Lawyers, judges, politicians, academics and philosophers often appeal to notions of ‘justice’ in public debate and civic discourse. But what justice means is often loosely understood or accepted uncritically.
Oxford defines justice as ‘just behaviour or treatment’ and ‘the quality of being fair and reasonable’. Cambridge defines justice as ‘the condition of being morally correct or fair’ while Collins defines it as ‘being reasonable, fair, or right’, and Merriam-Webster’s definition is ‘the quality of being just, impartial, or fair’.
The one thing all these dictionaries have in common, however, is that they define justice in relation to the administration of law or a system of laws. It’s clear that, however defined, justice is widely held to be an integral feature of a legal system proper. This is why we should strive better to understand what justice means and why it matters.
Justice is often defined as fairness. Putting aside the apparent circularity of this understanding of justice (fairness is often defined with reference to justice), it’s clear that this conception places particular emphasis on the notion of impartial and unbiased treatment. If this is so, the limitation of justice as fairness conceptions becomes apparent.
In particular, the fairness conception is apt to be understood as demanding equal treatment of all people – a gateway to a conception of justice as equality. But this is ripe to critique from many directions. First, the critique of equal treatment from an outcomes orientation (eg court fees being equal may lead justice to be disproportionately inaccessible for lower socio-economic groups). Second, the critique from a rights-based conception that equality of treatment necessarily involves limiting individual rights (eg restrictions on parties’ ability to bring and amend proceedings in the interests of fair treatment of other parties).
Perhaps most significantly, the criticism that these equality and fairness based conceptions merely shift arbitrariness, from the application of law to individual cases, to the process of defining and constructing rules of equal treatment (ie rules defining the characteristics – eg being charged with certain crimes – that will warrant differential treatment).
This critique reveals the way in which the fairness conception tends to misunderstand the non-arbitrariness component of justice and the end towards which it is aimed. That is, justice must be dispensed impartially and without favouritism in order to ensure that people are treated by the law they way they ought and deserve to be treated.
I would define justice very differently, not in terms of equal treatment but in terms of moral desert. We should favour this definition – justice as treating people as they deserve – because it provides a principled basis for differential treatment of people before the law (a logical necessity for an effective legal system) and for a strong link between law and morality.
What do I mean by treating people ‘as they deserve’. It might appear that desert is itself a loosely defined concept that merely shifts the problem. Oxford defines ‘to deserve’ as to ‘do something or have or show qualities worthy of (a reaction which rewards or punishes as appropriate)’.
The critical element of this definition, and the key to its utility in understanding justice and its import, is that a person does something that warrants a particular response. This is a definition that allows for a concept of justice that recognises human agency and allows human actors to choose to live as justice demands. It also allows the inherent dignity and worth of all people to be a starting point from which law stems.
This is significant for the reasons Blackstone in his Commentaries on the Laws of England, Benjamin Franklin in a 1785 letter to Benjamin Vaughn, and John Adams defending soldiers charged in relation to the Boston Massacre each recognised. If virtue is no shield from the application of law, good people will be given pause to lose faith in the administration of ‘justice’ and law. If good people have no reason to obey the law, law’s only recourse is compulsion. Such a system has surely failed.