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WHAT IS CIRCUMSTANTIAL ABOUT JUSTICE?

Published online by Cambridge University Press:  07 December 2016

David Estlund
David Estlund*
Affiliation:
Philosophy, Brown University
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Abstract:

Does social justice lose all application in the (imaginary, of course) condition in which people are morally flawless? The answer, I will argue, is that it does not — justice might still have application. This is one lesson of my broader thesis in this paper, that there is a variety of conditions we would all regard as highly idealistic and unrealistic which are, nevertheless, not beyond justice. The idea of “circumstances of justice” developed especially by Hume and Rawls may seem to point in a more realistic direction, but we can see that this is not so once we distinguish between conditions of need for norms of justice, conditions of their emergence, and conditions of applicability of the standard of justice. Justice, I argue, can have application even in conditions where no mechanism of justice is present or needed, such as the case of internalized motives of justice.

Keywords

Rawlsideal theoryjusticenormsHume
Type
Research Article
Information
Social Philosophy and Policy , Volume 33 , Issue 1-2 , Fall 2016 , pp. 292 - 311
Copyright
Copyright © Social Philosophy and Policy Foundation 2016 

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References

1 Jacob Levy compactly expresses the contrary view in “There Is No Such Thing as Ideal Theory,” (present volume) where he writes, “If we could stipulate full compliance with moral rules however demanding, then there is no reason not to stipulate better virtues than justice and a morally good enough humanity not to need a coercive state at all.”

2 This would not yet address whether the higher, more idealistic cases are more truly or purely the proper context for the standard of full justice. I present some considerations in favor of that further claim in “Prime Justice,” in Political Utopias, ed. Kevin Vallier (Oxford University Press, forthcoming).

3 This is not to be confused with the plethora of other common uses of “an ideal,” “idealism,” “ideal theory,” and so on. In particular, it is now common to distinguish between idealizing in the manner of simplification for theoretical purposes, and ideals or idealism in the sense of high evaluative standards. See, for example, Stemplowska and Swift, “Ideal and Nonideal Theory,” in David Estlund, ed., The Oxford Handbook of Political Philosophy (Oxford: Oxford University Press, 2012). See also Jenann Ismael’s deployment of a similar distinction to compare idealization in science and in political philosophy, in “A Philosopher of Science Looks at Idealization in Political Theory,” (present volume).

4 “Realism” is already in use and would be confusing here. However, self-described political realists seem likely to accept what I call the anti-idealist position. See Rossi, Enzo and Sleat, Matt, “Realism in Normative Political Theory,” Philosophy Compass 9, no. 10 (2014): 689–701.CrossRefGoogle Scholar

5 Hume’s account focuses on property. I drop that restriction here, as do Rawls and many others. I will speak generally of the task of adjudication of conflicts between individuals’ aims and convictions. As for whether the justice-triggering conditions are sad or unfortunate, it is impossible to read Hume’s opening to Section III of An Enquiry Concerning The Principles of Morals (1777) (any edition), in any other way.

6 For more on these ideas, see the articles “Justice as a Virtue,” (by Mark LeBar and Michael Slote), and “Retributive Justice,” (by Alec Walen) in the Stanford Encyclopedia of Philosophy, ed., Edward N. Zalta, (plato.stanford.edu).

7 There is nothing hostile to Hume in this abstract idea of a standard, for what it’s worth. “. . . [T]he true perfection of any thing consists in its conformity to its standard” (David Hume, A Treatise of Human Nature [1738], 1.2.4); and “. . . we seek some other standard of merit and demerit, which may not admit of so great variation” (Hume, Treatise. 3.3.1); and “. . . [they] are alone admitted in speculation as the standard of virtue and morality. They alone produce that particular feeling or sentiment, on which moral distinctions depend” (Hume, Treatise, 3.3.1, emphasis added).

8 See also Rawls, John, A Theory of Justice, rev. ed. (Cambridge, MA: Belknap Press, 1999):Google Scholar “Unless these circumstances existed there would be no occasion for the virtue of justice, just as in the absence of threats of injury to life and limb there would be no occasion for physical courage (sec. 22, p. 128). For a little fuller discussion of ways in which certain things fall in or outside of the applicability of (as she puts it) a predicate, see Chang, Ruth, “Introduction,” in Chang, Ruth, ed., Incommensurability, Incomparability, and Practical Reason (Cambridge, MA: Harvard University Press, 1997), 28.Google Scholar What’s true of all predicates is true of moral predicates such as “just.”

9 Some standards are essentially reciprocal, but not all.

10 Hume, Treatise, 3.2.2

11 I do not call them “coordinated” norms, since that might distract us toward some question about who is the coordinator. That is no part of our question, and there need not be a coordinator.

12 The cases of rules and conventions might well involve a measure of moral motivation as well. What is distinctive of the case I call “moral motives” is that the coordinate behavior is not a product either of threatened sanctions or an expectation of reciprocal behavior by others.

13 Hume, Treatise, 3.2.2.

14 Kavka, Gregory S., “Why Even Morally Perfect People Would Need Government,” Social Philosophy and Policy 12, no. 1 (1995): 1–18,CrossRefGoogle Scholar citing Madison’s famous dictum.

15 Something like this idea seems to be behind Hart’s discussion of the minimal content of natural law, as a content common to all suitable “systems of mutual forbearance.” See Hart, The Concept of Law, 195.

16 Rawls, Theory of Justice, sec. 22, 112. The existence of such a standard of eligible arrangements is not itself enough to guarantee that there is any act that is either forbidden or permitted in all such arrangements, so it is not enough by itself to count any actions as just or unjust.

17 It is worth considering whether once we are post-specification, the standard so-specified can be applied retroactively to pre-specification conditions. For now I see advantages and disadvantages of each answer. Rachel Cohon says that according to Hume, “We approve [the artificial virtues] in all times and places . . .” (Rachel Cohon, “Hume’s Moral Philosophy,” http://plato.stanford.edu/archives/fall2010/entries/hume-moral).

18 The general line here is similar to and indebted to the ideas of Barry, Brian, A Treatise of Social Justice, Vol. 1: Theories of Justice (Berkeley: University of California Press, 1989)Google Scholar and Cohen, G. A., Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008).CrossRefGoogle Scholar

19 Hume and Rawls focus mostly on conflicts of interest, but Rawls writes, “A lack of unanimity is part of the circumstances of justice, since disagreement is bound to exist even among honest men who desire to follow much the same political principles” (Rawls, Theory of Justice, sec. 36, 196).

20 Ibid., 126, emphasis added.

21 Ibid., 130.

22 Michael Sandel argued, as against Rawls, that justice is a virtue only in the presence of the vice of selfishness. Sandel, Michael, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982).Google Scholar Andrew Lister discusses replies to Sandel’s argument, and notes the ancient argument, voiced by Glaucon in Plato’s Republic book II that justice arises “as a pact for mutual protection between equals unable consistently to dominate each other.” See Andrew Lister, “Hume and Rawls on the Circumstances and Priority of Justice,” History of Political Thought 26, no. 4 (2005): 664–95.

23 As I understand Hume, “selfishness” cannot be seen as a moral defect for which justice might be the remedy. Our “natural” moral ideas prior to the invention of justice, would contemplate a due partiality with pleasure. “ . . . [O]ur natural uncultivated ideas of morality, instead of providing a remedy for the partiality of our affections [“to ourselves,” and “to our relations and acquaintance”] do rather conform themselves to that partiality, and give it an additional force and influence” (Treatise, 3.2.2).

24 Hobbes, Leviathan, chap. 13 (any edition).

25 Rawls, Theory of Justice, 127.

26 John Rawls, Political Liberalism (New York: Columbia University Press, 1993), esp. pp. 54ff.

27 Rawls, Theory of Justice, 129–30.

28 Like any predicate. See Chang, Incommensurability, Incomparability, and Practical Reason, “Introduction.”