The principles of justice

Notre Dame Law Review

Volumn 75, Issue 5, 2000, Pages 1859-1891

  Wright, Richard W ^a  

^a CHICAGO KENT COLLEGE OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0034404323     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (150)

1. THE FEDERALIST No. 51, at 358 (James Madison) (Benjamin Fletcher Wright ed., 1961).
2. See, e.g., H.L.A. Hart, Problems of Philosophy of Law, in 6 THE ENCYCLOPEDIA OF PHILOSOPHY 264, 274-75 (Paul Edwards ed., 1967). The equal extension to all of the fundamental legal protections of person and property is now generally regarded as an elementary requirement of the morality of political institutions, and the denial of these protections to inno-cent persons, as a flagrant injustice. . . . . . . . ... [I] t seems clear that utilitarian principles alone cannot give any account of the moral importance attached to equality and in general to the notion of the just, as distinguished from an efficient, distribution as a means of happiness. Id.
3. See, e.g., H.L.A. Hart, Problems of Philosophy of Law, in 6 THE ENCYCLOPEDIA OF PHILOSOPHY 264, 274-75 (Paul Edwards ed., 1967). The equal extension to all of the fundamental legal protections of person and property is now generally regarded as an elementary requirement of the morality of political institutions, and the denial of these protections to inno-cent persons, as a flagrant injustice. . . . . . . . ... [I] t seems clear that utilitarian principles alone cannot give any account of the moral importance attached to equality and in general to the notion of the just, as distinguished from an efficient, distribution as a means of happiness. Id.
4. JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980).
5. JOHN FINNIS, AQUINAS: MORAL, POLITICAL, AND LEGAL THEORY (1998).
6. Although Finnis makes few references to Kant's theory, and the few references he makes usually refer to perceived weaknesses in Kant's theory, many of the arguments in his monograph on Aquinas - for example, on human freedom and dignity, persons as "ends in themselves," the supreme principle of morality, and internal versus external freedom and the proper role of the state with respect to each - are very similar in content and phraseology to those of Kant and were developed more explicitly, prominently, and systematically by Kant than by Aquinas (or by Aristotle).
7. FINNIS, supra note 4, at 170 (footnotes omitted); see also id. at 136, 240.
8. Id. at 176.
9. See id. at 41.
10. Id. at 177.
11. Id. at 178-79 (footnotes omitted).
12. See IMMANUEL KANT, THE METAPHYSICS OF MORALS *213-14, 221-23, 225-27, 379-80 & n.*, 383, 394, 397, 405 (Mary Gregor trans., Cambridge Univ. Press 1991) (1797).
13. Id. at *434-35.
14. See FINNIS, supra note 3, at 90. Kant has a similar list of (morally obligatory) ends, which are encompassed by one's own perfection (including cultivation of one's physical, mental, moral, and social capacities) and the happiness of others (through beneficence, charity, respect, friendship, etc.). He distinguishes these morally obligatory ends from one's own happiness, an end which one naturally has and hence for which the concept of duty is inapplicable, and the perfection of others, an end which others can only set and pursue for themselves. See KANT, supra note 11, at *385-88, 391-93, 418 n.*, 448-73. Thus, Finnis's description of Kantian ethics - that it "knows the bonum rationis [good of practical reasonableness] but no other basic, intelligible human good" - seems mistaken. FINNIS, supra note 4, at 138-39. The major difference between Kant on the one hand and Finnis (and Aquinas and Aristotle) on the other is that, for Finnis, knowledge of the basic human goods is induced from human experience, see id. at 87-89, whereas Kant claims to deduce them from the supreme principle of morality (the categorical imperative), see KANT, supra note 11, at *215-17, 225-26. However, Kant adds, [A] metaphysics of morals cannot dispense with principles of application, and we shall often have to take as our object the particular nature of man, which is known only by experience, in order to show in it what can be inferred from universal moral principles. But this will in no way detract from the purity of these principles or cast doubt on their a priori source. Id. at *216-17.
15. See FINNIS, supra note 3, at 90. Kant has a similar list of (morally obligatory) ends, which are encompassed by one's own perfection (including cultivation of one's physical, mental, moral, and social capacities) and the happiness of others (through beneficence, charity, respect, friendship, etc.). He distinguishes these morally obligatory ends from one's own happiness, an end which one naturally has and hence for which the concept of duty is inapplicable, and the perfection of others, an end which others can only set and pursue for themselves. See KANT, supra note 11, at *385-88, 391-93, 418 n.*, 448-73. Thus, Finnis's description of Kantian ethics - that it "knows the bonum rationis [good of practical reasonableness] but no other basic, intelligible human good" - seems mistaken. FINNIS, supra note 4, at 138-39. The major difference between Kant on the one hand and Finnis (and Aquinas and Aristotle) on the other is that, for Finnis, knowledge of the basic human goods is induced from human experience, see id. at 87-89, whereas Kant claims to deduce them from the supreme principle of morality (the categorical imperative), see KANT, supra note 11, at *215-17, 225-26. However, Kant adds, [A] metaphysics of morals cannot dispense with principles of application, and we shall often have to take as our object the particular nature of man, which is known only by experience, in order to show in it what can be inferred from universal moral principles. But this will in no way detract from the purity of these principles or cast doubt on their a priori source. Id. at *216-17.
16. FINNIS, supra note 4, at 41.
17. FINNIS, supra note 3, at 100.
18. Id. at 102-03.
19. See id. at 88-89, 93-96, 103-05. Finnis identifies several methods or requirements of practical reasonableness, see id. at 102-27, which, however, all seem to be encompassed by the requirement of forming and pursuing a coherent and rational life plan which properly takes into account all the basic goods and the multiplicity of others with whom one co-exists. Finnis himself states that "all the requirements are interrelated and capable of being regarded as aspects one of another," id. at 105, and treats them as all being "aspects of the real basic good of freedom and reason," id. at 126-27. In his monograph on Aquinas, he takes a more unitary approach to the good of practical reasonableness, encapsulating it in the supreme principle of morality, "love of neighbor as oneself." FINNIS, supra note 4, at 126; see also infra Part II.
20. FINNIS, supra note 4, at 41 n.68 (parentheticals omitted); see also ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 48-51 (1974).
21. FINNIS, supra note 3, at 95.
22. Id.
23. FINNIS, supra note 4, at 85.
24. Id. at 85-86.
25. Id. at 105.
26. Id. at 107.
27. Id.
28. See ARISTOTLE, NICOMACHEAN ETHICS bk. 1, ch. 7. (W.D. Ross & J.O. Urmson trans.), in 2 THE COMPLETE WORKS OF ARISTOTLE 1729 (Jonathan Barnes ed., 1984); see also id. bk. 1, ch. 9, at 1099b25-1100a5.
29. See ARISTOTLE, NICOMACHEAN ETHICS bk. 1, ch. 7. (W.D. Ross & J.O. Urmson trans.), in 2 THE COMPLETE WORKS OF ARISTOTLE 1729 (Jonathan Barnes ed., 1984); see also id. bk. 1, ch. 9, at 1099b25-1100a5.
30. Id. bk. 1, ch. 2, at 1095a14-a23; see also id. bk. 1, ch. 5, at 1095b22-b31; id. bk. 1, ch. 8, at 1099a12-a16.
31. Id. bk. 1, ch. 2, at 1095a14-a23; see also id. bk. 1, ch. 5, at 1095b22-b31; id. bk. 1, ch. 8, at 1099a12-a16.
32. Id. bk. 1, ch. 2, at 1095a14-a23; see also id. bk. 1, ch. 5, at 1095b22-b31; id. bk. 1, ch. 8, at 1099a12-a16.
33. Id. bk. 1, ch. 5, at 1095b13-b22.
34. Id. bk. 1, ch. 5, at 1096a6-a8.
35. See ARISTOTLE, POLITICS bk. 7, ch. 1, at 1323a36-1324a1 (B. Jowett trans.), in 2 THE COMPLETE WORKS OF ARISTOTLE 1986 (Jonathon Barnes ed., 1984); see also id. bk. 1, ch. 10, at 1258a38-b8.
36. See ARISTOTLE, POLITICS bk. 7, ch. 1, at 1323a36-1324a1 (B. Jowett trans.), in 2 THE COMPLETE WORKS OF ARISTOTLE 1986 (Jonathon Barnes ed., 1984); see also id. bk. 1, ch. 10, at 1258a38-b8.
37. See FINNIS, supra note 4, at 113-16, 120-22, 242-52; FINNIS, supra note 3, at 147-56, 168-69.
38. See ARISTOTLE, supra note 30, bk. 2, ch. 2, at 1261a14-b15; id. bk. 7, ch. 8, at 1328b15-b22; see also Martha C. Nussbaum, Shame, Separateness, and Political Unity: Aristotle's Criticism of Plato, in ESSAYS ON ARISTOTLE'S ETHICS 395, 395-97, 415-27 (Amélie O. Rorty ed., 1980) [hereinafter ARISTOTLE'S ETHICS].
39. ARISTOTLE, supra note 30, bk. 3, ch. 9, at 1280b33-1281a4; see also id. bk. 7, ch. 2, at 1324a22-a23 ("Now it is evident that that form of government is best in which every man, whoever he is, can act best and live happily."); id. bk. 7, ch. 9, at 1329a21-a24 ("[A] city is not to be termed happy in regard to a portion of the citizens, but in regard to them all.").
40. ARISTOTLE, supra note 30, bk. 3, ch. 9, at 1280b33-1281a4; see also id. bk. 7, ch. 2, at 1324a22-a23 ("Now it is evident that that form of government is best in which every man, whoever he is, can act best and live happily."); id. bk. 7, ch. 9, at 1329a21-a24 ("[A] city is not to be termed happy in regard to a portion of the citizens, but in regard to them all.").
41. ARISTOTLE, supra note 30, bk. 1, ch. 2, at 1253a2-a3; see ARISTOTLE, supra note 26, bk. 9, ch. 9, at 1169b17-b21.
42. ARISTOTLE, supra note 30, bk. 1, ch. 2, at 1253a25-a26.
43. Id. bk. 3, ch. 6, at 1278b24-b25; see also id. bk. 1, ch. 2, at 1252b28-1253a32.
44. FINNIS, supra note 4, at 132 (emphasis in original); see also id. at 126-29.
45. Id. at 128, 139-40.
46. I am indebted to Alexander Tsesis for the following examples. In Judaism the earliest formulation of this rule is found in Leviticus 19:18: "Love thy neighbor as thyself, I am the Lord." The renowned first century rabbi Hillel, when asked by a potential convert to explain the Torah while he stood on one foot, replied, "What is hateful to you, do not to your neighbor: that is the whole Torah, while the rest is commentary thereof; go and learn it." BABYLONIAN TALMUD, Shabbath 31a, translated in THE BABYLONIAN TALMUD 140 (I. Epstein ed. & trans., 1987). Jesus stated, "Whatever you would want people to do to you, so do unto them likewise; this is the law and the prophets." Matthew 7:12. Many scholars believe Confucius's teaching was along the same lines. "Tzu-kung asked, 'Is there one word which can serve as the guiding principle for conduct throughout life?' Confucius said, 'It is the word altruism (shu). Do not do to others what you do not want them to do to you.'" Analects 15:23, in A SOURCE BOOK IN CHINESE PHILOSOPHY 44 (Wing-tsit Chan ed. & trans., 1963) [hereinafter CHINESE PHILOSOPHY]. "Confucius said, '[Tseng Tzu], there is one thread that runs through my doctrines. . . .' After Confucius had left, the disciples asked [Tseng Tzu], 'What did he mean?' Tseng Tzu replied, 'The Way of our Master is none other than conscientiousness (chung) and altruism (shu).'" Analects 4:15, in CHINESE PHILOSOPHY, supra, at 27. Professor Chan explains the significance of this passage as follows: "All agree . . . on the meanings of chung and shu . . . . [C]hung means the full development of one's [originally good] mind and shu means the extension of that mind to others . . . . Here is the positive version of the Confucian golden rule." Id. at 27 (commenting on Analects 4:15); see generally H.T.D. ROST, THE GOLDEN RULE: A UNIVERSAL ETHIC (1986).
47. I am indebted to Alexander Tsesis for the following examples. In Judaism the earliest formulation of this rule is found in Leviticus 19:18: "Love thy neighbor as thyself, I am the Lord." The renowned first century rabbi Hillel, when asked by a potential convert to explain the Torah while he stood on one foot, replied, "What is hateful to you, do not to your neighbor: that is the whole Torah, while the rest is commentary thereof; go and learn it." BABYLONIAN TALMUD, Shabbath 31a, translated in THE BABYLONIAN TALMUD 140 (I. Epstein ed. & trans., 1987). Jesus stated, "Whatever you would want people to do to you, so do unto them likewise; this is the law and the prophets." Matthew 7:12. Many scholars believe Confucius's teaching was along the same lines. "Tzu-kung asked, 'Is there one word which can serve as the guiding principle for conduct throughout life?' Confucius said, 'It is the word altruism (shu). Do not do to others what you do not want them to do to you.'" Analects 15:23, in A SOURCE BOOK IN CHINESE PHILOSOPHY 44 (Wing-tsit Chan ed. & trans., 1963) [hereinafter CHINESE PHILOSOPHY]. "Confucius said, '[Tseng Tzu], there is one thread that runs through my doctrines. . . .' After Confucius had left, the disciples asked [Tseng Tzu], 'What did he mean?' Tseng Tzu replied, 'The Way of our Master is none other than conscientiousness (chung) and altruism (shu).'" Analects 4:15, in CHINESE PHILOSOPHY, supra, at 27. Professor Chan explains the significance of this passage as follows: "All agree . . . on the meanings of chung and shu . . . . [C]hung means the full development of one's [originally good] mind and shu means the extension of that mind to others . . . . Here is the positive version of the Confucian golden rule." Id. at 27 (commenting on Analects 4:15); see generally H.T.D. ROST, THE GOLDEN RULE: A UNIVERSAL ETHIC (1986).
48. I am indebted to Alexander Tsesis for the following examples. In Judaism the earliest formulation of this rule is found in Leviticus 19:18: "Love thy neighbor as thyself, I am the Lord." The renowned first century rabbi Hillel, when asked by a potential convert to explain the Torah while he stood on one foot, replied, "What is hateful to you, do not to your neighbor: that is the whole Torah, while the rest is commentary thereof; go and learn it." BABYLONIAN TALMUD, Shabbath 31a, translated in THE BABYLONIAN TALMUD 140 (I. Epstein ed. & trans., 1987). Jesus stated, "Whatever you would want people to do to you, so do unto them likewise; this is the law and the prophets." Matthew 7:12. Many scholars believe Confucius's teaching was along the same lines. "Tzu-kung asked, 'Is there one word which can serve as the guiding principle for conduct throughout life?' Confucius said, 'It is the word altruism (shu). Do not do to others what you do not want them to do to you.'" Analects 15:23, in A SOURCE BOOK IN CHINESE PHILOSOPHY 44 (Wing-tsit Chan ed. & trans., 1963) [hereinafter CHINESE PHILOSOPHY]. "Confucius said, '[Tseng Tzu], there is one thread that runs through my doctrines. . . .' After Confucius had left, the disciples asked [Tseng Tzu], 'What did he mean?' Tseng Tzu replied, 'The Way of our Master is none other than conscientiousness (chung) and altruism (shu).'" Analects 4:15, in CHINESE PHILOSOPHY, supra, at 27. Professor Chan explains the significance of this passage as follows: "All agree . . . on the meanings of chung and shu . . . . [C]hung means the full development of one's [originally good] mind and shu means the extension of that mind to others . . . . Here is the positive version of the Confucian golden rule." Id. at 27 (commenting on Analects 4:15); see generally H.T.D. ROST, THE GOLDEN RULE: A UNIVERSAL ETHIC (1986).
49. I am indebted to Alexander Tsesis for the following examples. In Judaism the earliest formulation of this rule is found in Leviticus 19:18: "Love thy neighbor as thyself, I am the Lord." The renowned first century rabbi Hillel, when asked by a potential convert to explain the Torah while he stood on one foot, replied, "What is hateful to you, do not to your neighbor: that is the whole Torah, while the rest is commentary thereof; go and learn it." BABYLONIAN TALMUD, Shabbath 31a, translated in THE BABYLONIAN TALMUD 140 (I. Epstein ed. & trans., 1987). Jesus stated, "Whatever you would want people to do to you, so do unto them likewise; this is the law and the prophets." Matthew 7:12. Many scholars believe Confucius's teaching was along the same lines. "Tzu-kung asked, 'Is there one word which can serve as the guiding principle for conduct throughout life?' Confucius said, 'It is the word altruism (shu). Do not do to others what you do not want them to do to you.'" Analects 15:23, in A SOURCE BOOK IN CHINESE PHILOSOPHY 44 (Wing-tsit Chan ed. & trans., 1963) [hereinafter CHINESE PHILOSOPHY]. "Confucius said, '[Tseng Tzu], there is one thread that runs through my doctrines. . . .' After Confucius had left, the disciples asked [Tseng Tzu], 'What did he mean?' Tseng Tzu replied, 'The Way of our Master is none other than conscientiousness (chung) and altruism (shu).'" Analects 4:15, in CHINESE PHILOSOPHY, supra, at 27. Professor Chan explains the significance of this passage as follows: "All agree . . . on the meanings of chung and shu . . . . [C]hung means the full development of one's [originally good] mind and shu means the extension of that mind to others . . . . Here is the positive version of the Confucian golden rule." Id. at 27 (commenting on Analects 4:15); see generally H.T.D. ROST, THE GOLDEN RULE: A UNIVERSAL ETHIC (1986).
50. I am indebted to Alexander Tsesis for the following examples. In Judaism the earliest formulation of this rule is found in Leviticus 19:18: "Love thy neighbor as thyself, I am the Lord." The renowned first century rabbi Hillel, when asked by a potential convert to explain the Torah while he stood on one foot, replied, "What is hateful to you, do not to your neighbor: that is the whole Torah, while the rest is commentary thereof; go and learn it." BABYLONIAN TALMUD, Shabbath 31a, translated in THE BABYLONIAN TALMUD 140 (I. Epstein ed. & trans., 1987). Jesus stated, "Whatever you would want people to do to you, so do unto them likewise; this is the law and the prophets." Matthew 7:12. Many scholars believe Confucius's teaching was along the same lines. "Tzu-kung asked, 'Is there one word which can serve as the guiding principle for conduct throughout life?' Confucius said, 'It is the word altruism (shu). Do not do to others what you do not want them to do to you.'" Analects 15:23, in A SOURCE BOOK IN CHINESE PHILOSOPHY 44 (Wing-tsit Chan ed. & trans., 1963) [hereinafter CHINESE PHILOSOPHY]. "Confucius said, '[Tseng Tzu], there is one thread that runs through my doctrines. . . .' After Confucius had left, the disciples asked [Tseng Tzu], 'What did he mean?' Tseng Tzu replied, 'The Way of our Master is none other than conscientiousness (chung) and altruism (shu).'" Analects 4:15, in CHINESE PHILOSOPHY, supra, at 27. Professor Chan explains the significance of this passage as follows: "All agree . . . on the meanings of chung and shu . . . . [C]hung means the full development of one's [originally good] mind and shu means the extension of that mind to others . . . . Here is the positive version of the Confucian golden rule." Id. at 27 (commenting on Analects 4:15); see generally H.T.D. ROST, THE GOLDEN RULE: A UNIVERSAL ETHIC (1986).
51. FINNIS, supra note 4, at 128.
52. See id. at 127-28, 138-39.
53. See id. at 131 n.g. Finnis notes further, [The categorical imperative functions] in content though not in literary form like the "first moral principle" in the moral theory outlined by Grisez [and himself]: "In voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those possibilities whose willing is compatible with a will towards integral human fulfilment." Id. (quoting Grisez).
54. IMMANUEL KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS *421 (Lewis White Beck trans., MacMillan 1990) (1784).
55. Id. at *429. In yet another formulation, Kant states, "The rational being must regard himself always as legislative in a realm of ends possible through the freedom of the will, whether he belongs to it as member or as sovereign." Id. at *434; see also id. at *432-34. Compare Kant's second formulation with Finnis's argument that preserving and promoting the common good by refusing to sacrifice the innocent for the "greater good" of others "makes sense only if the common good is taken to include exceptionless respect for the good - and the rights - of all the members of the community considered one by one as ends in themselves." FINNIS, supra note 4, at 168 n.160 (second emphasis added).
56. Id. at *429. In yet another formulation, Kant states, "The rational being must regard himself always as legislative in a realm of ends possible through the freedom of the will, whether he belongs to it as member or as sovereign." Id. at *434; see also id. at *432-34. Compare Kant's second formulation with Finnis's argument that preserving and promoting the common good by refusing to sacrifice the innocent for the "greater good" of others "makes sense only if the common good is taken to include exceptionless respect for the good - and the rights - of all the members of the community considered one by one as ends in themselves." FINNIS, supra note 4, at 168 n.160 (second emphasis added).
57. Id. at *429. In yet another formulation, Kant states, "The rational being must regard himself always as legislative in a realm of ends possible through the freedom of the will, whether he belongs to it as member or as sovereign." Id. at *434; see also id. at *432-34. Compare Kant's second formulation with Finnis's argument that preserving and promoting the common good by refusing to sacrifice the innocent for the "greater good" of others "makes sense only if the common good is taken to include exceptionless respect for the good - and the rights - of all the members of the community considered one by one as ends in themselves." FINNIS, supra note 4, at 168 n.160 (second emphasis added).
58. KANT, supra note 43, at *430 n.14; see also KANT, supra note 11, at *450-51.
59. See FINNIS, supra note 4, at 127.
60. See id. at 126 n.114, 138 n.30.
61. Id. at 127.
62. See JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 15 (London, MacMillan 1876) (1789).
63. Mary Warnock, Introduction to JOHN STUART MILL, UTILITARIANISM, ON LIBERTY, ESSAY ON BENTHAM 7 (Mary Warnock ed., 1962).
64. See, e.g., BENTHAM, supra note 49, at 17 n.1; JEFFRIE G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: AN INTRODUCTION TO JURISPRUDENCE 72, 74 (rev. ed. 1990).
65. See WILL KYMLICKA, CONTEMPORARY POLITICAL PHILOSOPHY: AN INTRODUCTION 47 n.1 (1990). Kymlicka continues, It is impossible for any theory to contain a double maxim, and any attempt to implement it quickly leads to an impasse (e.g., if the two possible distributions are 10: 10: 10 and 20: 20: 0, then we cannot produce both the greatest happiness and the happiness of the greatest number). Id.; see also FINNIS, supra note 3, at 116.
66. See WILL KYMLICKA, CONTEMPORARY POLITICAL PHILOSOPHY: AN INTRODUCTION 47 n.1 (1990). Kymlicka continues, It is impossible for any theory to contain a double maxim, and any attempt to implement it quickly leads to an impasse (e.g., if the two possible distributions are 10: 10: 10 and 20: 20: 0, then we cannot produce both the greatest happiness and the happiness of the greatest number). Id.; see also FINNIS, supra note 3, at 116.
67. JOHN STUART MILL, UTILITARIANISM, in 10 COLLECTED WORKS OF JOHN STUART MILL 218 (J.M. Robson ed., University of Toronto Press 1963) (1861).
68. Id.
69. See, e.g., KANT, supra note 11, at *393 ("[A] maxim of promoting others' happiness at the sacrifice of one's own happiness, one's true needs, would conflict with itself if it were made a universal law."); see also id. at *451-52. In his initial discussion of the golden rule, Finnis ties it to the principle of impartiality between persons and to the perspective of the ideal neutral observer or spectator, and he equates the impartiality principle with the often-cited moral requirement that one's moral judgments be universalizable. See FINNIS, supra note 3, at 107-08. However, as Kant notes, the requirement that one's moral judgments be universalizable, which is fundamental in the golden rule and Kant's categorical imperative, is distinct from and indeed incompatible with the requirement of complete impartiality of interest between persons that constitutes the principle of utility. As Finnis recognizes, in order to be able to lead one's own life, it is often necessary to be able, in private decisions concerning one's own commitments and the allocation of one's own resources, to prefer one's own interests and the interests of one's family, friends, and groups over the interests of others. See id. at 107-08, 112-14, 144-45, 304; FINNIS, supra note 4, at 117.
70. See, e.g., KANT, supra note 11, at *393 ("[A] maxim of promoting others' happiness at the sacrifice of one's own happiness, one's true needs, would conflict with itself if it were made a universal law."); see also id. at *451-52. In his initial discussion of the golden rule, Finnis ties it to the principle of impartiality between persons and to the perspective of the ideal neutral observer or spectator, and he equates the impartiality principle with the often-cited moral requirement that one's moral judgments be universalizable. See FINNIS, supra note 3, at 107-08. However, as Kant notes, the requirement that one's moral judgments be universalizable, which is fundamental in the golden rule and Kant's categorical imperative, is distinct from and indeed incompatible with the requirement of complete impartiality of interest between persons that constitutes the principle of utility. As Finnis recognizes, in order to be able to lead one's own life, it is often necessary to be able, in private decisions concerning one's own commitments and the allocation of one's own resources, to prefer one's own interests and the interests of one's family, friends, and groups over the interests of others. See id. at 107-08, 112-14, 144-45, 304; FINNIS, supra note 4, at 117.
71. See MILL, supra note 53, at 257 ("[O] ne person's happiness, supposed equal in degree (with the proper allowance made for kind), is counted exactly as much as another's."); id. at 258 ("[T]he truths . . . of arithmetic are applicable to the valuation of happiness, as of all other measurable quantities.").
72. See BENTHAM, supra note 49, at 1-7; Jeremy Bentham, Anarchical Fallacies, in NONSENSE UPON STILTS: BENTHAM, BURKE AND MARX ON THE RIGHTS OF MAN 53 (Jeremy Waldron ed., 1987).
73. MILL, supra note 53, at 251.
74. See, e.g., FINNIS, supra note 3, at 116; KYMLICKA, supra note 52, at 18-44; MURPHY & COLEMAN, supra note 51, at 72-75, 80-81; Hart, supra note 2.
75. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 8-9 (4th ed. 1992). For further discussion of the inadequacy of the utilitarian conception of the good, see FINNIS, supra note 3, at 95-97, 114, KYMLICKA, supra note 52, at 12-18, and MURPHY & COLEMAN, supra note 51, at 75-79.
76. See ARISTOTLE, supra note 30, bk. 1, ch. 1, at 1252a1-a6; id. bk. 1, ch. 2, at 1252b28-b30; id. bk. 3, ch. 9, at 1280a31-b13; FINNIS, supra note 4, at 114-15, 132; see also supra text accompanying notes 32-36.
77. See ARISTOTLE, supra note 30, bk. 1, ch. 1, at 1252a1-a6; id. bk. 1, ch. 2, at 1252b28-b30; id. bk. 3, ch. 9, at 1280a31-b13; FINNIS, supra note 4, at 114-15, 132; see also supra text accompanying notes 32-36.
78. See ARISTOTLE, supra note 30, bk. 3, ch. 6, at 1279a17-a19 ("[G]overnments which have a regard for the common interest are constituted in accordance with strict principles of justice . . . ."); id. bk. 3, ch. 12, at 1282b14-b16 ("[The] greatest good" is the end of political science, "of which the good is justice, in other words, the common interest."); FINNIS, supra note 4, at 132-33; FINNIS, supra note 3, at 164-66; KANT, supra note 11, at *318 ("By the well-being of a state is understood . . . that condition in which its constitution conforms most fully to principles of Right [justice]; it is that condition which reason, by a categorical imperative, makes it obligatory for us to strive after.").
79. The concept of justice is narrower than the concept of fairness with which it is sometimes confused. While a broad array of actions and situations are said to be unfair, it is not common to describe them as unjust unless they also involve the other two elements listed in the text. Finnis notes some especially broad, metaphorical uses of the word "justice," such as when one speaks of "doing oneself justice" by actually doing as one is capable of doing. FINNIS, supra note 3, at 161. In the same vein, we sometimes speak of "doing justice to a meal" - that is, consuming and enjoying it as it deserves, given its merit as a meal. These metaphorical uses of the term obviously fall outside the central meaning of justice.
80. See ARISTOTLE, supra note 26, bk. 5, ch. 1, at 1129b27-1130a13.
81. Id. bk. 5, ch. 1, at 1129a31-b2.
82. See supra text accompanying note 65. Aristotle describes equity as a form of justice which is "better than one kind of justice" - the "legal justice" of the written law - since it resorts directly to the fundamental principles of natural justice as "a correction of legal justice" where the latter is defective owing to its generality. ARISTOTLE, supra note 26, bk. 5, ch. 10, at 1137b6-b27; see also ARISTOTLE, RHETORIC bk. 1, eh. 13, at 1374a25-b23 (W. Rhys Roberts trans.), in 2 THE COMPLETE WORKS OF ARISTOTLE 2152 (Jonathon Barnes ed., 1984).
83. ARISTOTLE, supra note 26, bk. 5, eh. 6, at 1134a25-a26.
84. ARISTOTLE, supra note 66, bk. 1, eh. 10, at 1368b7-b9 (distinguishing between "general law" - "all those unwritten principles which are supposed to be acknowledged everywhere"-and "special law" - "that written law which regulates the life of a particular community"); id. bk. 1, ch. 13, at 1373b1-b9 (distinguishing between "universal law" - "the law of nature" or "natural justice" - and "particular law" - "that which each community lays down and applies to its own members: this is partly written and partly unwritten").
85. ARISTOTLE, supra note 26, bk. 5, ch. 7, at 1134b18-b22; cf. FINNIS, supra note 4, at 266-69 (discussing Aquinas's treatment of this distinction and the related concept of determinatio).
86. See ARISTOTLE, supra note 30, bk. 3, ch. 11, at 1282b1-b12.
87. ARISTOTLE, supra note 26, bk. 5, ch. 1, at 1129b13-b26 (emphasis added).
88. Id. bk. 5, eh. 2, at 1130b6-b21.
89. See id. bk. 10, ch. 9, at 1179b20-1180a24.
90. Id. bk. 5, ch. 1, at 1129b14-1130a14; see also id. bk. 1, ch. 13, at 1102a7-a10 ("The true student of politics . . . wishes to make his fellow citizens good and obedient to the laws."); id. bk. 5, ch. 2, at 1130b22-b25 ("[P]ractically the majority of the acts commanded by the law are those which are prescribed from the point of view of excellence taken as a whole [rather than from the point of view of 'particular' justice]; for the law bids us practise every excellence and forbids us to practise any vice."); ARISTOTLE, supra note 30, bk. 3, ch. 9, at 1280a31-b14.
91. See supra text accompanying note 65.
92. See ARISTOTLE, supra note 26, bk. 2, ch. 5, at 1106a3-a6; id. bk. 2, ch. 6, at 1106a25-1107a8.
93. Id. bk. 5, ch. 1, at 1129b3-b4. The "being yielding" conception of deficiency is not explicit in Aristotle's account of particular justice, perhaps because being yielding - unlike being grasping - is not unjust, since one cannot be unjust to oneself. See Richard W. Wright, Substantive Corrective Justice, 77 IOWA L. REV. 625, 690-91 (1992).
94. The virtue of justice focuses on one's dealings with others' persons or instrumental goods, while the virtue of liberality focuses on one's dealings with one's own instrumental goods. Compare ARISTOTLE, supra note 66, bk. 1, ch. 9, at 1366b8-b11 ("Justice is the excellence through which everybody enjoys his own possessions in accordance with the law; its opposite is injustice, through which men enjoy the possessions of others in defiance of the law."), with ARISTOTLE, supra note 26, bk. 4, ch. 1, at 1119b22-1120a18 (stating that prodigality and meanness are the excess and deficiency, respectively, and liberality is the virtuous mean in one's disposition to share one's resources or wealth with others).
95. ARISTOTLE, supra note 26, bk. 5, ch. 2, at 1130a21-b5.
96. See id. bk. 5, ch. 2, at 1130b18-b21.
97. Note, for example, Aristotle's references to the substantive criteria of "particular" justice - "proportional" and "arithmetic" equality - in the following passage: [P]olitical justice . . . is found among men who share their life with a view to self-sufficiency, men who are free and either proportionately or arithmetically equal, so that between those who do not fulfil this condition there is no political justice but justice in a special sense and by analogy. For justice exists only between men whose mutual relations are governed by law; and law exists for men between whom there is injustice; for legal justice is the discrimination of the just and the unjust. Id. bk. 5, ch. 6, at 1134a26-a32. The substantive criteria of "proportional" and "arithmetic" equality are discussed in Part IV.
98. See FINNIS, supra note 4, at 239-42, 247-52. Acknowledging that Aquinas's articulation of this fundamental point is "not as clear as we may wish," Finnis adds that "[w]hen Kant and Mill announce positions similar to Aquinas', their attempted justifications are, at bottom, at least as sketchy." Id. at 239. Here especially it seems to me that Finnis slights Kant's contributions. This point lies at the heart of Kant's moral philosophy and is argued by him fully, forcefully, repeatedly, and consistently. See Wright, supra note 77, at 647-61; see also supra text accompanying notes 11-12, 42-45; infra text accompanying notes 84-94, 109.
99. FINNIS, supra note 4, at 227; see also id. at 221-28; id. at 230-31 (equating disturbing others' peace with violations of justice). However, Finnis defends legally mandated habituation to the "justice-related" virtues: [Governments may seek] to promote justice-related virtues by requiring patterns of conduct which should habituate its subjects to the acts of these virtues, [but] the law cannot rightly demand that people acquire, or be motivated by, these virtuous states of character or disposition. As Aquinas reiterates, the law's requirements (though not its legitimate objectives) are exhausted by "external" compliance. Id. at 233-34 (citation omitted).
100. See KANT, supra note 11, at *218-20, 379-80, 396-97, 406.
101. Id. at *231; see also id. at *231-32, 239.
102. Id. at *237; see also id. at *236-38, 305-06.
103. Id. at *306 (parenthetical omitted).
104. See id. at *231, 253, 255-57, 306, 312.
105. Id. at *231 (emphasis added).
106. See id. at *257, 312.
107. See id. at *256, 307, 312.
108. See id. at *246-47, 250-53, 255-57, 261-69, 312. Finnis, noting that Aquinas fails to provide any explicit argument for the existence of coercive law, supplies an argument which parallels Kant's. See FINNIS, supra note 4, at 242, 247-51; see also infra text accompanying note 119.
109. See KANT, supra note 11, at *379-81.
110. See id. at *219-20, 239, 381. The supreme principle of virtue is, "Act in accordance with a maxim of ends that it can be a universal law for everyone to have." Id. at *395.
111. FINNIS, supra note 4, at 118.
112. FINNIS, supra note 4, at 130 n.e, 215-16 n.a; see also FINNIS, supra note 3, at 193-94 n.VII.2.
113. See supra text accompanying notes 66-69.
114. FINNIS, supra note 4, at 118-19, 130 n.e, 216 n.a; FINNIS, supra note 3, at 164-65, 193-94 n.VII.2.
115. See FINNIS, supra note 3, at 194 n.VII.2.
116. See id. at 161-64; cf. supra text accompanying note 63.
117. See FINNIS, supra note 3, at 164-65; see also FINNIS, supra note 4, at 216 n.a.
118. FINNIS, supra note 4, at 188; see FINNIS, supra note 3, at 161, 164.
119. See FINNIS, supra note 4, at 118 ("This willingness to treat common good . . . as the point of one's actions as they bear on individuals (including oneself) is called 'general justice.'"). Finnis comments, One has no rights vis-à-vis oneself, and in that strict sense no "duties to oneself" and cannot do oneself a wrong {iniuria} or injustice . . . . But many of the responsibilities entailed by the good of practical reasonableness concern conduct which has no direct relationship to others (and in an extended sense of justice one's duties to oneself - e.g. of cleanliness and, more important, of regulating oneself by reason's rule . . . - are duties of "justice" . . .). Id. at 138 n.30.
120. Id. at 215-17 n.a.
121. Id. at 133; FINNIS, supra note 3, at 166, 169 n.10, 171, 304.
122. FINNIS, supra note 3, at 164-65; see also FINNIS, supra note 4, at 224-25, 232-33; Bernard Williams, Justice As a Virtue, in ARISTOTLE'S ETHICS, supra note 32, at 189.
123. See ARISTOTLE, supra note 26, bk. 5, ch. 6, at 1134a16-a23; see also id. bk. 3, eh. 1; id. bk. 3, ch. 5; id. bk. 5, chs. 8-9; Wright, supra note 77, at 695-700.
124. See ARISTOTLE, supra note 26, bk. 5, ch. 6, at 1134a16-a23; see also id. bk. 3, eh. 1; id. bk. 3, ch. 5; id. bk. 5, chs. 8-9; Wright, supra note 77, at 695-700.
125. See ARISTOTLE, supra note 26, bk. 5, ch. 6, at 1134a16-a23; see also id. bk. 3, eh. 1; id. bk. 3, ch. 5; id. bk. 5, chs. 8-9; Wright, supra note 77, at 695-700.
126. FINNIS, supra note 4, at 137-38; see also id. at 187-88, 232-34.
127. See KANT, supra note 11, at *214, 218-32, 312, 382 n.*, 379-80, 381-83 & n.*, 389-94, 401, 404-05, 446-47, 463. Compare Kant's account with that of Oliver Wendell Holmes: The standards of the law are standards of general application. The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. It does not attempt to see men as God sees them, for more than one sufficient reason. In the first place, the impossibility of nicely measuring a man's powers and limitations is far clearer than that of ascertaining his knowledge of law, which has been thought to account for what is called the presumption that every man knows the law. But a more satisfactory explanation is, that, when men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare [common good]. If, for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account. OLIVER W. HOLMES, THE COMMON LAW 86-87 (Mark De Wolfe Howe ed., Harvard Univ. Press 1963) (1881).
128. The discussion in this Part borrows from Wright, supra note 77, and Richard W. Wright, Right, Justice and Tort Law, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW 159 (David G. Owen ed., 1992).
129. ARISTOTLE, supra note 26, bk. 5, ch. 2, at 1130b30-1131a9.
130. See FINNIS, supra note 3, at 178.
131. Id. at 178-79. Finnis describes Aristotle's "corrective" justice as focusing solely on remediation and as ignoring the underlying wrong or injustice that justifies the remediation. See id. However, Aristotle's discussions of corrective justice pay considerable attention to the nature of the underlying injustice. See Wright, supra note 77, at 691-702. As Finnis notes, Aquinas's discussions of "commutative" justice contain similar ambiguities regarding its scope. See FINNIS, supra note 4, at 216.
132. See FINNIS, supra note 4, at 133; FINNIS, supra note 3, at 166, 177-78.
133. FINNIS, supra note 3, at 166; see also id. at 169 n.10.
134. Id. at 166.
135. Id. at 179.
136. FINNIS, supra note 4, at 188. One can only speculate as to what led Finnis to this position. One possible cause may have been frustration in attempting to follow and make coherent sense of Aristotle's loose and inconsistent terminology, which Aquinas apparently transplanted and multiplied with even further cross-cutting classifications. See id. at 188 ("Aquinas' efforts to follow Aristotle in classifying types of justice - its species, parts, and associated forms - yield no really clear and stable analytical pattern."); see also id. at 215-17 n.a. Another possible cause may have been Finnis's own occasional confusion and uncertainty in applying the two types of substantive justice, which apparently led him to believe that almost any situation could be described in light of either or both types of justice, making it not very worthwhile to distinguish between the two. See, e.g., FINNIS, supra note 3, at 169 n.10 (treating the opportunity of exercising some form of private ownership as "a requirement of commutative [interactive] justice in so far as, if everyone in a community is deprived of the opportunity of private ownership, for inadequate reasons, then each is being treated unfairly, regardless of the like treatment of the others"); id. at 179 (treating "apportionment of damages where there is contributory negligence or [apportionment] of the costs of litigation" as a "matter of distributive justice"). Finnis writes, [W]hether the subject-matter of his act of adjudication be a problem of distributive or commutative justice, the act of adjudication itself is always matter for distributive justice [f]or the submission of an issue to the judge itself creates a kind of common subject-matter, the lis inter partes, which must be allocated between parties, the gain of one party being the loss of the other. Id.; see also id. (describing a judge's "duty to apply the relevant legal rules . . . [as] one of commutative justice"); id. at 182 (treating the foreseeability limitations and frustration doctrines in contract law as matters of distributive justice because they take into account the parties' mutual perceptions of the risks covered by the contract); id. at 188-90 (viewing bankruptcy law's pro-rata satisfaction of creditors' corrective justice claims as a matter of distributive justice).
137. FINNIS, supra note 4, at 247-49; see also supra text accompanying notes 86-92.
138. See supra text accompanying notes 32-36, 61-62, 86-94, 109.
139. FINNIS, supra note 3, at 166.
140. FINNIS, supra note 4, at 188.
141. Finnis's heading for the section where this re-labeling occurs is, "Justice: Forms or Issues?" Id. at 187.
142. Id. at 133.
143. See ARISTOTLE, supra note 26, bk. 5, ch. 3, at 1131a10-1131b24.
144. Id. bk. 5, eh. 4, at 1131b26-1132b18.
145. For example, let A equal the parties' respective (presumed equal) pre-interaction holdings and B equal the unjust loss or (presumed equal) unjust gain. Then, the post-interaction holdings are A+B and A-B, respectively, and the arithmetic mean (average) of the post-interaction holdings is A+B+A-B divided by two, which is A. The arithmetic mean is implemented by taking B from the defendant and transferring it to the plaintiff. See ARISTOTLE, THE NICOMACHEAN ETHICS 116 (David Ross trans., Oxford Univ. Press 1984) (explaining arithmetical proportion as a heuristic device).
146. ARISTOTLE, supra note 26, bk. 5, ch. 3, at 1132a4-a6.
147. See Wright, supra note 77, at 695-702.
148. As Finnis notes, some problems may involve both types of substantive justice issues. See supra text accompanying note 115. In such situations, it is especially important to sort out and avoid confusing the two distinct types of issues. For a brief discussion of a few such situations and further discussion of institutional considerations, see Wright, supra note 77, at 708-10 & nn. 380-81.
149. See FINNIS, supra note 3, at 173-75 (discussing some of the relevant comparative criteria).
150. See, e.g., State v. Moe, 24 P.2d 638 (Wash. 1933); London Borough of Southwark v. Williams, 2 All E.R. 175 (CA. 1971).