JUSTICE

The concept of justice is closely interrelated with the concept of rights. Violation of rights, for example, might be considered injustice. Yet a person might be deprived of certain rights, such as the right to life, and still be considered to have received a “just” treatment. This is the justification for capital punishment.

What is meant by the term justice? Often, fairness is used as a synonym. To be treated justly is to be treated fairly. But a more specific sense of justice involves deservedness. Justice has to do with getting what you deserve. Consider these examples: After robbing a bank, the three perpetrators meet and divide the loot three ways. Each receives an equal share as each took an equal risk. One could say that each received his fair share. But were they deserving of the loot? It did not belong to them in the first place. One can hardly argue that a robber deserves to keep what he can steal. Or this example: Four men are on a lifeboat in the middle of the ocean with no food and faced with imminent starvation. They decide to draw straws to see who will be killed and eaten by the other three. The man who draws the short straw is the loser. Is this not a fair way to decide who will die? Didn’t the loser have the same chance as the others? But did he deserve to die? Should luck be the sole determining factor?

Some other characteristics of justice are:

1. Justice involves the treatment of human beings by human beings. A person who is killed by a bolt of lightning has not been treated unjustly or justly (unless one thinks in terms of punishment from God). Racial prejudice, on the other hand, is unjust in that it involves people treating other people in a way not in accordance with their deserts.

2. Justice is past-looking. If justice requires that people get what they deserve, their deserts must be based upon some past record. A criminal receives punishment for a crime committed, not for something that has yet to happen.

3. Justice is individualistic. It is individuals that deserve good or ill, not groups. It may be that all members of a group deserve the same thing, such as a group of terrorists, but this is due to the actions of each member of the group, not the group as a whole. I would not be treating you justly if I took all the grades of the class, averaged them, and gave every one the same grade. This is an example of collectivism. Collectivist thinking is probably the main source of injustice. Everyone in the group may or may not be treated fairly, but they are not being treated justly. Each individual is not getting what he/she deserves.

4. Comparative justice is not collective justice (with our definition there can be no such thing as collective justice!). Comparative justice has to do with the way one person is treated in comparison to another. Criminals rarely complain about their punishment, if they believe they deserve it, but they object to seeing someone else who has committed the same or equally serious crime receive a lesser punishment. In other words, all people deserving of the same thing, be it reward or punishment, should receive it equally.

5. The reward or punishment should be in proportion to the deed or act. In the 19th century, poachers (illegal hunters) were hanged. While one could argue that stealing someone else’s game was deserving of punishment, most would agree that the taking of a human life for the crime of killing, say a rabbit, was too severe.

Justice requires that everyone be treated equally. But what does this mean? Does it mean that all people should be treated the same? This will not do. Felons are sent to jail, non-felons are not; this is unequal treatment. Aristotle attempted to solve this with the axiom: “Justice is treating equals equally and unequals unequally.”

One could argue that no one should receive special treatment. Yet we often think it is just to give special treatment. The college basketball team that wins the NCAA Tournament gets to visit the White House and meet the President. No other college basketball team is accorded this honor. But as champions, don’t they deserve special treatment?

Perhaps the best description would be “no person should be preferred to another or chosen above another for irrelevant reasons.” The problem then becomes deciding what reasons are irrelevant. Or what should be criteria of desert? This takes us into the realm of distributive justice. This is the study of the grounds for handing out justice. Because Marxist theory is concerned with this subject, we shall reserve our discussion of it until we study Marxism.

This brings us finally to the question of punishment. We must first define the term. One could say that a boxer took a lot of punishment in the ring. But this is not the sense in which we wish to use the term. One boxer wasn’t punishing the other for something he did. Rather, pain and discomfort are simply the price he pays for being involved in the match. We should distinguish between punishment and suffering.

Punishment must involve unpleasantness, otherwise people would seek it and not tend to avoid it. it also must be for some offense that a person has committed. And punishment must be administered by some group or person who has special authority to do it, and must be done according to certain laws or rules. For example, a person who was raped stalks her assailant and tortures him. She believes she has punished him for his offense against her. What she has actually done is committed an act of vengeance. Punishment is an institutional concept, vengeance is not. A person who takes the law into her own hands is also deserving of punishment.

Why should this be the case? Several reasons can be given:

1. Punishment according to law is supposed to end the matter. A person is found guilty and punished, the affair is over. If the victim were to take vengeance and justify it on moral grounds, then the person or relatives of the person upon whom vengeance was taken could then take vengeance themselves. As in the case of feuds, this could go on indefinitely.

2. Punishment administered by the court should be unbiased. Vengeance, on the other hand, can’t help but involve biased people. Usually, the aggrieved person tends to exaggerate the severity of the offense, leading to an unjust punishment.

3. Legal punishment acts within accordance to law and is controlled therein. The punishment can be expected in advance.

Three ethical theories on punishment are:

1. The Utilitarian Theory

Punishment should be for the good of society and should only be administered when the good consequences outweigh the bad ones. In this sense, punishment can be used for rehabilitation, deterrence, and protection of society. A utilitarian could argue that capital punishment is needed because it would serve to deter others from committing a crime which carries such severe penalty, and would protect society from the offender committing the crime again. Thus, the good outweighs the evil of taking a human life.

The problems with this theory are many. First, if little good comes from punishment, why even punish? Few people would ever be in the position to commit a crime such as the Watergate conspirators did. And those that are in such a position can see the effects that crime had on America. Thus, it is unlikely that they would commit such a crime so deterrence is not needed. The conspirators themselves are no longer in position to commit such a crime again and thus are not in need of rehabilitation. According to the utilitarian little good could come from punishing these men, especially in comparison to the pain and hardship such punishment would cause the men and their families.

Second, the theory does not speak of justice. A punishment useful to society may not be just. Think again of the poor poachers of the 19th century. Hanging them certainly achieved the aforementioned goals of utilitarian punishment, but was the crime equal to the punishment?

2. Retributive Theory of Punishment

According to this theory, punishment should only be administered when it is deserved, and then to the extent that it is deserved. Deterrence, protection, and rehabilitation have nothing to do with it. Rather, a moral balance has been disturbed by the injustice act, and punishment is required to restore the balance.

Of course the problem with this theory is determining the severity of the punishment. “An eye for an eye” philosophy would seem to make the punisher as morally guilty as the offender if punishment is meted out for no other reason than retribution.

3. The Restitution Theory

This theory suggests that the offender must make restitution to, or pay back, the victim(s). Since the victim is likely to overestimate the damaged caused, it is the role of the courts to determine what restitution is to be made. This theory would seem to satisfy both the utilitarians and retributionists, as it helps the victim (so often overlooked in most justice systems), contributes to the good of society by making amends for the crime, and seems to punish equally to the crime. If I stole $100 from you, isn’t it just that I pay you back the $100, plus some extra money for the anguish I may have caused?

Alas, there are problems with this theory as well. First, how can one make restitution for murder? If I killed your father, would my adopting you replace him? Hardly! Second, is it equal punishment for all offenders? A wealthy person would have little trouble paying back money while a poor person might have to work many years to pay it back. Obviously, the two are not being punished equally for the same crime. What if the guilty person were old, sick, or died shortly after restitution began? Finally, and most severe, this system does not take into account the difference between intentional and unintentional crimes. If the damage is the same, the restitution is the same. But is this just? If your car experienced brake failure and you struck and injured someone, is it just for you to receive the same punishment as someone who was driving drunk and caused an accident?

As you are no doubt becoming aware, there are no easy answers in ethics!