6th September 2017

Former SCCJR research assistant Michelle Donnelly explores the roots of justice, based on work undertaken at the University of Stirling.

Justice is a core moral and political concept with deep roots in the philosophical tradition. A review of accounts of justice posited by ancient Greek through to contemporary philosophers establishes that justice is a rational concept, dependent upon reason rather than sentiment, and charts the development of notions of desert, liberty, equality and fairness which have emerged as central to a contemporary understanding of justice. Since Aristotle, a distinction has been made between corrective and distributive justice.[1] This distinction remains influential within contemporary thought and has been relied upon to contrast legal justice about the punishment of wrongdoing and compensation of injury via the creation and enforcement of a public set of rules, with social justice relating to the distribution of socio-economic burdens and benefits throughout society[2].

Legal justice essentially relates to righting wrongs. It embodies the retributive, desert-based, idea that liability corrects an injustice inflicted on one individual by another[3]. In legal terms, justice is primarily concerned with how decisions about rights and obligations are taken and so relates to fairness in the procedures providing access to criminal and civil justice. Central to this is the rule of law: that is, a constitutional doctrine which dictates the way in which society is governed and seeks to balance individual liberty with social order. Formal[4], procedural[5] and substantive[6] accounts of the rule of law locate the doctrine as a body of normative principles relating to how democratic societies should be organised, so that power is appropriately balanced between citizens and the state, and how disputes arising within such societies should be negotiated, so that disagreements concerning established norms can be fairly resolved. The interplay between justice and the rule of law thus highlights the recurring themes of liberty, equality and fairness.

Accounts of social justice, relating to the morally preferable distribution of socio-economic burdens and benefits, are ideologically diverse[7]. They highlight the prominence of Rawls’ liberal conception of justice as fairness[8]. However what is considered “fair”, and hence the specific demands of justice, is seen to vary according to theorists’ ideological perspective. Challenges to the liberal paradigm embrace the notion of fairness by striking a different balance between the imperatives of liberty and equality. In simplest terms, justice is rooted in the prominent notion of desert. Although what people are considered to deserve is also coloured by partisan political views and results in a different emphasis on the imperatives of merit and need. This suggests that justice is malleable and comprises contested concepts, relating to juxtaposed notions of liberty and equality, merit and need. However, the literature reveals an increasing emphasis on the promotion of equality and need, in the name of fairness, which have become key demands of justice within liberal democratic societies[9].

Overall, this analysis supports an understanding of justice that is much broader than crime and criminal justice. It thus promotes an agenda that acknowledges and addresses wider meanings of justice within society. Justice is about rights and obligations, burdens and benefits, resources and opportunities. It encompasses criminal and civil matters, relating to public and private law disputes, and concerns the political processes and structures that create and enforce social norms and shape and determine socio-economic distributions. Whilst justice has traditionally been viewed as a negative, conservative, minimalist and public value, directed towards conserving social order and maintaining the status quo, it is equally clear that there are positive, reformist, maximalist and private notions of justice[10]. Research and scholarship that promotes equality (over liberty) and need (rather than merit) could go some way to foster a justice agenda that supports transformative social change.

[1] Aristotle, The Nicomachean Ethics in Thomson, J.A.K (trans.) (Penguin Classics, 1976) Book V.

[2] Miller, D. (1976) Social Justice (Clarendon Press) p. 22.

[3] Weinrib, E.J. (2002) “Corrective Justice in a Nutshell”, The University of Toronto Law Journal, 52(4), p. 349

[4] Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution (McMillian, 1982); Fuller, L. (1964) The Morality of Law (Yale University Press).

[5] Raz, J. (1977) The Authority of Law (Oxford University Press).

[6] Bingham, T. (2010) The Rule of Law (Allen Lane).

[7] See, Nozick, R. (1974) Anarchy, State and Utopia (Basic Books); Sandel, M.J. (1982) Liberalism and the Limits of Justice (Cambridge University Press); Neilsen, K. (1979) “Radical Egalitarian Justice: Justice as Equality”, Social Theory and Practice, 5(2); Nussbaum, M.C. (1999) Sex and Social Justice (Oxford University Press).

[8] Rawls, J. (1999) A Theory of Justice (Revised Edition: Belknap of Harvard University Press, 1971).

[9] Raphael, D.D. (2001) Concepts of Justice (Clarendon) pp. 5 – 7.

[10] Campbell, T. (2010) Justice (Palgrave MacMillan) pp. 6 – 8.