached to positions
and offices open to all.”  Thus socio-economic inequalities can be justified, but
only if both conditions are met.  The first condition (a) is “the difference
principle” and takes seriously the idea that every socio-economic difference
separating one member of society from others must be beneficial to all,
including the person ranked lowest.  The second condition is one of “fair
equality of opportunity,” in that socio-economic advantages must be connected
to positions to which all members of society could have access.  For example, the
office of the presidency has attached to it greater social prestige and income
than is available to most of us.  Is that just?  It can be, assuming that all of us, as
citizens, could achieve that office with its compensations and that even those of
us at or near the bottom of the socio-economic scale benefit from intelligent,
talented people accepting the awesome responsibilities of that office.  Just as the
first principle must be lexically prior to the second, Rawls also maintains that
“fair opportunity is prior to the difference principle.”  Thus, if we have to choose
between equal opportunity for all and socio-economically benefiting “the least
advantaged” members of society, the former has priority over the latter.  Most of
us today might be readily sympathetic to the first principle and the equal
opportunity condition, while finding the difference principle to be objectionably
egalitarian, to the point of threatening incentives to contribute more than is
required.  Rawls does consider a “mixed conception” of justice that most of us
would regard as more attractive “arising when the principle of average utility
constrained by a certain social minimum is substituted for the difference
principle, everything else remaining unchanged.”  But there would be a problem
of fairly agreeing on that acceptable social minimum, and it would change with
shifting contingent circumstances.  It is curious that his own theory of “justice
as fairness” gets attacked by socialists such as Nielsen (whom we shall consider)
for sacrificing equality for the sake of liberty and by libertarians such as Nozick
(whom we shall also consider) for giving up too much liberty for the sake of
equality.  Rawls briefly suggests that his theory of justice as fairness might be
applied to international relations, in general, and to just war theory, in
particular (ibid., pp. 60-65, 75, 83, 302-303, 316, 378).

Rawls applies his theory of justice to the domestic issue of civil disobedience. 
No society is perfectly just.  A generally or “nearly just society” can have unjust
laws, in which case its citizens may or may not have a duty to comply with them,
depending on how severely unjust they are.  If the severity of the injustice is not
great, then respect for democratic majority rule might morally dictate
compliance.  Otherwise, citizens can feel a moral obligation to engage in civil
disobedience, which Rawls defines as “a public, nonviolent, conscientious yet
political act contrary to law usually done with the aim of bringing about a
change in the law or policies of the government.”  Certain conditions must be
met in order that an act of civil disobedience be justified:  (1) it should normally
address violations of equal civil liberties (the first principle of justice) and/or of
“fair equality of opportunity” (the second part of the second principle), with
violations of the difference principle (the first part of the second principle) being
murkier and, thus, harder to justify; (2) the act of civil disobedience should
come only after appeals to the political majority have been reasonably tried and
failed; (3) it must seem likely to accomplish more good than harm for the social
order.  Yet, even if all three of these conditions seem to be met and the
disobedient action seems right, there remains the practical question of whether
it would be “wise or prudent,” under the circumstances, to engage in the act of
civil disobedience.  Ultimately, every individual must decide for himself or
herself whether such action is morally and prudentially justifiable or not as
reasonably and responsibly as possible.  The acts of civil disobedience of Martin
Luther King (to whom Rawls refers in a footnote) seem to have met all the
conditions, to have been done in the name of justice, and to have been morally
justified (ibid., pp. 350-357, 363-367, 372-376, 389-390, 364n).

Rawls’s second book was Political Liberalism.  Here he works out how a just
political conception might develop a workable “overlapping consensus” despite
the challenges to social union posed by a pluralism of “reasonable
comprehensive doctrines.”  This, of course, calls for some explanation.  A just
society must protect basic liberties equally for all of its members, including
freedom of thought and its necessary condition, freedom of expression.  But, in
a free society that protects these basic liberties, a pluralism of views and values
is likely to develop, such that people can seriously disagree about matters they
hold dear.  They will develop their own “comprehensive doctrines,” or systems
of beliefs that may govern all significant aspects of their lives.  These may be
religious (like Christianity) or philosophical (like Kantianism) or moral (like
utilitarian).  Yet a variety of potentially conflicting comprehensive doctrines
may be such that all are reasonable.  In such a case, social unity requires respect
for and tolerance of other sets of beliefs.  It would be unjust deliberately to
suppress reasonable comprehensive doctrines merely because they are different
from our own.  The problem of political liberalism nowadays is how we can
establish “a stable and just society whose free and equal citizens are deeply
divided by conflicting and even incommensurable religious, philosophical, and
moral doctrines.”  What is needed is a shared “political conception of justice”
that is neutral regarding competing comprehensive doctrines.  This could allow
for “an overlapping consensus of reasonable comprehensive doctrines,” such
that tolerance and mutual respect are operative even among those committed to
incompatible views and values, so long as they are reasonable (Liberalism, pp.
291-292, 340-342, 145, xviii, 13, 152n., 59-60, 133, 154-155, 144, 134).  Thus, for
example, a Christian Kantian and an atheistic utilitarian, while sincerely
disagreeing on many ethical principles, philosophical ideas, and religious
beliefs, can unite in mutually accepting, for instance, the American Constitution
as properly binding on all of us equally.  This agreement will enable them
mutually to participate in social cooperation, the terms of which are fair and
reciprocal and which can contribute to the reasonable good of the entire society.

Near the end of his life, Rawls published The Law of Peoples, in which he tried
to apply his theory of justice to international relations.  Given that not all
societies act justly and that societies have a right to defend themselves against
aggressive violent force, there can be a right to go to war (jus ad bellum).  Yet
even then, not all is fair in war, and rules of just warfare (jus in bello) should be
observed:  (1) the goal must be a “just and lasting peace”; (2) it must be waged in
defense of freedom and security from aggression; (3) reasonable attempts must
be made not to attack innocent non-combatants; (4) the human rights of
enemies (for example, against being tortured) must be respected; (5) attempts
should be made to establish peaceful relations; and (6) practical tactics must
always remain within the parameters of moral principles.  After hostilities have
ceased, just conquerors must treat their conquered former enemies with respect
—not, for example, enslaving them or denying them civil liberties.  Rawls adds a
very controversial “supreme emergency exemption” in relation to the third rule
—when a relatively just society’s very survival is in desperate peril, its attacking
enemy civilian populations, as by bombing cities, can be justifiable.  More
generally, Rawls applies his theory of justice to international relations,
generating eight rules regarding how the people of other societies must be
treated.  While we do not have time to explore them all here, the last one is
sufficiently provocative to be worth our considering:  “Peoples have a duty to
assist other peoples living under unfavorable conditions that prevent their
having a just or decent political and social regime.”  This, of course, goes beyond
not exploiting, cheating, manipulating, deceiving, and interfering with others to
a positive duty of trying to help them, at the cost of time, money, and other
resources.  Justice demands that we try to assist what Rawls calls “burdened
societies,” so that doing so is not morally supererogatory.  What is most
interesting here is what Rawls refuses to say.  While different peoples,
internationally speaking, might be imagined in an original position under the
veil of ignorance, and Rawls would favor encouraging equal liberties and
opportunities for all, he refuses to apply the difference principle globally in such
a way as to indicate that justice requires a massive redistribution of wealth from
richer to poorer societies (Peoples, pp. 94-96, 98-99, 37, 106, 114-117).

From a critical perspective, Rawls’s theory of civil disobedience is excellent, as

are his theory of political liberalism and his version of the just war theory,
except for that “supreme emergency exemption,” which uncharacteristically
tries to make right a function of teleological good.  His views on international
aid seem so well worked out that, ironically, they call into question part of his
general theory of justice itself.  It does not seem plausible that the difference
principle should apply intrasocietally but not internationally.  The problem may
be with the difference principle itself.  It is not at all clear that rational agents in
a hypothetical original position would adopt such an egalitarian principle.  The
veil of ignorance leading to this controversial principle can itself be questioned
as artificial and unrealistic; one might object that, far from being
methodologically neutral, it sets up a bias (towards, for example, being risk-
aversive) that renders Rawls’s own favored principles of justice almost a
foregone conclusion.  Indeed, the “mixed conception” that Rawls himself
considers and rejects seems more plausible and more universally applicable—
keeping the first principle and the second part of the second but replacing the
difference principle with one of average utility, constrained by some social
minimum, adjustable with changing circumstances.  Thus we could
satisfactorily specify the requirements of an essentially Kantian conception of
justice, as requiring respect for the dignity of all persons as free and equal,
rational moral agents.  While less egalitarian than what Rawls offers, it might
prove an attractive alternative.  To what extent should liberty be constrained by
equality in a just society?  This is a central issue that divides him from many
post-Rawlsians, to a few of whom we now briefly turn.

b. Post-Rawls
Rawls’s monumental work on justice theory revitalized political philosophy in
the United States and other English-speaking countries.  In this final
subsection, we shall briefly survey some of the most important recent attempts
to provide preferable alternatives to Rawls’s conception of justice.  They will
represent six different approaches.  We shall consider, in succession, (1) the
libertarian approach of Robert Nozick, (2) the socialistic one of Kai Nielsen, (3)
the communitarian one of Michael Sandel, (4) the globalist one of Thomas
Pogge, (5) the feminist one of Martha Nussbaum, and (6) the rights-based one
of Michael Boylan.  As this is merely a quick survey, we shall not delve much
into the details of their theories (limiting ourselves to a single work by each) or
explore their applications or do much in the way of a critique of them.  But the
point will be to get a sense of several recent approaches to developing views of
justice in the wake of Rawls.

(1)    Nozick

Nozick (a departmental colleague of Rawls at Harvard) was one of the first and
remains one of the most famous critics of Rawls’s liberal theory of justice.  Both
are fundamentally committed to individual liberty.  But as a libertarian, Nozick
is opposed to compromising individual liberty in order to promote socio-
economic equality and advocates a “minimal state” as the only sort that can be
socially just.  In Anarchy, State, and Utopia (1974), especially in its famous
chapter on “Distributive Justice,” while praising Rawls’s first book as the most
important “work in political and moral philosophy” since that of Mill, Nozick
argues for what he calls an “entitlement conception of justice” in terms of three
principles of just holdings.  First, anyone who justly acquires any holding is
rightly entitled to keep and use it.  Second, anyone who acquires any holding by
means of a just transfer of property is rightly entitled to keep and use it.  It is
only through some combination of these two approaches that anyone is rightly
entitled to any holding.  But some people acquire holdings unjustly—e.g., by
theft or fraud or force—so that there are illegitimate holdings.  So, third, justice
can require the rectification of unjust past acquisitions.  These three principles
of just holdings—“the principle of acquisition of holdings, the principle of
transfer of holdings, and the principle of rectification of the violations of the
first two principles”—constitute the core of Nozick’s libertarian entitlement
theory of justice.  People should be entitled to use their own property as they see
fit, so long as they are entitled to it.  On this view, any pattern of distribution,
such as Rawls’s difference principle, that would force people to give up any
holdings to which they are entitled in order to give it to someone else (i.e., a
redistribution of wealth) is unjust.  Thus, for Nozick, any state, such as ours or
one Rawls would favor, that is “more extensive” than a minimal state and
redistributes wealth by taxing those who are relatively well off to benefit the
disadvantaged necessarily “violates people’s rights” (State, pp. 149, 183, 230,
150-153, 230-231, 149).

(2)    Nielsen

Nielsen, as a socialist (against both Rawls and Nozick) considers equality to be a

more fundamental ideal than individual liberty; this is more in keeping with
Marxism than with the liberal/libertarian tradition that has largely stemmed
from Locke.  (Whereas capitalism supports the ownership and control of the
means of producing and distribution material goods by private capital or wealth,
socialism holds that they should be owned and controlled by society as a
whole.)  If Nozick accuses Rawls of going too far in requiring a redistribution of
wealth, Nielsen criticizes him for favoring individual liberty at the expense of
social equality.  In direct contrast to Rawls’s two liberal principles of justice, in
“Radical Egalitarian Justice:  Justice as Equality,” Nielsen proposes his own two
socialistic principles constituting the core of his “egalitarian conception of
justice.”  In his first principle, he calls for “equal basic liberties and
opportunities” (rather than for merely “equal basic liberties”), including the
opportunities “for meaningful work, for self-determination, and political
participation,” which he considers important to promote “equal moral
autonomy and equal self-respect.”  Also (unlike Rawls) he does not claim any
lexical priority for either principle over the other.  His sharper departure from
Rawls can be found in his second principle, which is to replace the difference
principle that allegedly justified socio-economic inequality.  After specifying a
few qualifications, it calls for “the income and wealth” of society “to be so
divided that each person will have a right to an equal share” and for the burdens
of society “also to be equally shared, subject, of course, to limitations by
differing abilities and differing situations.”  He argues that his own second
principle would better promote “equal self-respect and equal moral autonomy”
among the members of society.  Thus we might eliminate social stratification
and class exploitation, in accordance with the ideals of Marxist humanism
(“Equality,” pp. 209, 211-213, 222-225).

(3)    Sandel

Sandel, as a communitarian, argues (against Rawls and Nozick) that the well-
being of a community takes precedence over individual liberty and (against
Nielsen) over the socio-economic welfare of its members.  While acknowledging
that Rawls is not so “narrowly individualistic” as to rule out the value of building
social community, in Liberalism and the Limits of Justice, he maintains that the
individualism of persons in the original position is such that “a sense of
community” is not a basic “constituent of their identify as such,” so that
community is bound to remain secondary and derivative in the Rawlsian
theory.  To deny that community values help constitute one’s personal identity
is to render impossible any preexisting interpersonal good from which a sense of
right can be derived.  Thus, for Sandel, Rawls’s myopic theory of human nature
gives him no basis for any pre-political natural rights.  So his conception of
justice based on this impoverished view must fail to reflect “the shared self-
understandings” of who they are as members of community that must undergird
the basic structure of political society.  Through the interpersonal relationships
of community, we establish “more or less enduring attachments and
commitments” that help define who we are, as well as the values that will help
characterize our sense of justice as a common good that cannot be properly
understood by individuals detached from community.  Thus justice must
determine what is right as serving the goods we embrace in a social context—“as
members of this family or community or nation or people, as bearers of this
history, as sons and daughters of that revolution, as citizens of this republic”
rather than as abstract individuals (Limits, pp. 66, 60-65, 87, 150, 172-174, 179,
183, 179).

(4)    Pogge

Pogge develops a globalist interpretation of justice as fairness that, in a sense, is

more consistent than Rawls’s own.  More specifically, it not only accepts the
difference principle but wants to apply it on an international level as well as
nationally.  In “An Egalitarian Law of Peoples,” Pogge observes that Rawls
means his theory of justice to be relatively “egalitarian.”  And, as applied
intranationally, so it is.  But, as applied internationally, it is not.  As he says,
there is a disconnect “between Rawls’s conception of domestic and of global
justice.”  (We should note that, like Sandel’s critique, which we just considered,
Pogge’s is not a complete theory of justice, but more a modification of Rawls’s
own.)  While Rawls does believe that well-off societies have a duty to assist
burdened societies, he rejects the idea of a global application of his difference
principle.  What Pogge is proposing is a global egalitarian principle of
distributive justice.  He thinks that this will address socio-economic equalities
that are to the detriment of the world’s worst-off persons.  What he proposes is
“a global resources tax, or GRT.”  This means that, although each of the peoples
of our planet “owns and fully controls all resources within its national territory,”
it will be taxed on all of the resources it extracts.  If it uses those extracted
resources itself, it must pay the tax itself.  If it sells some to other societies,
presumably at least part of the tax burden will be borne by buyers in the form of
higher sales prices.  “The GRT is then a tax on consumption” of our planet’s
resources.  Corporations extracting resources (such as oil companies and coal
mining companies) would pay their taxes to their governments which, in turn,
would be responsible for transferring funds to disadvantaged societies to help
the global poor.  Such payments should be regarded as “a matter of entitlement
rather than charity,” an obligation of international justice.  If the governments
of the poorer states were honest, they could disburse the funds; if they were
corrupt, then transfers could go through United Nations agencies and/or
nongovernmental organizations.  At any rate, they should be channeled toward
societies in which they could improve the lot of the poor and disadvantaged.  (Of
course, less well-off societies would be free to refuse such funds, if they so
chose.)  But, one might wonder, would well-off societies only be motivated to
pay their fair share by benevolence, a sense of justice, and possible shame at
being exposed for not doing so?  No, there could be international sanctions: 
“Once the agency facilitating the flow of GRT payments reports that a country
has not met its obligations under the scheme, all other countries are required to
impose duties on imports from, and perhaps also similar levies on exports to,
this country to raise funds equivalent to its GRT obligations plus the cost of
these enforcement measures.”  Pogge believes that well-off societies should
recognize that his more egalitarian model of international relations is also more
just than Rawls’s law of peoples (“Egalitarian,” pp. 195-196, 210, 199-202, 205,
219, 224).

(5)    Nussbaum

Nussbaum, like Pogge (and unlike Nozick and Nielsen), does not so much reject
Rawls’s liberal conception of justice as extend its explicit application.  In Sex
and Social Justice, she argues for a feminist interpretation of justice, using what
she calls a “capabilities approach” that connects with “the tradition of Kantian
liberalism,” nowadays represented by Rawls, tapping into their “notions of
dignity and liberty,” as a foundation for discussing the demands of justice
regarding “women’s equality and women’s human rights.”  The feminism she
embraces has five key dimensions:  (1) an internationalism, such that it is not
limited to any one particular culture; (2) a humanism, such as affirms a basic
equal worth in all human beings and promotes justice for all; (3) a commitment
to liberalism as the perspective that best protects and promotes the “basic
human capacities for choice and reasoning” that render all humans as having an
equal worth; (4) a sensitivity to the cultural shaping of our preferences and
desires; and (5) a concern for sympathetic understanding between the sexes. 
She expresses an appreciation for the primary goods at the core of Rawls’s
theory, while asserting that his analysis does not go far enough.  She offers her
own list of ten “central human functional capabilities” that must be respected by
a just society:  (1) life of a normal, natural duration; (2) bodily health and
integrity, including adequate nourishment and shelter; (3) bodily integrity
regarding, for example, freedom of movement and security against assault; (4)
freedom to exercise one’s senses, imagination, and thought as one pleases,
which includes freedom of expression; (5) freedom to form emotional
attachments to persons and things, which includes freedom of association; (6)
the development and exercise of practical reason, the capacity to form one’s own
conception of the good and to try to plan one’s own life, which includes the
protection of freedom of conscience; (7) freedom of affiliation on equal terms
with others, which involves provisions of nondiscrimination; (8) concern for
and possible relationships with animals, plants, and the world of nature; (9) the
freedom to play, to seek amusement, and to enjoy recreational activities; and
(10) some control over one’s own political environment, including the right to
vote, and one’s material environment, including the rights to seek meaningful
work and to hold property.  All of these capabilities are essential to our
functioning as flourishing human beings and should be assured for all citizens of
a just society.  But, historically, women have been and still are short-changed
with respect to them and should be guaranteed their protection in the name of
justice (Sex, pp. 24, 6-14, 34, 40-42).

(6)    Boylan

Boylan has recently presented “a ‘rights-based’ deontological approach based

upon the necessary conditions for human action.”  In A Just Society, he
observes that human goods are more or less deeply “embedded” as conditions of
human action, leading to a hierarchy that can be set forth.  There are two levels
of basic goods.  The most deeply embedded of these, such as food, clothing,
shelter, protection from physical harm, are absolutely necessary for any
meaningful human action.  The second level of basic goods comprises (less)
deeply embedded ones, such as basic knowledge and skills such as are imparted
by education, social structures that allow us to trust one another, basic
assurance that we will not be exploited, and the protection of basic human
rights.  Next, there are three levels of secondary goods.  The most embedded of
these are life enhancing, if not necessary for any meaningful action, such as
respect, equal opportunity, and the capacity to form and follow one’s own plan
of life and to participate actively and equally in community, characterized by
shared values.  A second level of secondary goods comprises those that are
useful for human action, such as having and being able to use property, being
able to benefit from one’s own labor, and being able to pursue goods typically
owned by most of one’s fellow citizens.  The third level of secondary goods
comprises those that are least embedded as conditions of meaningful action but
still desirable as luxuries, such as being able to seek pleasant objectives that
most of one’s fellow citizens cannot expect to achieve and being able to compete
for somewhat more than others in one’s society.  The more deeply embedded
goods are as conditions of meaningful human action, the more right to them
people have.  Boylan follows Kant and Rawls in holding an ultimate moral
imperative is that individual human agents and their rights must be respected. 
This is a matter of justice, distributive justice involving a fair distribution of
social goods and services and retributive justice involving proper ways for
society to treat those who violate the rules.  A just society has a duty to provide
basic goods equally to all of its members, if it can do so.  But things get more
complicated with regards to secondary goods.  A just society will try to provide
the first level of secondary goods, those that are life enhancing, equally to all its
members.  Yet this becomes more problematic with the second and third levels
of secondary goods—those that are useful and luxurious—as the conditions for
meaningful human action have already been satisfied by more deeply embedded
ones.  The need that people have to derive rewards for their work commensurate
with their achievement would seem to militate against any guarantee of equal
shares in these, even if society could provide them, although comparable
achievement should be comparably rewarded.  Finally, in the area of retributive
justice, we may briefly consider three scenarios.  First, when one person takes a
tangible good from another person, justice requires that the perpetrator return
to the victim some tangible good(s) of comparable worth, plus compensation
proportionate to the harm done the victim by the loss.  Second, when one
person takes an intangible good from another person, justice requires that the
 perpetrator give the victim some tangible good as adequate compensation for
the pain and suffering caused by the loss.  And, third, when one person injures
another person through the deprivation of a valued good that negatively affects
society, society can justly incarcerate the perpetrator for a period of time
proportionate to the loss (Society, pp. x, 53-54, 56-58, 131, 138, 143-144, 164-
167, 174-175, 181, 183).

In conclusion, we might observe that, in this rights-based alternative, as in the

previous five (the libertarian, the socialistic, the communitarian, the globalist,
and the feminist) we have considered, there is an attempt to interpret justice as
requiring respect for the dignity of all persons as free and equal, rational moral
agents.  This historical survey has tracked the progressive development of this
Kantian idea as becoming increasingly prominent in Western theories of justice.

6. References and Further Readings

a. Primary Sources
 Thomas Aquinas, On Law, Morality, and Politics, ed. William P. Baumgarth and Richard J. Regan,
S.J. (called “Law”).  Indianapolis:  Hackett, 1988.
 Thomas Aquinas, Summa Theologica, trans. Fathers of the English Dominican Province, Vol. One
(called “Summa”).  New York:  Benziger Brothers, 1947.
 Aristotle, Nicomachean Ethics, trans. Terence Irwin, Second Edition (called “Nicomachean”). 
Indianapolis:  Hackett, 1999.
 Aristotle, On Rhetoric, trans. George A. Kennedy (called “Rhetoric”).  New York:  Oxford
University Press, 1991.
 Aristotle, Politics, trans. C. D. C. Reeve (called “Politics”).  Indianapolis:  Hackett, 1998.
 Augustine, The City of God, trans. Henry Bettenson (called “City”).  London:  Penguin Books,
1984.
 Augustine, Of True Religion, trans. J. H. S. Burleigh (called “Religion”).  Chicago:  Henry
Regnery, 1959.
 Augustine, On Free Choice of the Will, trans. Thomas Williams (called “Choice”).  Indianapolis: 
Hackett, 1993.
 Augustine, Political Writings, trans. and ed. Michael W. Tkacz and Douglas Kries (called
“Political”).  Indianapolis:  Hackett, 1994).
 Michael Boylan, A Just Society (called “Society”).  Lanham, MD:  Rowman & Littlefield, 2004.
 Thomas Hobbes, The Elements of Law, ed. J. C. A. Gaskin (called “Elements”).  Oxford:  Oxford
University Press, 1994.
 Thomas Hobbes, Leviathan, ed. Edwin Curley.  Indianapolis:  Hackett, 1994.
 Thomas Hobbes, Man and Citizen, ed. Bernard Gert (called “Citizen”).  Indianapolis:  Hackett,
1991.
 Thomas Hobbes, Writings on Common Law and Hereditary Right, ed. Alan Cromartie and Quentin
Skinner (called “Common”).  Oxford:  Oxford University Press, 2008.
 David Hume, An Enquiry concerning the Principles of Morals, ed. J. B. Schneewind (called
“Enquiry”).  Indianapolis:  Hackett, 1983.
 David Hume, Political Essays, ed. Knud Haakonssen (called “Essays”).  Cambridge:  Cambridge
University Press, 1994.
 David Hume, A Treatise of Human Nature, ed. David Fate Norton and Mary J. Norton (called
“Treatise”).  Oxford:  Oxford University Press, 2000.
 Immanuel Kant, Ethical Philosophy, trans. James W. Ellington, Second Edition (called “Ethical”). 
Indianapolis:  Hackett, 1994.
 Immanuel Kant, Lectures on Ethics, trans. Louis Infield (called “Lectures”).  New York:  Harper &
Row, 1963).
 Immanuel Kant, Metaphysical Elements of Justice, trans. John Ladd, Second Edition (called
“Justice”).  Indianapolis:  Hackett, 1999.
 Immanuel Kant, Political Writings, trans. H. B. Nisbet, ed. Hans Reiss, Second Edition (called
“Writings”).  Cambridge:  Cambridge University Press, 1991.
 John Locke, Second Treatise of Government, ed. C. B. Macpherson.  Indianapolis:  Hackett, 1980.
 Karl Marx, Selected Writings, ed. Lawrence H. Simon.  Indianapolis:  Hackett, 1994.
 John Stuart Mill, “A Few Words on Non-Intervention,” in Essays on Politics and Culture, ed.
Gertrude Himmelfarb (called “Non-Intervention”).  Garden City, NY:  Anchor Books, 1963.
 John Stuart Mill, “Capital Punishment,” in Public and Parliamentary Speeches, ed. John M.
Robson and Bruce L. Kinzer (called “Punishment”).  Toronto:  University of Toronto Press, 1988.
 John Stuart Mill, The Subjection of Women (called “Subjection”).  Mineola, NY:  Dover, 1997.
 John Stuart Mill, Utilitarianism and Other Writings, ed. Mary Warnock (called “Utilitarianism”). 
Cleveland:  World Publishing Company, 1962.
 This anthology also contains some Bentham and some Austin.
 Kai Nielsen, “Radical Egalitarian Justice:  Justice as Equality” (called “Equality”).  Social Theory
and Practice, Vol. 5, No. 2, 1979.
 Robert Nozick, Anarchy, State, and Utopia (called “State”).  New York:  Basic Books, 1974.
 Martha C. Nussbaum, Sex and Social Justice (called “Sex”).  New York:  Oxford University Press,
1999.
 Plato, Five Dialogues, trans. G. M. A. Grube (called “Dialogues”).  Indianapolis:  Hackett, 1981.
 Plato, Gorgias, trans. Donald J. Zeyl.  Indianapolis:  Hackett, 1987.
 Plato, The Laws, trans. Trevor J. Saunders (called “Laws”).  London:  Penguin Books, 1975.
 Plato, Republic, trans. G. M. A. Grube, revised by C. D. C. Reeve.  Indianapolis:  Hackett, 1992.
 Thomas W. Pogge, “An Egalitarian Law of Peoples” (called “Egalitarian”).  Philosophy and Public
Affairs, Vol. 23, No. 3, 1994.
 John Rawls, Collected Papers, ed. Samuel Freeman (called “Papers”).  Cambridge, MA:  Harvard
University Press, 1999.
 John Rawls, The Law of Peoples (called “Peoples”).  Cambridge, MA:  Harvard University Press,
1999.
 John Rawls, Political Liberalism (called “Liberalism”).  New York:  Columbia University Press,
1996.
 John Rawls, A Theory of Justice (called “Theory”).  Cambridge, MA:  Harvard University Press,
1971.
 Jean-Jacques Rousseau, On the Social Contract, trans. G. D. H. Cole.  Mineola, NY:  Dover, 2003.
 Michael J. Sandel, Liberalism and the Limits of Justice (called “Limits”).  New York:  Cambridge
University Press, 1982.
 Robin Waterfield, trans., The First Philosophers (called “First”).  New York:  Oxford University
Press, 2000.
b. Secondary Sources
 John Arthur and William H. Shaw, ed., Justice and Economic Distribution.  Englewood Cliffs, NJ: 
Prentice-Hall, 1978.
 This is a good collection of contemporary readings, especially one by Kai Nielsen.
 Jonathan Barnes, ed., The Cambridge Companion to Aristotle.  New York:  Cambridge University
Press, 1995.
 The articles on Aristotle’s “Ethics” and “Politics” are particularly relevant.
 Brian Barry, Justice and Impartiality.  New York:  Oxford University Press, 1995.
 This is a good study.
 Brian Barry, Theories of Justice.  Berkeley:  University of California Press, 1989.  This discussion
makes up in depth what it lacks in breadth.
 Hugo A. Bedau, ed., Justice and Equality.  Englewood Cliffs, NJ:  Prentice-Hall, 1971.
 This is an old but still valuable anthology.
 H. Gene Blocker and Elizabeth H. Smith, ed., John Rawls’ Theory of Social Justice.  Athens, OH: 
Ohio University Press, 1980.
 This is an early but still worthwhile collection of papers, with “Justice and
International Relations,” by Charles R. Beitz, being particularly provocative.
 Ronald Dworkin, Taking Rights Seriously.  Cambridge, MA:  Harvard University Press, 1977.
 See, especially, the chapter on “Justice and Rights,” which contains a critique of
Rawls’s theory.
 Joel Feinberg, Doing and Deserving.  Princeton, NJ:  Princeton University Press, 1970.
 The fourth chapter, on “Justice and Personal Desert,” is especially relevant.
 Samuel Freeman, ed., The Cambridge Companion to Rawls.  New York:  Cambridge University
Press, 2003.
 Like all the books in this series, this one offers a fine array of critical articles, with
the one by Martha C. Nussbaum being particularly noteworthy.
 John-Stewart Gordon, ed. Morality and Justice: Reading Boylan’s A Just Society.  Lanham, MD:
Lexington Books, 2009.
 14 essays by scholars from 8 countries.  There is a reply by Boylan.
 Richard Kraut, ed., Plato’s Republic:  Critical Essays.  Lanham, MD:  Rowman & Littlefield,
1997.
 See, in particular, the articles by John M. Cooper and Kraut himself.
 Rex Martin and David A. Reidy, ed., Rawls’s Law of Peoples.  Oxford:  Blackwell, 2006.
 In particular, see “Do Rawls’s Two Theories of Justice Fit Together,” by Thomas
Pogge.
 David Miller, Principles of Social Justice.  Cambridge, MA:  Harvard University Press, 1999.
 This is a good contemporary treatment.
 David Fate Norton, ed., The Cambridge Companion to Hume.  New York:  Cambridge University
Press, 1993.
 See, especially, “The Structure of Hume’s Political Theory,” by Knud Haakonssen.
 Thomas W. Pogge, Realizing Rawls.  Ithaca, NY:  Cornell University Press, 1989.
 This is a constructive critique of Rawls’s early work.
 Louis P. Pojman, Global Political Philosophy.  New York:  McGraw-Hill, 2003.
 The fifth chapter focuses on justice.
 Wayne P. Pomerleau, Twelve Great Philosophers.  New York:  Ardsley House, 1997.
 This contains discussions of Plato, Aristotle, Augustine, Aquinas, Hobbes, Hume,
Kant, Mill, and (a bit on) Rawls.
 Tom Regan and Donald VanDeVeer, ed., And Justice for All.  Totowa, NJ:  Rowman and
Littlefield, 1982).
 An interesting collection, with a particularly penetrating article by Kai Nielsen.
 Henry S. Richardson, “John Rawls (1921-2002),” in the Internet Encyclopedia of Philosophy.
 This is a very good overview article.
 Paul Ricoeur, The Just, trans. David Pellauer.  Chicago:  University of Chicago Press, 2000.
 This is interesting as a contemporary treatment from the continental tradition.
 Allen D. Rosen, Kant’s Theory of Justice.  Ithaca:  Cornell University Press, 1993.
 This is a valuable, in-depth analysis.
 Alan Ryan, ed., Justice.  Oxford:  Oxford University Press, 1993.
 This is a very good anthology of classical and contemporary readings.
 Michael J. Sandel, ed., Justice:  A Reader.  New York:  Oxford University Press, 2007.
 This is an interesting anthology of readings that includes Sandel’s own article on
“Political Liberalism.”
 Gerasimos Santas, Goodness and Justice.  Oxford:  Blackwell, 2001.
 This is an in-depth examination of Socratic, Platonic, and Aristotelian views.
 Amartya Sen, The Idea of Justice.  Cambridge, MA:  Harvard University Press, 2009.
 This is a wide-ranging recent study.
 John Skorupski, ed., The Cambridge Companion to Mill.  New York:  Cambridge University Press,
1998.
 See, especially, “Mill’s Utilitarianism,” by Wendy Donner.
 Robert C. Solomon and Mark C. Murphy, ed., What Is Justice?, Second Edition.  New York: 
Oxford University Press, 2000.
 This is a nice and well-organized collection of classical and contemporary texts.
 James P. Sterba, The Demands of Justice.  Notre Dame:  University of Notre Dame Press, 1980.
 This is a good monograph.
 James P. Sterba, ed., Justice:  Alternative Political Perspectives, Fourth Edition.  Belmont, CA: 
Wadsworth/Thomson, 2003.
 This is a well-organized collection that includes a classic feminist critique of
Rawls, taken from Justice, Gender and the Family, by Susan Okin.
 Gregory Vlastos, ed., Plato:  A Collection of Critical Essays, Vol. II.  Garden City, NY:  Anchor
Books, 1971.
 See, especially, “Justice and Happiness in the Republic,” by Vlastos himself.
 Michael Walzer, Just and Unjust Wars, Third Edition.  New York:  Basic Books, 2000.
 This is an in-depth contemporary exploration of the topic.
 Michael Walzer, Spheres of Justice.  New York:  Basic Books, 1983.
 This is a comprehensive study.
 Eric Thomas Weber, Rawls, Dewey and Constructivism:  On the Epistemology of Justice. 
London:  Continuum, 2010.
 This is a good recent comparative analysis.
 Jonathan Westphal, ed., Justice.  Indianapolis:  Hackett, 1996.
 This is one of the best anthologies of classic texts on this subject.

Author Information
Wayne P. Pomerleau
Email: Pomerleau@calvin.gonzaga.edu
Gonzaga University
U. S. A.