Whose justice is it anyway?

The concept of justice is generally perceived as a monolith, absolute distinction between right and wrong. However, we have all, at one point or another, witnessed a situation in which different individuals have conflicting ideas about what is right and what is wrong. These conflicting ideas often grow into violent physical conflicts, generally accompanied by intense emotions. Each side in the conflict sees the other side as immoral or even evil. This is, if not tragic, then at least unfortunate. These conflicts are most often a consequence of the fact that different individuals and groups of people implicitly adhere to different theories of justice. The trouble is that most of us are not even aware of the theory of justice that underlies our ethical convictions. The purpose of this post is to describe, as clearly as possible, the five most common implicit theories of justice used by different individuals and groups of people in today's societies. My aim is to make us more aware of our own and others' beliefs about right and wrong.

Classical Liberalism
Classical liberalism rests on the concepts of self-ownership, homesteading, and non-aggression. According to this theory, each person has the right to be the master of his or her own body. This right stems from the belief that each person has free will. The next step in the logic of the classical-liberal theory of justice is mixing one’s labour with nature—homesteading. One acquires legitimate ownership over the products of his or her own labour when these products are created by using resources that were not previously owned by anyone. In other words, natural resources belong to the one who finds them first. In cases when a resource is already owned by someone, another person can legitimately acquire this resource only through a voluntary exchange. The key feature of voluntary exchanges is that the exchanges are performed in the absence of physical aggression or threat of physical aggression. Actions that represent physical invasion of other people's property are,  according to the classical liberal theory of justice, unjust and thus should be stopped.

Utilitarianism rests on the concept of social welfare. Increasing total social welfare is the ultimate normative goal governing human action under this theory of justice. An action that increases social welfare is labeled as socially desirable. In this context, the use of state force to implement a policy designed to increase social welfare is considered justified. What is right is determined through a cost-benefit analysis. Many economists implicitly or explicitly subscribe to utilitarianism.

Utilitarians often invoke the bundle of sticks metaphor. Rights are like sticks in a bundle. Each person has a bundle of rights. According to utilitarians, some sticks can and should be transferred from one person to another if this transfer increases total social welfare. The use of force in implementing this transfer is justified under utilitarianism. This means that rights are transitory. The right to perform an action can be taken away from one person and given to another. Rights are thus in personam (in person). They are defined for each individual differently depending on the effect of these rights on total social welfare.

Pragmatism is based on the idea that conflicts within society should be resolved on a case by case basis. According to pragmatists, every conflict is different, and thus applying universal normative principles to all cases may not necessarily be the best way of reducing social conflict. However, by aiming to reduce social conflict, pragmatists develop a universal normative principle nonetheless. For pragmatists, reducing social conflicts is the ultimate normative principle that should be used to judge human action. If choosing between two actions, the action that leads to fewer social conflicts is considered to be justified.  

Like utilitarianism, pragmatism invokes the bundle of sticks metaphor and the concept of transitory, in personam rights. In this case, individual rights can be transferred from one person to another if this transfer can reduce social conflict. Thus, under pragmatism, individual rights depend on the effect of those rights on social conflicts.

Legal Positivism
Legal positivism is based on the idea that law should be studied as a positive rather than a normative discipline. Legal positivists look at the current laws of the land to determine whether or not an action is punishable under those laws. Thus, for legal positivists, current laws of the land are the ultimate normative principle. The limits of this normative principle are defined by whatever the current legislature is prepared to enforce. If an action is punishable under the current laws, then the person that performed the action did not have the right to perform it.

Like pragmatists and utilitarians, legal positivists use the bundle of sticks of metaphor and the in personam concept of rights. However, in this case, the content of the bundle of rights ascribed to each individual is determined by the current legislature. One’s rights are whatever the legislature says they are, and these rights can be taken away and given to someone else by this legislature.

Modern Libertarianism

Modern libertarianism has much in common with classical liberalism. Like classical liberalism, modern libertarianism is based on the concept of self-ownership, homesteading, and non-aggression. Unlike classical liberals, libertarians generally do not seek religious justifications for the origin of rights. The existence of free will is understood as an axiom--a self-evident truth that cannot be proven or disproven. Aside from the potential disagreement on the origin of free will and self-ownership, classical liberals and libertarians derive similar conclusions when it comes to the legitimate ownership of resources.

A Practice Example

A new factory opens in your neighbourhood. The factory specializes in spray painting of plastic car bumpers. Soon after the factory opened, the residents of your area notice a persistent smell of chemicals in their yards and homes. Some experience mild headaches while others strongly dislike inhaling the paint odour. A cost-benefit study with a 50-year time horizon has been conducted by a Harvard economist, who estimated a loss in utility to the neighbouring community caused by the paint odour to be, at most, $5,000,000. Also, a study by another Harvard economist indicated that it would cost, at least, $6,000,000 to change the factory production practices in a way that would eliminate the unwanted smell in the neighbouring community. The factory owner indicated that he/she will oppose any attempt to impose restrictions on the factory production practices because they satisfy the provincial and national standards prescribed by the Ministry of Industry. The community members are quite displeased with the situation, but are unsure of the likelihood of winning any potential legal battles. Use what you have learned about the five theories of property rights to determine whether the factory owner has the right to continue with the current production practices.

According to the classical liberal theory of justice, the factory owner _______________ the right to continue with the current practices because_________________________________________________________________________________________________________________________________.

According to the legal positivist theory of justice, the factory owner _______________ the right to continue with the current practices because ________________________________________________________________________________________________________________________________________.

According to the utilitarian theory of justice, the factory owner _______________ the right to continue with the current practices because ________________________________________________________________________________________________________________________________________.

According to the pragmatist theory of justice, the factory owner _______________ the right to continue with the current practices because ________________________________________________________________________________________________________________________________________.

According to the modern libertarian theory of justice, the factory owner _______________ the right to continue with the current practices because ________________________________________________________________________________________________________________________________________.

This exercise by no means implies that all theories of justice are equally coherent or valid. Its main purpose was to help us appreciate the underlying logic of our disagreements about right and wrong. There is more to be said on the strengths and weaknesses of different theories of justice, and this is something I intend to do in the future. Until then, let us focus on understanding the roots of our ethical disagreements.


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