The primacy of justice

Legal Theory

Volumn 9, Issue 4, 2003, Pages 269-294

  Waldron, Jeremy ^a  

^a Columbia Law School ^*  (United States)

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EID: 84964423431     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325203000120     Document Type: Article

References (60)

1. References to TJ are to John Rawls, A THEORY OF JUSTICE (rev. ed., 1999).
2. Robert Nozick, ANARCHY, STATE AND UTOPIA (1974); Bruce Ackerman, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); Michael Walzer, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY (1983); Ronald Dworkin, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY (2000).
3. One exception is C. Perelman, THE IDEA OF JUSTICE AND THE PROBLEM OF ARGUMENT (John Petrie, trans., 1963), esp. chs. I-III.
4. See W.B. Gallie, Essentially Contested Concepts, 56PROC. ARISTOTELIAN SOC'Y 167 (1955-1956), and Ronald Dworkin, TAKING RIGHTS SERIOUSLY 134-136 (1977).
5. See Ronald Dworkin, LAW'S EMPIRE 74 (1986).
6. H.L.A. Hart, THE CONCEPT OF LAW 158-160 (2nd ed., 1994).
7. Not all demands for treating like cases alike raise questions of justice. People sometimes complain that the Bush administration does not treat like crises alike (in foreign policy); it responds differently to North Korea and to Iraq. These inconsistencies are not issues of justice; see Jeremy Waldron, Does Law Promise Justice, 17 GEORGIA STATE UNIVERSITY LAW REVIEW 759, 777-8 (2001).
8. Aristotle, NICHOMACHEAN ETHICS, bk. V, and POLITICS, bk. III; Plato, THE REPUBLIC, bk. II (369a).
9. See text accompanying note 36.
10. I do not mean to dispute the importance of stability as an element in our thinking about justice. Rawls treats it as very important, suggesting that a set of principles cannot be serious candidates for principles of justice if their tendency would be to undermine the existence of the institutions that are supposed to be implementing them [TJ 154-159, 434-441].
11. For the significance of this condition, see text accompanying notes 23, 40, and 62.
12. I develop this point at length in Waldron, For the significance of this condition, note 7, at 766-72.
13. See Joseph Raz, PRACTICAL REASON AND NORMS 25 (1990).
14. See text accompanying note 33.
15. See text accompanying note 48.
16. T.D. Campbell, Humanity before Justice, 4 BRIT. J. POL. SCI. 4 (1974).
17. Aristotle, NICHOMACHEAN ETHICS, bk. V, ch. 1.
18. For a helpful description of the Gini coefficient as a measure of inequality, see Douglas Rae, EQUALITIES 125ff (1981).
19. See, e.g., Ronald Dworkin, What Is Equality? Part 2: Equality of Resources, 10 PHIL. & PUB. AFF. (1981) 283, at p. 339.
20. Maybe we should also consider distributive aspects other than “who gets what?” The classic formulation is: “Who gets what, when and how?” Harold Lasswell, POLITICS: WHO GETS WHAT, WHEN, AND HOW? (1936). “When?” may be important, along with “Who (in particular)?” as in “Justice delayed is justice denied.” I will return to this when we discuss some futile attempts to mitigate the aggregative character of the economic analysis of law; see text accompanying note 63.
21. See, e.g., Nozick, Maybe we should also consider distributive aspects other than “who gets what?”, note 2, at 149-150: “The term ‘distributive justice’ is not a neutral one. Hearing the term ‘distribution,’ most people presume that some thing or mechanism uses some principle or criterion to give out a supply of things.”
22. Nozick concedes this possibility, Maybe we should also consider distributive aspects other than “who gets what?”, note 2, note 2, at 150: “Some uses of the term ‘distribution,’ it is true, do not imply a previous distributing.”
23. F.A. Hayek, THE MIRAGE OF SOCIAL JUSTICE, 2 LAW, LEGISLATION AND LIBERTY 64-65 (1976).
24. See Raymond Plant, EQUALITY, MARKETS AND THE STATE, Fabian Tract 494 (1984).
25. Nozick, EQUALITY, MARKETS AND THE STATE, Fabian Tract, note 2, at 153-164.
26. Nozick, EQUALITY, MARKETS AND THE STATE, Fabian Tract, note 2, at, note 2, at 154.
27. For distinctions among various senses of “individualism,” see Steven Lukes, INDIVIDUALISM (1973).
28. Joseph Raz, THE MORALITY OF FREEDOM 18, 198-207 (1986).
29. See text accompanying note 16.
30. Some utilitarians resent these criticisms. They say the focus on aggregate outcomes is not a result of lack of concern about distributive matters; rather it is the fairest basis for dealing with the difficult cases where individual interests conflict. Cf. James Griffin, WELL-BEING: ITS MEANING,MEASUREMENT, ANDMORAL IMPORTANCE 168-169 (1986): “[M]erging people's interests into a single moral judgment by maximizing them is a distributive principle. It is a view, right or wrong, about when sacrificing one person for another is justified.” However, as Griffin acknowledges, in the actual use of aggregative measures, the casual blurring or sidelining of the distributive issue is often quite egregious: “It crops up commonly in regarding, as economists often do, an aggregative principle as a principle of ‘efficiency’ and other principles as ones of fairness” (Griffin, at 168). Hence it is often hard to tell whether those who defend the operation of a market economy as “efficient,” intend that to be an evaluation responsive to concerns about its justice. See also note 47.
31. Hobbes, LEVIATHAN, ch. 13.
32. See text accompanying notes 9 and 10.
33. Cf. Isaiah Berlin, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 118 (1969).
34. I believe this is also the way to handle the possibility raised in Avishai Margalit, THEDECENT SOCIETY (1996), that decency is a more important characteristic of a society than justice. But patently there is an important distributive dimension to this; some people may routinely be humiliated in a given society and others not.
35. See text accompanying note 11.
36. There has been intense controversy between liberals and communitarians about the primacy of justice over values related to community in just the way that this second pattern of analysis suggests; see particularly Michael Sandel, LIBERALISM AND THE LIMITS OF JUSTICE (1982).
37. See, e.g., Joseph Raz, Right-Based Moralities, in THEORIES OF RIGHTS 188 (Jeremy Waldron, ed., 1984), for the distinction between noninstrumental and ultimate value. See also Avishai Margalit and Joseph Raz, National Self-Determination, 87 J. PHIL. 439 (1990).
38. For an investigation of this sort into the distribution of the benefits of culture and language understood as primary goods, see Will Kymlicka, LIBERALISM, COMMUNITY AND CULTURE (1989).
39. See Jeremy Waldron, Can Communal Goods be Human Rights? in LIBERAL RIGHTS: COLLECTED PAPERS 1981-1991 (1993) 339, at 354-9.
40. DEEP IMPACT (Zanuck/Brown 1998).
41. Perhaps some utilitarian approaches are not like this. In John C. Harsanyi, Can the Maximin Principle Serve as a Basis for Morality? 69 AM. POL. SCI. REV. 594 (1975), there is an argument to the effect that people in (something like) Rawls's “Original Position” would choose the principle of average utility as their best bet for a society in which they did not know what place they would occupy. If A then receives what the principle of average utility dictates, it is quite plausible to say that he receives this on account of a fact about him-namely, that this is the basis for determining shares that he would have agreed to in the relevant choice situation. Rawls appears to understand average utilitarianism in this way [TJ 139-153]. See also notes 34 and 62.
42. See text accompanying note 17.
43. This does not mean that justice is necessarily comparative in the technical sense defined by Joel Feinberg, Noncomparative Justice, in RIGHTS, JUSTICE AND THE BOUNDS OF LIBERTY: ESSAYS IN SOCIAL PHILOSOPHY (1980). That would be a stricter sense of “comparative” than the one I am using here. Justice is comparative in Feinberg's strict sense, where we have reason to hold that what A ought to get is a function of what B gets. For example, we may be uncertain as to how many years’ punishment A should receive for murder, but we know it should be greater than the sentence that B or anyone receives for assault. What Feinberg would call noncomparative justice is illustrated by a case in which a principle of justice requires that we alleviate great suffering; now, suppose we fail to alleviate A's suffering; still we have a reason to do what we can to alleviate B's. What B ought to get is in no way a function of what A gets (though of course as a matter of consistency it is related to what A ought to have gotten).
44. This helps explain why some theorists suggest that the primacy of justice is relative to the circumstances of justice, such as scarcity of the goods that individuals want. Rawls takes this line [TJ 110], following the argument in David Hume, A TREATISE OF HUMAN NATURE (2nd ed., L.A. Selby-Bigge and P.H. Nidditch, eds., 1978), bk. III, pt. 2, sec. 2: “[I]f nature supplied abundantly all our wants and desires,., the jealousy of interest, which justice supposes, could no longer have place….”
45. See text accompanying footnotes 13-14.
46. Classic exemplars of EAL include R.H. Coase, The Problem of Social Cost, 3 J. LAW & ECON. 1 (1960); Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499 (1961); and Richard A. Posner, THE ECONOMICS OF JUSTICE (1981).
47. Not all scholars in the law and economics movement are insensitive to distributive concerns. Louis Kaplow and Stephen Shavell, FAIRNESS VERSUS WELFARE (2002) argue that all legal rules and decisions should be made on basis of welfare but acknowledge that “view[s] about the proper distribution of well-being” (Kaplow and Shavell, at 26) must be taken into account in designing the social welfare function we use to evaluate legal rules on the basis of their effects on the welfare of large numbers of individuals. See also Jeremy Waldron, Locating Distribution, 32 JOURNAL OF LEGAL STUDIES 277 (2003).
48. See Richard A. Posner, FRONTIERS OF LEGAL THEORY 98 (2001).
49. Coase, FRONTIERS OF LEGAL THEORY, note 52.
50. See, e.g., Lawrence Crocker, Equality, Solidarity, and Rawls’ Maximin, 6 PHIL. & PUB. AFF., 262 (1977); and G.A. Cohen, IF YOU'RE AN EGALITARIAN, HOW COME YOU'RE SO RICH? (2000).
51. Cf. J.R. Hicks, The Rehabilitation of Consumer Surplus, 8 REV. ECON. STUD. 108 (1940). For an excellent discussion, see Richard S. Markovits, A Constructive Critique of the Traditional Definition and Use of the Concept of ‘The Effect of a Choice on Allocative (Economic) Efficiency': Why the Kaldor-Hicks Test, the Coase Theorem, and Virtually All Law-and-Economics Welfare Arguments Are Wrong, U. ILL. L. REV. 485 (1993).
52. All this was pointed out decades ago. See Jules Coleman, The Normative Basis of Economic Analysis: A Critical Review of Richard Posner's THE ECONOMICS OF JUSTICE, 34 STAN. L. REV. 1105 (1982). But the leading advocate of wealth maximization, Richard Posner, has evidently failed to learn the lesson. In his recent writings he is willing to concede that distributive issues such as inequality may pose certain costs of their own-for example, in social stability-which the advocate of wealth maximization would do well to take into account. See Posner, FRONTIERS OF LEGAL THEORY, The Rehabilitation of Consumer Surplus, note 54, at 102. But this is a sort of languid afterthought; it is not a way of taking distributive issues seriously. Such issues are important in themselves and important in regard to respect for individual persons; they are not just something to be factored into a sort of aggregative social pragmatism.
53. See Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication, 8 HOFSTRA L. REV. 487 (1980), at 491-493.
54. This was one of Rawls's responses [TJ 171] to the alleged contractarian case for the principle of average utility: “the pervasive and continuing influence of our initial place in society and of our native endowments, and of the fact that the social order is one system, is what characterizes the problem of justice in the first place. We must not be enticed by mathematically attractive assumptions into pretending that the contingencies of men's social positions and the asymmetries of their situations somehow even out in the end. Rather, we must choose our conception of justice fully recognizing that this is not and cannot be the case.” This is why an emphasis on the basic structure is so important; see text accompanying notes 11, 23, and 40.
55. See text accompanying note 24.
56. Richard A. Posner, Cost-Benefit Analysis: Definition, Justification, and Comment on Conference Papers, 29 J. LEGAL STUD. 1153 (2000), at 1154-1155.
57. See Richard Posner, THE ECONOMIC ANALYSIS OF LAW 327 (1973).
58. See Ronald Dworkin, TAKING RIGHTS SERIOUSLY, THE ECONOMIC ANALYSIS OF LAW, note 4, at 82ff.
59. I think this is what Dworkin is getting at with his distinction between legal principles and legal policies: When a legal principle is at stake, the distributive issue between plaintiff and defendant goes to the very heart of the litigation. See Ronald Dworkin, TAKING RIGHTS SERIOUSLY, TAKING RIGHTS SERIOUSLY, note 4, at 90-100.
60. See Kaplow and Shavell, I think this is what Dworkin is getting at with his distinction between legal principles and legal policies: When a legal principle is at stake, the distributive issue between plaintiff and defendant goes to the very heart of the litigation., note 53, at 33.