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POLITIC&THEOW

VOLUME T$7O

MARK BT,VIR EDITCRLlniaersity of Caffirnia, Berkeley

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Rol f A. JankeJirn Br: lce-ThompsonNlichelc ThompsonDiana E. Axelsen[-et ici :r CutierrezLaura NottonKatc SchroederColleen B. Brennirn, Aml Freit irg, Jacqtrel ine TaschC&M Digi ta ls (P) I - td.Kris Bergstad, Kevin Cilcason, Annie l-ubinskr'David I -u l jakGlenn VogelAmberl l 'n McKav

Justice, Theorics of 733

Deleuze outlines a concept of jurisprudence inresponse to his critique of human rights as abstractand ineffective. For Deleuze, jurisprudence desig-nates the conjunction of a legal concept (forexample, freedom of expression or privacy) lvith acase. Deleuze's claim is that the concept does notsimply cover and treat the case at hand; instead,the tr'vo undergo a mutual determination. Forexample, someone has a sealed drink bought forher that, it so happens, contains the decayedremains of a snail (Donoghue u. Steuenson 11932]).She sues and wins, but at the time, no law specifieda duty of care to parties r'vithout contract. Holvdoes that happen? For Deleuze, a ne'vv right wascreated when a concrete problem led the judge toextend a dr-rty of care wherever harm could be rea-sonably foreseen. Two consequences flow from hisconcept of jurisprudence. First, the case is seen asformative of law. Here, law develops from singu-larity to singularity, and cases are not mereinstances to be covered bi' a self-same rule. Second,creativit,v is vier'ved as an intrinsic power of judg-Irlent, not as an accident or act of will. Deleuze isnot recommending creativity on the part of judges;rather, he proposes a jurisprudence that sees cre-ativity as inherent to the operation of law.

Alexandre Lefebure

See also American Pragmatism; Bentham, Jeremy; Hart.H. I-. A.; ludicial Revierv, Rule of Law, SingLrlarity

Further Readings

Austin, J. (1998). The prouince of jurisprudencedetermined. Nerv York: Hackett.

Cardozcr, B. (1963). The nature of the judicial process.Neu'Haven, CT: Yale University Press.

Deleuze, G. (1990). Negotiations, 1972-1 990. I\ewYork: Colurnbia University Press.

Derrida, J. Q992). Force of lar,v. In Deconstruction andthe possibilitl, of justice. New York: Routledge.

Flart, H. L. A. (1997). The concept of lau (2nd ed.).Oxforcl, UK: Oxford Universit,v Press.

Holmes, O. W. (2007). The patli of lan'. ln Collectedlegal papers. Ner'v York: Dover.

I(elsen, H. (1967). I'ure theorl, of laa'. Berkele.v:University of California Press..(Original rvorkpubi ished 1934)

Llervellyn, K. (1950). The bramble bush: On our law andits study (2nd ed.). Nerv York: Oceana.

JusrrcE, THEoRTES oF

Justice, on the classical vierv, is a virtue; specifi-cally, it is a disposition to give each person his orher due. Naturally, there hzrs always been somedifference of opinion as to what, exactly, is dr"re tcrwhom under which conditions. The most influen-tial account has probably been thtrt offered byAristotle in his Nicozz achean Ethics. Distinguishir-rgjustice in distribr"rtion from lustice in r:ectification,he argues that in the former case, goods are justlydistributed according to the proportionate meritof the recipients, and that in the latter case, justpunishments and compensations are proportion-ate to injuries caused. The virtue of justice canthus be understood as a state of character thatdisposes people to act justl,v and rvish for rvhat isjLrst, so defined.

It is important to observe that this duty of jus-tice (as it is norv often called) does not cover thewhole range of our practical obligations. It doesnot, for example, include any obligations rve mighthave to ourselves (prr-rdential obligations) or to thenatural rvorld. Arguabiv, it does not even inclucleall of what we owe to other humirn beings. Theformer is obvious, as can be seen from any numberof examples. People sr-rbject to tyrannical gov-ernlnents often face tragic choices betu'een self-preservat ion and just i f ied resistance-that is,between giving priorit-v to their prudential or totheir justice obligations; similarly, there are man,vdifficult public policy choices that pit importantenvironmental aims against the demands of jus-tice. But r,vhen it comes to our obligations to otherhuman beings specificaily, justice sometimes seemsto have an imperialistic tendency to engross thervhole of rr-rorality.

Aristotle himself observed the trmbigtiity thiscauses: 'S7hen lve describe a person as jttst, do rvesimply mean to say that he or she is virtuous ormoral in general; or do lve mean that he or she hassome specific virtue or moral disposition in particu-lar? The latter vierv is better. Sometimes, for exam-ple, strict justice demands punishments thrrt, in thenature of the circumstances. rvould be inhumane.This rvas supposed to be one of the lessons inShakespearre's Measure for Measure-that lusrrceshould be tempered rvith mercy. This tension ismost naturallv described ars a conflict between

7.J4 Justice, Theories of

competing mori l l <lbl igat ions: otrr obl igat ions ofjustice, on one hrrnd, ancl our hLurlruritariirn obliga-t ions, on the other. For this conf l ict fo e"en rr ise,justice cannot constitute the rvhole of ntoralitl '.

If, then, r,ve cftr r"rot take justice to constitute thervhole of rnor:r l i ty, r ,vhat best character izes i ts spe-cial or c l ist inct ive features? F-lere is one r- ierv.Humanitar ian obl igat ions are obl igat ions rve hirveto other people simply by virtr-re of the f:rct thatrhey are ( fel lo lv) hrunan beings; i t c loes not matte rlvho thef i r re, for example, or r ,vhat their relat ion-ship to us happens to be. Just ice is not l ike this. I tis rather a set of obl igat ions that ar ise specif ical ly 'lvhen 'uve share pol i t ic i r l , social , or econonric insr i-tut ions and pract ices with others. Very roughly,rve might say that the duty of l t rst ice is the dut l ' rvehave to "play fair" and observe the rules of ourcommon inst i t r , r t ions trnd pr:rct ices. Wher-r Ar istot leciescr ibed iust ice in ci istr ibut ion ancl rect i f icat ion,he r,vas in ei fect descr ibing the accepted norrns oifair deal ing in the societ ies rvi th rvhich he lvasfami l iar-namely, Greek communit ies oi thefourth century BCE. When there trre rewarrds to bedoled out, i t was expected that thel rvould be dis-tr ibr"r ted according to meri t ; rvhen promrses weremacle, it was expected that they r,vould be kept;and so on. The just person plavs iair and observesthe norms, wherears the r-rnjust person tr ies to getahead by cheat ing and evircl ing the norms. Theimportance of the duty of lLrst ice should thus beclear, for a f t rnct ioning societf is not possibleexcept on the basis of common inst i tut ions andpract ices. So too should be the fact that lust iceobl igat ions may compete rvi th other import i rntmoral obl igat ions and thtrs cannot const i t l l te thewhole of mor:al i ty. We might say, schematical l ,v,that moral i ty includes obl igat ions of just ice,humanitar ian obl igat ions, and any other obl iga-t ions we have t<,r our fel low humirn beings. Ethics,in turn, includes our moral obl igat ions, togetherwith any obl igat ions of prr ,rdence, obl igat ions tothe natural rvor ld, and so on.

I f the duty of lust ice is roughly our obl igat ion toobserve rhe rules of shared inst i t r-rr ions and prac-t ices, then i t has to be asked-rvi l l any set ofshared inst i tut ions and pract ices do? On this ques-t ion turns the essent ial di f ference between the clas-sic:r l and the modern approach to the problem ofjust ice. Classical pol i t icaI and moral thinkers ( l ikeAristotle) for the most part took the insritr"rrions

and prrrctices the,v rverc itlreircly' farrniliar rvith rrsgiven rrnd i rdclressed themseives to such rel i r tcdproblerns as these: Whv shoLrld rve be jr-rst? Canor-rr just ice obl igir t ions :rnd our prudent i i r l obl iga-t ions be reconci lec1? Where does lLrst ice conrcfrorn? What is i ts ontological status? For the rnocl-erns, [ r ,v contrast, these irre often periplreral con-cerns, r lnd the core di f f icul t ly is take n to bedeterminir-rg precisely rvhich set of inst i t r-r t ions anclpract ices is the r ight one. (Communitar i : rns are anexcept ion here: They fol lorv the classical v ier,v inrefusing to rrnswer tl-re lirtter cluestion, or-rvhichan-loLlnts to the same thing- in ansrvering i t onl i 'by saying that the r ight inst i tut ions i rnd 1'rract iccsare t l - Ie ones that a given scrciety happens, in iect.to have embraced.)

This brings Lrs to the icleir of socittl lustice: Atheory of social just ice is simpl.v a theor.v aboutwhat the r ight inst i tut ions :rnd pract ices rvould be.In other rvords, social jLrst ice is the re ferent of thedut i , of just ice. Ar istot le said that the lust personnot only acts;ust ly br-r t aIso lv ishes for what is;ust ;given the shi f t in empharsis from jr ,rst ice to socialjust ice, i t is or-r lv n:r tural to regirrcl the duty of jus-t ice i rs including sorne obl igat ion to real ize socialjust ice. Heuce, 'uve arr ive at John Rirwls 's def ini-t ion. r ,vhich can be taken as the standard rnodernview, of the duty of lust ice as the obl igat ion "t<rsupport and to cor lply with just i r -rst i t r -r t ions" scrfar as they er ist , and "to fr . rr ther just i r rrarrgementsnot yet establ ished." Beceruse the,v are the focr,rs ofmodern discr-rssions of just ice, the remainder ofthis entr ,v rvi l l d iscuss theories of social just icc.

The Architecture of Social Justice Thcorics

ln the r-rsual par lance cler ived from Rarvls, let usdef ine the "basic str l rctr l re" of society as the com-plete set of pol i t ical , social , and economic inst i tu-t ions and pract ices that cor-rst i tute the relat ively 'stable background condit ions or expect i l t ionsagainst which the members of a given society l iveout their lives. Ever,v societ-v has a b:rsic strllcture.Presumably, at any given t i rne, everl ' society alsofaces some set of feasible al ternat ives-mirny onlyslightly different, others e ntirel,v different thantheir exist ing basic strLlcture. At the core of anytheory of social j r , rst ice is a pr inciple or set of pr in-ciples whose funct ion i t is to rank-order exist ingand feasible al ternat ive bzrsic structures. I f the

Justice, Theories of 735

existing basic structure of societ.y is ranked at ornear the top, then rve rnight descr ibe that socier l ' asreasonabl l ' just (according to that theorl ' ) ; i f not,then we r l ight descr ibe r t as relat ively ur-r just. Inthe former case, the duty of yust ice would con-strain the mernbers of that society to support andcomply rvith the existing basic structure; in the lat-ter case) it u'ould direct them to rvork tou,ardestabl ishing one of the more just alrernat ives.

Utilitarianism-one of the mosr Dowerful ar-rdirr f luent ia l rnoderrr theor ies of social just ice--provides an i l lustrat ive exanrple. Accordir-rg tout i l i tar ianism, there is onl ,v one pr inciple of socialjustice, rougl-rl1' as follorvs:

Societ ies i l re just to the extent thert their basicstructure t r ' r rds. in C\pe\ ' t l l t i ( )n. t t r r r raximizr ' thesun.r total happiness of those persons affected bvi t . count ing the hcppiness of each affected personequal l r ' .

J"here is an extensive debate, of course, concerningthe relevant meanir-rg of the ternt happirzess in thist i reory, rvhich I rv i l l largely ignore. On u'hat isprobably the standard contemporary vierv, u-emay simplv sa-y that a person is happy ro the extentthat his or her preferences are sat isf ied, wharer,erthe content of those preferences happens to be.

Suppose that society S has basic structure B. I fthere er ists for S some feasible al ternat ive B" thatu'ould, in expectat ion, tend to produce a substan-t ial l ,v greater surn total happi l less, then, accordingto ut i l i tar ianism, u,e should regard S as an unjustsociet l ' to that extent. Other theories are moreconrpl icated. They might, for example, have morethan one pr inciple of social just ice, in u'hich caseprior i tv rules are needed to generate coherentrankings. But the funct ion of a pr inciple or pr in-ciples of just ice is always the same: namely, rorank-order feasible basic structures. Clonsiclered inthemselves, these rar-rking pr inciples are oftenreferrecl to as concept irns of social just ice-thar is,concept ions of rvhat i t nreans for a societ l ' ro becorrect l ,v regarded as 1ust. Thus, on the ur i l i tar ianl'ierv, n'hat it rneans for ir societv to lte lust is thati ts basic structure maximizes sLlm total heppiness.

Concept ions of social just ice are coustr l lcted, soto speak. out of var ious parts or r-nodules that f i ttogefher in a part icular u 'ay. Again, taking Lrt i l i -tar ianisrn as our exanrrr le. \ \ re can see that i t is bui l t

from three logicaily indeper-ident r-nodules. Thefirst is the clainr that u,hat matters, fronr a justicepoint of v iew, is the happiness of individual humanbeings. This module is often called welfarism, andit appears in concept ions other than ut i l i tar ianismas wel l . The second is the claim that basic struc-tures should aim to maximizc t l re sum total happi-ness (rather than, sa1,, nraximize equal l - rappinessor something else). The third is rhe claim thateveryone 's l rappiness should count the same-this is intended as an expression of our conru-r i r-ment to the rnoral equal i ty ' of al l human beings.Ut i l i tar ianism is constructed through the preciseconjunct ion of these three components; di f ferenttheories can be generated by' subst i tut ing di f ferentrnodules. For exarlple, subst i tut ing an equal i tymodule for the nraximizing module rvould gener-ate an "equal i ty of u,el fare" concept ion of socialjust ice; sucir theories have been proposed bvRichard Arneson, John Roemer, and others.Alternatively, rve might substitute aggregate rn,ealth,art ist ic and cultural development, or sonrethingelse for the rvclfarism module, r,r' l-rile retaining rhemaximizing module. And so on. Each of these di f-ferent concept ions must be assessed on rts o\\ 'ndistrnct ive meri ts.

The pr inciple or pr inciples of just ice form thecore of an) ' fheory of social just ice- i ts conceprionof u 'hat i t means for a society to be described asjust. There are, of course, nrany di f ferent and com-pet ing concept ions of social just ice. I t fol lorvs thata complete theorv should offer both a concept ionof rvhat it rneans for ir societ,v to be described asjust and some l ine of argumenr purport ing to sho'uvthat, in sorne reievant sense, this is the best or rightconcept ion. \Ve might think of this aspecr of atheorl ' of social just ice as a select ion mechanism ordecision procedure for choosing among the possi-blc competrng concept iorrs.

To be full,v effective, this decrsion proceduremust provide some sort of argument for each of thevarious moduies used in construct ing the relevantconcept ion. l -heories of social lust ice are notalna\,s ( indeed, rarely ' are) rvorked out so thor-oughly ' . To gi t 'e one notor j()us r \alnple, JohnStuart N4i l l 's argument for ut i l i tar ianisr.r-r turns outto offer an ar€lumenr onll' for the rvclfarism mod-ule and not the others: er,en i f he is r ight thatl-rappiness is u'hirt coLlltts, it ntust stil l be shou'nthat happiness shoulcl be maximized ancl rhat

736 lustice. Theories of

everyone's happiness should count the same. Themoclel case of ir thoroughly rvorked-out decisionprocedure is, of course, Rar,v ls 's or ig inal posi t ionargument. His concept ion of ;ust ice as fa i rness, asis rvel l known, has trvo pr inciples:

1. E:rch person has the same indefeasible c l : r im toa ful ly i rdequir te scheme of equal basic l ibert ies,r,vhich schenre is compatible rvith the samescheme of I ibert ies for a l l .

2. Social ancl economic inequal i t ies are ro sat isf ,vt 'ur. 'o conditions: f irst, rhev are to be attached tooffices urnd positions open to alI r.rndercondi t ions of fa i r equal i ty of opportur.r i rv; andsecond, they are to be to the greatest benefit ofthe least aclvantaged n'rembers of society ( the,- l iFfo. . . , -o ^" i . , - ir . . , . - .pre).

Compared with ut i l i tar i i rnism's bracing sim-pl ic i ty, j r -rst ice i rs fairness is clear ly a cumbersomeconcept ion. Unl ike Lrt i l i tar ianism, however, jus-t ice as fairness hirs i rn except ional ly detai led andsophist icatecl just i f icatory i rppirratus. Roughlyspeaking, the argument is that reasonable peoplein an or iginal posi t ion behind a vei l of ignorancer 'vould select the two pr inciples of just ice as fair-ness over any of the leading cornpet i tors, ut i I i tar i -anism inclr-rded. Each of the var ious lvorkingparts of the concept ion, according to Rarvls, canbe given sLrpport through the or iginal posi t ionargument.

The Diversity of Contemporary Theories

There is no agreed-on standard typoiogy of thetherlr ies of social just ice discussed in the conrem-porary l i ter: l t l r re. One possibi l i ty is to charracerrzetheories of social just ice according to their pro-fessed relationship 'nvith r,vhat are called "concep-t ions of the good." A concept ion of the good is,roughly speaking, an account of what makes ahuman life go better or worse; a complete theoryof the good would thus be a complete account ofhuman f lour ishing.

Some theories start frclm the assllmption thatthe pr inciples of just ice derive their val idi ty inde-pendent ly of any part icular concept ion of the goodand thus that the former have a certain sort ofpriority over the latter-that justice limits or con-strains the acceptable conceptions of the good,

perhaps. These sorts of theories are general lycalled deontological theories. Ra'uvls's theory ofjust ice as fairness is one example. By contrast,other theories start f rom the contrary assumptionthat the pr inciples of yust ice mLrst der ive theirval idi ty from some independent ly establ ished con-cept ion of the good and thus that the lat ter has acertain sort of pr ior i ty over the former. These aregenerally called teleological theories. Among thelatter, some specif ical ly def ine social just ice as rhemaximizat ion of some independent ly establ ishedgood and so might be called strictll ' teleologicaltheories. Other teleological theories might def inethe r ight r ls the honoring of an independent lyestabl ished good in some way other th:rn by maxi-mizing i t . Ut i l i tar ianism is a str icr ly teleologicaltheory, insofar as i t starts with an independent lyestabl ished good (happiness) and then goes on todef ine sociar l j r"rst ice as the maximizat ion of thatgood. Eqr"ral i ty of welfare, by contrast, is teleologi-cal , but not maximizing: The best way to honorthe importance of happiness to individuals, i rmight be argr-red, is to ensure that everyone has anequal opportunity to :rchieve i t . A nonw.elfar istexample of a good-honoring theory might beRonald Dr 'vorkin 's ethical l iberal ism: In his view,societ ies are j r-rst to the extenr that their basrc struc-tures are designed so as to honor a specif ic l iberalconcept ion of the good.

Theories of social just ice also make assunrpt ionsabout how a complete concept ion of the gooditself ought to be ',vorked ollt. One might, forexample, assume that there is one best or mostexcellent sort of human life for everyone: Theoriesbased on this assr-rmption are generally called per-fectionist theories. T'nvo examples frequenth' dis-cussed in the contemporary I i terature ere civ ichumanism and l iberai perfect ionism. According tocivic humanisrn, the best human l i fe is one ofact ive ci t izenship and civic vir tue in a broadlydemocrat ic community; according to l iberal per-fect ionism, the best human l i fe is one based onautonoffrous sel f-ref lect ion. ( l t is not always clearfrorn the literature whether these goods are sLrp-posed to be promoted or honored, but both theo-r ies are usual ly taken to be teleological .)Tradit ionalStoic and Christ ian theories are also perfect ionist ,insofar as they are based on a conception of humanexcel lence as moral or rel ig ious vir tue. Indeed,histor ical ly speaking, perfect ionism has more or

Justice, Theories of 737

less been the norm. Many contemporary theories,however, are not perfect ionist : That is to say, the,vare to soffle extent agnostic torvard differing con-ceptions of the good, at least as a matter of prin-ciple. Such theories are var iously cal led neutral ,impart ial , or ant iperfect ionist , al though each ofthese terms can be ser iously misleading. This isbecause perfect neutral i ty or impart ial i t l ' towardal l possible concept ions of the good is i rnpossible,and in any case. i t is not alrvays (or even often) the:direct aim of such theories. The best term mightsrmply 6c nonlterfccI i r t t r ist .

These trvo issues are sometimes confused rvitl-tone another. For example, i t is f requent ly assumedthat perfect ionist theories are necessari ly teleologi-cal . This is an easy mistake to make, for i t is natu-ral to think that i f a theory holds one sort ofhuman l i fe to be the most excel lent for al l , then i tmust also define the right as the pror-noting or thc)honoring of this part icular sort of excel lence. Butthe tradi t ional Stoic and Christ ian theories provideclear counter instances: Both start rv i th an indepen-dent l ,v der ived concept ion of the r ight as rnoral orrel igious vir tue and then go on to def ine a goodhuman l i fe as one l ived in accordance u, i th thosepart icular v ir tues. In other rvords, they are deonto-logical , but nevertheless perfect ionist theories.Conversely, teleological theories need not be per-fect ionist . Ut i l i tar ianism is an example of thisbecause it defines the good in a lr'ay that is (u,ithinlimits) agnostic torvard u,hat makes people happ1,:It directs us to satisfl ' the preferences that peoplehave, regardless of what those preferences happento be.

Some further groups of theories have not yetbeen discussed. The f i rst are l ibertar ian theories ofsocial just ice, rvhich hold that societ ies are just tothe extent that their basic structures respect thernatural r ights of individuals. These are deonto-logical , insofar as the relevant schedule of naturalr ights is general ly assumed to derive i ts val idi t ) 'independent ly of any part icular concept ion of thegood ancl thus operate as a side-constraint on thelatter; and also nonperfect ionist , insofar as thel 'are agnost ic as a matter of pr inciple tou'ard theconcept iorrs of the good individuals l -rappen tohold. The second are del iberat ive-democrat ic theo-r ies of sociai just ice, according to rvhich societ iesare just to the extent that their basic structuresrealtze some form of political equalitl.. These

theories ( in contrast rv i th civ ic humanism) are notperfectionist, but u'hether they are deontologicalor teleological depends on horv the value of pol i t i -cai equal i ty is understood. The third are funct ion-ing-based theories. These are teleological theoriesthat start rv i th an independent account of humanflour ishing as consist ing in var ious dimensions ofbasic funct ioning. (An-rong these is assun-red to bethe freedom to develop individual ized l i fe plans,ensuring that funct ioning-based theories wi l l benonperfect ionist .) Most are not str icth ' teleologi-cal , horvever, insofar as the). usual ly go on todef ine a society as just to the extent that i ts basicsrrucrure secures a suff ic ient level of funct ioninsfor everyone.

A final major contenrporar,v theor,v is communt-tar ianism. Communitar ians hold that a socierf isjust to the extent that i ts basic structure ref iects, insome respect, the shared values of i ts mernbers. I tis thus impossible to classi fy the theory because theshared values of di f ferent communit ies obviouslydiffer u'idely.

An ent irel l ' d i f ferent way to divide up the con-tenrporar\' ' field is rvith respect to the various deci-sion procedures one might emplor ' . There is notnearly, such diversi t l ' at this level as there is at thelevel of pr inciples of social just ice themselves.Moreover, man,v of the tradi t ional decision proce-dures have been thoroughlv discredited, leavingthe current f ie ld rather narrow indeed. Prominentamong the discredited vieu's rve f ind var ious theo-logical arguments and arguments from nature.The former hold that the correct pr inciples of jus-t ice are those that best ref lect God's wi l l , e i ther asexpressed in Scripture or as rat ional ly deducedfrorn assumed theological premises. These sorts ofargurnents have been abandoned for obvious rea-sons. Argurnents from nat l l re hold that the correctpr inciples of just ice are those that, in sonre sense,ref lect or imitate rvhat rve observe in the naturalrvor ld. Natr-rral ist ic arguments u'ere discredited inlarge part through the efforts of G. E. tr4oore, wirc'rshorved that norn-Iat ive conclusions cannot bederived from str ict l l ' r -ratural ist ic premises. (Does i tfollou' from tl-re fact that malaria is a part ofnature that vn'e have r- io reason to combat i t? Ofcourse not.)

In place of these sorts of t radi t ional v iervs,N4oore, W. D. Ross, and others in the early part ofthe N'entieth centun' advanced a crr,'nto-Platoriic

7.18 Justice, Theories of

doctrine of intuitiottistrt, '...ccording to rvhich lvecan apprehend an independent order of (nonnatu-rml) moral facts merely by consr: l t ing our intui t iveevaluat ions. Al though not lv i thout some contem-porary sympathizers, intui t ionism too has largelyia l len hy the rveysrdc.

For al l intents and ptrrposes, then, only threesorts of decision procedure current ly command asignif icant fol lowing. The f i rst proposes that thebest concept ion of social just ice is the one thatwould most advance the prudent ial sel f- interest ofthe people who rvould l ive r"rnder i ts guidance. Onthis vierv, we can think of the pr inciples of sociallust ice as represent ing terms of mutual coopera-t ion to r ,vhich a group of sel f- interested and pru-dent ial bargainers lvould agree, those terms thenpresumably deriv ing their normative just i f icat ionirorn some version of ethical egoism. Theories ofsocial jLrst ice relying on this sort of just i f icatoryapparatlrs are oiten described as mutual aduantagetheories. Just ice as mutuai : rdvantage has ar dist in-guished pedigree: Versions of the argl lment werecliscr"rssed in Plato's Republic, later defended bl'Epicurus, ancl f inal ly given a sophist icated exposi-t ion by Thomas Hobbes. In contemporary pol i t i -cal theory and phi losophy, mutual advantagearguments have been advancecl for ut i l i ter ianisrnand a version of just ice as fairness, but they aremclst of ten emploved on behalf of l ibertar ian con-cept ions of social justrce.

lVlutual advantage theories are subject to anumber of ser ious object ions. The f i rst is that theywould, in their operir t ion, merely repl icate whert-ever imbalances of power exisr pr ior to the termsof agreement: This is because the prudent ial sel f-interest of al l the part ies dictates that they sepa-rately make the best use of their respect ivebargaining power in securing terms favorable tothemselves. The second (related) object ion is thatmutual advi lntage can give no account of our obl i -gations to people from whom rve have no reasonto expect benef i ts-for example, the members offuture generat ions. These are, of course, externalcomplaints. The third object ion is internal to themutual advantage theory i tsel f . Suppose that agroup of sel f- interested and prLrdent ial bargainersagree on terms of social justice that lvould bemutual ly benef ic ial i f compl iance was common.The quest ion remains; What reason does any givenmember of that group have to comply

"vith those

terms on the occasions lvhen unilatererl defectionrvoulcl happen to promote sel f- interest? Within rhemLltllal advantage framervork, no lvorkabie anslverto this last quest ion has yet been sr-rppl ied.

The second ancl perhaps current ly most popularsort of decision procedure derives from the moralphi losophy oi Immanuel Kant and holds that thebest concept ion of sociai just ice is the one thatreasonable people would choose under fair condi-t ions. l 'h is decision procedure retains the idea thatlve should think of social just ice as represent ingterms of mutual cooperat ion, but i t replaces sel f-interested and prudent i : r l bargainers with reason-able people and adds that the circumstarnces oftheir del iberat ion must be fair . In this context, rea-sonable people are general ly understood to bethose who are sui tably motivated to f ind terms ofcooperat ion acceptable to al l ; and fair condit ionsare general ly understood to be (at a minimum)condit ions of eqr-ral birrgaining strength. Theoriesof social j r"rst ice relying on this sort of lust i f icatoryapparatus might be cal led consent-based rheories.The most inf luent ial consenr-based theories areRarrvls 's aforementioned or iginal posi t ion argu-ment; the contractar ianism of T. M. Scanlon,Brian Birrry, and Thomas Nagel; and Ji- i rgenHabermas's " ideal speech si tuat ion" argument.Consent-based arguments have been advzrnced forut i l i rar ianism, but they are usual ly employed onbehal f of l iberal theor ies broirdly s imi lar toRalvls 's.

There are, of course, difficr-rlties r'vith consent-based arguments as rvel l . These revolve aroundrvhat might be cal led the Euthyphro problem-namel,v, the ambiguity as to r,vhether the clainr issupposecl to be that the pr inciples selected expressthe r ight account of social just ice because they(and not others)

"vould be chosen by reasonablepeopie under sr-r i table condit ions; or whether theargument is that reasonable people under sr"r i tablecondit ions rvould choose those pr: inciples (and notothers) because they express the r ight account ofsocial just ice.

This br ings us to the third and last decisionprocedure rvi th signi f icant contemporary adher-ents, also ( interest ingly) proposed by Rawls: themethod of reflectiue equilibrium. On this view,the best concept ion of social just ice is the one thatsi ts rvel l rv i th al l the moral (and other) intr-r i t ionsrve have, on reflection, decided to keep. The idea

Justice, Theories of 739

is roughll, to first propose a conception and thentest i t against a range of cases. Assuming that ourintui t ions regarding some of those cases (specif i -cal ly, r ,vhether they capture our sense of whatjust ice demands) do not correspond with theresults generated by the proposed concept ion) \ \ /er,v i l l have to make adjustments to the former, thelatter, or both. In rnaking these adjustments, ourjudgments are guided by the relat ive strengrh ofour var ious intui t ions and b1' the power and ut i l -i ty of al ternat ive concept ions: Roughly speaking,one concept ion is better than another i f i t captr,rresmore of our stronger intui t ions rvi th greater con-ceptual ef f ic iency. After an i terated process oftest ing and adjust ing, rve eventual ly arr ive at aresult we are l rappy lv i th- in other words, lve endup with a concept ion that rests in equi l ibr ium al lthe intui t ior-rs regarding social just ice that u 'ehave, after ref lect ion, decided to keep. Relyingprimari l ,v on the value of coherence, the ref lect iveequi l ibr ium rr-rethod need not invest in i t ia l intr-r-i t ions as such with unwarral .r ted metaphysicalsigni f icance; however, i t does leave the ontologi-cal status of social yust ice sornethiug of a myster) ' .Thus, no one decision procedure has 1.et carr iedthe f ie ld.

The Front iers of SocialJust ice

A theory of social just ice is a theory about rvhatrvould make the basic structure-the institutionsand pract ices of a society- just. As usual ly formu-lated, hou,ever, such fheories are often incorrplete.They do not, for erample, address lust ice betu'eenpresent and distant future generations, betll 'ee nthe vict ims and perpetrators of past in just ices, orbetu'een the members of one society and the mem-bers of others. Considerable effort in recent _vearshas been directed at extending the boundaries orfront iers of our theories into these intportant areasof intergenerat ional, t ransi t ior-ral , and global jus-tice. (Tlrese extensiotts are distir-rct fron altplictt-tions of social justice: anor-rg the latter we migi-rtinclude the topics of distr ibut ive, pol i t ical , or legal;ust ice.) Unfortunatelv, space permits only a l ' ' r icfdiscussion of each.

The quest ion of just ice benneen generat ions isamonl l the rnost interest ing and the most phi lo-sophical ly chal lenging topics. Sorne of the di f f icul-t ies ar ise from "t ime'5 2J11;11,"- the fact that eacl-r

successive generat ion is absolutely power/ess withrespect to its predecessors and absolutely powerfulrvith respect to its successors. This rneans thataccounts of intergenerat ional lust ice cannot rely inany obr. ious way on not ions of mutual reciproci ty:We have nothing to fear but also nothing to hopefrom future generat ions. Other di f f icul t ies ar isefrorn the compl icated interact ion of the problemof resource consumption and the problem ofpopulat ion. Hou, many people should l ive maydepend, in part, on how mon1, ls5sllrces will beavai lable, and hou' many resources the presentgenerat ion should leave for future generat lousrnay depend, in part, on horv many people wiill ive. There exists a fascinat ing and highly sophist i -cated l i terature that aims to puzzle through thesevarious problems.

Theories of social just ice are designed for moreor less stable ongoing societ ies; fhus, we have noreason to expect that such theories will rvorkequal ly rvel l rvhen the cont inui tv of social andpol i t ical inst i tut ions or pract ices has beer-r deci-sively broken. The l i terature <ln transi t ional just iceaddresses the special set of problems that ar ise inthe wake of a transi t ion from a substant ial l ,v unjustsociett ' to a relat ivel ,v more just one. Most discus-sions are focused on the transi t ion from aurocrarrcto democrat ic forms of government specif ical l ,v,but u 'e might also consider other malor transl-t ions, as for example from a slave-holding to anon-slave-holding society. Not ice that the issueshere are fundamental ly issues of the present-namely, rvhat just ice requires of us here and nol 'nu,ith respect to the fact that, in the recent past, oursociai or pol i t ical inst i tut ior-rs were substant ial lyunjust. The di f f icul t f is that, in the rvake of a tran-si t ion, there are l ikelr , manv people around lvh<rlvere compl ic i t in the eari ier in just ice and indeedu'ho engaged in conduct that, under the nerv dis-pensat ion, is prohibi ted and (perhaps) punishable.The temptation is \/er)' strong, especially on thepart of those u'ho suffered under earl ier in just ice,to cal l these people to account. But against thismust be n'eighed both pragmatic and pr incipledconsiderat ions: Pragmatical ly speaking, the resis-tance to just ice is l ikelv to be stronger i f i t is knou,nthat al l in jr-rst ices u' i l l be punished; and in pr incr-ple, i t is sometinres unclear rvl-rether one should bepr.rnisired for conduct that, at the t inre performed,was not fulll ' understood to be r,vrong.

740 Justice in Nledieval Thought

Internat ional actors, l ike indiv iduaI people,have r ights and obl igat ions ar is ing out of a duty ofj r"rsr ice. They also, again l ike individuals, have( potent ia l l . ' - ) competing prudent ial and mora I obl i -gart ions. An example of the former might be rheobl igat ions of a state to pursue i ts securirv inter-ests; an example of the lat ter might be the duty ofany internat ionarl actor to rel ieve suffer ing inhumanitar ian disasters around the r ,vor ld. Theduty of internat ional lust ice is dist inct f rom these:I t is, roughly, the obl igat ion of internir t ional actorsto further jLrst glob;r l inst i tut ions and pracr ices.The latter-rvhich might be referred to as thebasic structure of global society- include the rulesgclverning the recognitron and autonomy of states;the complex nexus oi internir t ional t rade agree-ments, global capital markets, internat ional lend-ing inst i t r-r t ions, and so on; the var ious prect icesand convent ions of just lvar; and so on. Dif ferentconf igurat ions of this global basic structure mightbe regarded as more or less just, and internir t ionalactors mr.rst have some obl igat ion to br ing abor"rtancl maintain yust conf igurart ions, so far as theyare i rble. In other rvords, a concept ion of globaljLrst ice is the internat ional analogue of i l concep-t ion of soci i r l j r"rst ice-that is, i t is i rn account ofthe referent of the duty of internat ional j r . rst ice,much as i l concept ion of sociar l just ice is i rnaccount of the referent of the individual 's dr.r ty ofjust ice. Global just ice has emergecl in recent yearsas one of the most dynamic :rnci procir-rct ive areasof contemporary research.

Frdnk Louett

S ee also Civic Flumanisr.n; Commur.ritarian ism;Contractr-ral ism; Del iberat ive Democracy,; GlobalJustice; lrrtergener:rtional Justice; .fustice in NledievalThought; Liberal ism; Libertar ianism; Raivls. John;-[ransitionirl Justice

Further ReadingsAristot le. (1998). l t l icontachean ethics ( .1.1-. Ackr i l l , Ed.).

Oxforcl, UK: Oxford University Press.Barry, B. (1989). Thertr ies of just ice. Berkeley: Liniversin '

of Clalifornia Press.B:rrry, B. ( 1995). .lustice as impttrtialirl '. Oxford, UK:

Oxford University Press.Dworkin, R. (2000). Souereign uirttrc: Tbc theory antl

practice ol eqttt l i ty. Cambridge, N{A: HarvardUniversity Press.

( ' t ruthier, D. (1986). Nktrals bl ogreetrrcnt Oxford, IJK:Cllarendon Press.

Nozick, R. (1974). Anarch1,, state, and rtopla. NervYork: Bi is ic Books.

\ltrssbarrnr, I,I. C. (2007) . The f 'rctntiers of justice:D i s db i l i ty, nat it t na I it,t, s p e ci e s rnemh e r sh i p.Cambric lge, \ lA: Belknap Press.

Rarvls, .1. \197 11. A theory of justice. Cambriclge, MA:Belknap Press.

Rarvls, J. (200 1). Jttstice as fairness: A restdtemeilt(E. Kel ly, Ed.) . Carnbr ic ige, N' lA: Belknap Press.

Raz, J. (1986). Nloral i ty of f reedom. Oxfor:d, UK:Clarendon Pr:ess.

I{oenrer, J. 1-.. ( t996). Thertries of t l istributiue jttstice.Cambriclge, \1A: Flarvard LJniversit,v Press.

'fro1'er, -J. (l--d ) (200.1). The classical uti l i tctrians:

Bentham and Mi l l . Indianapol is, IN: Hackett .Walzer, N,l. (1983). Spheres of justice: A tlefense of

l,tluralism dnd eqLralit\,. Ne'uv York: Biisic Books.Young, I. \{. (1990). Jrtstice and the polit ics of t l i i ference.

Princeton, NJ: Princeton Universitv Press.

Jusrrcn n MnoTEVAL TnoucnrThroughout and ' ,vel l past the Middle Ages, j r -rs-t ice remained a rnerl leable concept thar could con-note general ideas of r ight or express subjecr iveclar ims to compensat ion or retr ibut ion for in lury.In concrete si tuat ions, disputants coir ld and didexploi t royal judicial inst i tut ions, or act outsideof them, to achieve just ice as they r-rnderstood ir .Nevertheless, by the end of the period, jLrst icei tsel f , as a specif ic duty and funct ion of govern-ment, hird come to ref lect a divine and henceroyal responsibi l i ty to uphold order in the publ icinterest by cletermining gui l t for of fenses agir insrthe pr-rbl ic interest and imposing rhe appropriarepunishment. This entry descr ibes the Romanroots of the medieval concept of just ice and thenerplores i ts evolr ,r t ion during the Middle Ages.Although a vier,v of just ice as personal and subjec-t ive persisted throughout the medieval per iod,Chr ist ian rnodels of just ice also had an impacr,part icular iy when rulers in the early Middle Agesclaimed to act on God's behalf . The conceot ofj r-rst ice as a responsibi l i ty of the state beiemeincreasingly importanr in the high and late MiddleAges. The emergence of these themes is traced inthis entry.