Journal of Applied Philosophy, Vol. 2, No. 2, I985

The Concept, and Conceptions, of Justice

191

ANTONY FLEW

ABSTRACT Occasioned by but not pretending to constitute a critique of Julian Le Grand’s ‘Equity as an Economic Objective’, published in the first issue of the Journal of Applied Philosophy, this paper argues that the concept of justice must be distinguished from conceptions thereof. Once this is done it emerges that many of what are both offered and accepted as conceptions of justice really are not. B y proceeding next both to enquire what are the incentives to such misrepresentations and to reveal some of their unrecognized costs, this is shown to be by no means a merely trifling and purely verbal matter. In particular, by misrepresenting the imposition of their peculiar and characteristic ideal of equality of outcome as the enforcement of the mandate of justice, Procrusteans unwittingly imply that they are themselves involved in appallingly shabby and discreditable practices.

Julian Le Grand, in ‘Equity as an Economic Objective’ [ l ] , is concerned with “different conceptions of equity or justice” [ 2 ] . He goes on to remark that here, as with other objectives that guide policy-making, “It has proved extremely difficult to find definitions which were simultaneously sufficiently general to command a broad consensus and sufficiently specific so as to permit useful application” [ 3 ) . Unfortu- nately he makes no distinction: between, on the one hand, providing an explication of the concept of justice, or a definition of the word; and, on the other hand, developing a conception of what-substantively and particularly-justice actually requires. Yet it is entirely possible, and common, for people to disagree pretty profoundly in their conceptions of justice, or chastity, or whatever else, while nevertheless employing the same concept, and hence the same definition of the word. Indeed, unless they are in this most fundamental though tenuous form of agreement, their different conceptions cannot be different conceptions of justice, or of chastity, or of whatever else is supposed to be under discussion.

Hopes that Le Grand is going to take this point rise when he proceeds to distinguish his own approach “from that pioneered in Rawls’ great work (1971) and current in much of the political philosophy literature”. . . [4] . For Le Grand is clearly uneasy about the way in which “principles derived from certain hypothetical procedures (such as the social contract) ‘are said to be ‘just’, whether they concern equity, liberty or any other aim” [ 51 . Nevertheless he concludes: “Although I do not think that the interests of clarity have always been well served by this conflation of aims under the same umbrella, I shall not argue the point here” [ 51 . Le Grand thus follows Rawls, as well as so many of the other critics of Rawls, ignoring the warning issued by Plato’s Socrates in the final sentence of Book I of The Republic: “For if I do not know what justice is I am scarcely likely to find out whether it is an excellence and whether its possessor is happy or not happy”.

192 A. Flew

Towards a Definition of ‘Justice’

It is a remarkable fact, albeit a fact remarked remarkably rarely, that “Rawls’ great work (1971)” would appear to be the first substantial treatise purporting to deal with justice which can, nevertheless, find no room to quote any version of the traditional definition. Instead, towards the end of his enormous book, the author indicates that he was eager “to leave questions of meaning and definition aside and to get on with the task of developing a substantive theory of justice” 161.

This impatience with any preliminary, narrowly philosophical, Socratic questions exposes Rawls to the charge that-whatever its other merits or demerits-what he is offering is simply not a conception of justice at all [7 ] . At times he himself comes close to recognizing that this may indeed be so. For instance, he offers his “justice as fairness’’, as a rival: not, in particular, to a Utilitarian account of justice; but, generally, to classical Utilitarianism as a whole. He wants it, so to speak, to replace not just Chapter V of J. S. Mill’s Utilitarianism but the entire book. Yet certainly Rawls never sees all the implications of this misrepresentation, if such it be.

One version of the ancient definition tells us that to be just is Honeste vivere, neminen laedere, mum cuique tribuere [To live honourably, to harm no one, to yield to each their own]. In the Institutes of Justinian the mark of the just person is Constans et perpetua voluntasjus suum cuique tribuere [A constant and perpetual will to yield to each their own]. The last crucial phrase-suum cuique tribuere-can be traced back through the earlier Roman jurists till it is discovered in the definition wrongly rejected by Plato’s Socrates in The Republic. For there, after old Cephalus has been politely seen off, his son Polemarchus inherits the argument. Following the poet Simonides, and improving on his father, Polemarchus suggests that justice is “to render to each their due” [8 ] .

To become fully adequate such a definition would no doubt need both polishing and supplementation. But for present purposes it is sufficient to establish that the essential element is some variation on the theme of yielding, or allotting, or assigning, or resigning, to each their own. Were this conclusion being challenged directly, it would become necessary to deploy supporting argument. But, until and unless it is so challenged, that has to be superfluous.

Some Consequences of any such Definition

Once it is conceded that that constitutes the essential element, then it begins to be possible to draw some fairly substantial and sometimes rather disturbing conclu- sions. For some of what have been presented as conceptions of justice are now shown up as being not correctly so described. Nor is this, as is sometimes suggested, a matter merely verbal and trifling. Those who, on this account, have been misemploying the word ‘justice’ have not been simply careless, or indifferent as between one alternative and another. They employed, or misemployed, that delibe- rately chosen word because they wanted thereby to license the drawing of various practically important and strongly desired conclusions; albeit without, it seems, ever allowing themselves to notice that it must also, and by the same token, license the drawing of other equally important yet altogether unwelcome conclusionwonclu- sions often bound to be to the last degree embarrassing.

(i) What is justly due to people are their several, and presumably often very different and very unequal, deserts and entitlements. Those two key words are by no means synonymous: deserts are, necessarily, merited or deserved whereas entitle-

Conceptions of Justice 193

ments may not be; while it would be at least odd to speak of an entitlement to something disagreeable. There is, therefore, plenty of room for, and there in fact are, different and competing conceptions of justice4onceptions differing in their accounts, not only of what people do in truth deserve and to what they are in truth entitled, but also of what really are the proper grounds both of desert and of undeserved entitlement.

So it follows that a theory which finds room neither for deserts nor for undeserved entitlements, however powerful its other claims to our acceptance, cannot be admitted as a theory of justice. Therefore, too, for Nozick to try to distinguish his own account as ‘The Entitlement Theory’, and for hostile critics to want to condemn it as such, is as if someone were to labour to pick out one particular conception of chastity as being peculiarly concerned with sexual restraint, while opponents were proposing on the same count to dismiss it out of hand [9] .

(ii) A second consequence of the fact that the heart of the matter is given in the tag suum cuique tribuere is that the notion of justice is necessarily backward-looking. That is why, for instance, the Shane figures in good, old-original, American Westerns, or The FourJust Men of England‘s Edgar Wallace, cannot begin to do the justice “which a man has to do” without some preparatory research into the conduct and background of all the various persons concerned, and into their several and consequent deserts and entitlements.

The newer ideal of equality of outcome, equality of welfare, is by contrast essentially forward-looking. It commits its proponents to disregarding the past as irrelevant: their ideal future is to be very different and much more, if never perhaps perfectly, equal. That is why anyone attempting systematically to justify the currently common identification of the imposition of this Procrustean ideal with the enforcement of a kind of justice would be facing a formidable and perhaps impossible task. It would be so much easier, if only they could bring themselves to resign the enormous propaganda advantages of that identification, to present their own fresh and future-oriented ideal neither as, nor as a part of, but rather as a rival to justice-the pursuit of which they should therefore see and condemn as reaction- ary, backward-looking, irrelevant, unsociological, antique, and even gothic.

This is, after all, exactly how the most scientifically-minded and future-oriented reformers do present parallel proposals for replacing criminal justice by ortho- psychiatry. Karl Menninger, for instance, who was for years the recognised doyen of that discipline, had no backward-looking scruples, and no inhibitions against projecting what to dissident diehards will appear an unlovely image. Thus, in a book aggressively entitled The Crime of Punishment, he wrote: “The very word ‘justice’ irritates scientists. No surgeon expects to be asked whether an operation for cancer is just or not. No doctor will be reproached on the grounds that the dose of penicillin he has prescribed is less or more than justice would stipulate. Behavioural scientists regard it as equally absurd to invoke the question of justice. .. . This (to the scientist) is a matter of public safety and amicable coexistence, not justice” [ 101 .

What is in the present paper offered as the second consequence of a minimum definition of ‘justice’ Le Grand derives from a consideration of what he quotes Nozick as calling “end-result” principles of distribution: “what we need”, Le Grand argues, “are historical principles” [ 11 ] . This is, as far as it goes, all very well. But, through not attending at the beginning to the concept of justice, Le Grand fails to make room for undeserved entitlements.

Someone with less respect for popular intuitions might at this point make so rash

194 A. Flew

as to assert that there are none. To do this however, would be rash indeed. For all claims to universal human rights are and can only be grounded on what people are rather than on what they have done or not done. Also, the very possibility of desert seems to presuppose that of undeserved entitlement. Certainly it is awkward to speak of property rights where the putative owner cannot be substantially distin- guished from what is said to be owned. Nevertheless very few of us could bring ourselves to accept all the implications of denying to individuals some sort of (necessarily undeserved) rights or entitlement, not only to their several bodily parts, but also to those very various native talents and dispositions which are both inherent in and consequent upon their several and equally various physical constitutions.

The most explosive challenge to any such denial demands to know whether, in a world in which half the children were born with two eyes and half with none, and in which eye transplants were possible, the two-eyed would have no right to their second eyes, but should, as a matter of social justice, be forced to surrender these unequal and hence illicit holdings to the transplant surgeons. It ought, by the way, to be noticed that to speak of the distribution either of bodily parts or of the talents and dispositions native to the human individual is to lay yourself open to the objection previously urged against talk of property rights here. To whom were those various bodily parts, talents and dispositions-all of which, uninstructedly, I should have been inclined to describe as mine-originally allocated; or by whom were they originally inherited? And who were all the others among whom God or Nature might have made a different and fairer allocation of all such things [ 121 ?

(iii) The third practically important implication of this logical truth, that justice refers to deserts and entitlements, is that the claims of justice, unlike some other moral claims, may properly be enforced by the public power; though to say this is not, of course, to say that they always ought to be. This is a conclusion upon which there appears to be for once near universal agreement; although awareness of what it follows from is much less than unanimous. For instance, in his other masterpiece, the great Smith wrote: “Mere justice is, upon most occasions, but a negative virtue, and only hinders us from hurting our neighbour. The man who barely abstains from violating either the person, or the estate, or the reputation of his neighbours, has, surely, little positive merit. He fulfils, however, all the rules of what is peculiarly called justice, and does everything which his equals can with propriety force him to do, or which they can punish him for not doing” [ 131 . J. S. Mill concurs: “When we think a person is bound in justice to do a thing, it is an ordinary form of language to say that he ought to be compelled to do it” [ 141.

This is one of the implications which makes people value the word ‘justice’; and often they insist on applying it without sufficient attention to the upsetting question whether their applications are justified. Suppose, for instance, that Rawls was challenged to justify his famous manifesto proclaiming the absolute indefeasibility of the demands of justice. He could support it only, if perhaps still not sufficiently, by maintaining that these are claims of desert and right, trumping all claims of other and necessarily weaker kinds.

Again, suppose that our Procrusteans were both inclined and able to make good on the contention that justice demands (a no doubt always to some extent qualified) equality of outcome. Then they would have equipped themselves with a knock-down decisive response to the protest of anyone daring to ask “By what right are you proposing to impose your peculiar and personal idea of the Good Society upon those who do not share that ideal?”

Conceptions of Justice 195

For, on the present supposition, what they would be striving to impose is not merely a “peculiar and personal ideal of the Good Society”. On the contrary: they would now be fully entitled to the splendid Shane image. For they would all be proven and paradigmatic exemplars of justice, devoted to ensuring that everyone should have and should hold their several deserts and entitlements, their own, their due; no less and no more.

A Sting in the Tail

Those who, with unfriendly fairness, I characterise as Procrusteans are always and only people who strive to ensure that their sort of egalitarianism is achieved by social engineering exercises of state power. It would be quite unfair to attach that same studiously unflattering label to those very few who are dedicated to pursuing the same ultimate end by non-coercive persuasion, and sometimes sacrificial personal example. Those very few entirely escape: not only that unfriendly labelling-hard words break no bones; but also another challenge t o w n e which is far more discomfiting.

It emerges that there is a price to be paid for making out that it is justice which demands equality of outcome. For once we have taken even a brief look at the concept of justice, it becomes clear that this conception carries a truly devastating implication. Inescapably it implies that equal shares are: not just something which it would be nice for everyone to have, and which in some ideal and future world they perhaps would and will enjoy; but instead something to which they have now, and always have had, a presumptively indefeasible right. So what is the corollary implication for those who are at present enjoying what is, by these bleakly bureaucratic standards, too much?

Certainly all the Procrusteans of my own acquaintance are, they should say, rather conspicuously underdeprived. If they were prepared to put their doctrine forward only as a remote ideal, then we might perhaps find some reasons to allow that they can in the meantime, consistently and with clear consciences, continue to enjoy their privileged excesses. But if, as is in fact usually the case, they choose to identify Procrusteanism with (social) justice, if they therefore also both arrogate to them- selves a Shane image and denounce opponents as enemies of justice; then it becomes imperative to point out-and this is, remember, precisely and only on their own account of the matter-that everyone who is at this time holding anything above the ideally equal share is necessarily in possession of stolen property; and, most shameful of all, property stolen from others worse off than themselves [ 151 .

Once the presence of this sting in the tail is more widely appreciated, we may expect to hear much less about equality of outcome as the supposedly obvious and imperative mandate of (social) justice, as well as far fewer preposterous denuncia- tions of anti-Procrusteans as by their cloth committed enemies of (unqualified) justice.

Correspondence: Antony Flew, 26 Alexandra Road, Reading RG1 5PD, England.

NOTES

[ 11 LE GRAND, JULIAN (1984) Equity as an Economic Objective, Journal of Applied Philosophy, 1, pp.

[ 2 ] Ibid., p. 39. 39-5 1.

196 A. Flew

131 Ibid., p. 39. [4] Ibid., p. 40. [ 5 ) Ibid., p. 40: the hesitation quotes around the word ‘just’ are, surely, significant of Le Grand’s own

(61 RAWLS, JOHN (1971) A Theoy ofJustice, p. 579 (Cambridge, Mass., Harvard University Press). [7] See, for pressings of this charge, MATSON (1978) What Rawls calls justice, The Occasional Review

8 / 9 (San Diego, World Research) and FLEW, ANTONY (1981) The Politics of Procrustes Chapter 111 (London, Temple Smith).

[S] 331E. For support for the claim that this definition is wrongly rejected by Plato’s Socrates, and for a more comprehensive consideration of the relations and lack of relations between Rawls and Plato, as well as Rawls and Aristotle, see FLEW, ANTONY (1983) Justice: real or social?, Social Philosophy and Policy, 1, pp. 151-70.

[ ~ ~ N O Z I C K , ROBERT (1976) Anarchy, Stare and Utopia, p. 150 (Oxford, Blackwell) I borrow this comparison from MATSON (1978), above.

[ 101 MENNINGER, KARL (1968) The Crime of Punishment, p. 17 (New York, Viking), For much more of the similar compare FLEW, ANTONY (1973) Crime or Disease? (Basingstoke, Macmillan).

[ 111 Op. cit., p. 46. 1121 Compare, again, FLEW, ANTONY (1981), Chapter IV. [ I~JSMITH, ADAM (1759) The Theoy of Moral Sentiments, I1 (ii) 1. 1141 MILL, J.S. (1910) Utilitarianism, p. 44 (London, Dent). [ 151 For an abundance of examplss of such identifications, arrogations and denunciations, compare FLEW

reservations?

(1981) and (1983).