Theories of Justice
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JUSTICE – Theories of Justice
Distributive justice
Thomas Aquinas said that a just law was one that served the common good, distributed burdens fairly, promoted religion, and was within the lawmakers authority. However, what are “the common good” and a “fair distribution of burdens” and what is the position of religious values in a secular legal system? Later philosophers have developed the concept of Distributive Justice has produced other theories of justice.
Utilitarianism
Utilitarianism as a theory of justice is based on a principle of utility, approving every action that increases human happiness (by increasing pleasure and/or decreasing pain, those being the two “sovereign masters” of man) and disapproving every action that diminishes it.
A utilitarian view is that justice should seek to create the greatest happiness of the greatest number. A law is just if it results in a net gain in happiness, even at the expense of minorities. The problem here is that minorities may not form part of the “greater number”. This is a particular problem in a pluralist society.
Utilitarianism still plays a major part in the democratic decision-making process; it is a secular theory requiring no reference to any natural rights or other abstract religious principles defensible only by faith. The idea of maximising the total happiness of the community is often applied on a national political level and in ordinary dealings among friends.
In marginal cases, the theory breaks down and produces results far removed from those that most people would consider right. In an Economic Theory of Justice, there is conflict between the views of the individual and the collective view, sometimes referred to as the, social contract. Such conflict can be seen by asking how a doctor with £100,000 to spend should chose between 100 patients with a minor condition; he can treat all of them, or 1 very sick person who would take all his resources. There is no legal requirement that the National Health Service distributes its assets evenly. This can produce results that anger the majority, who respond emotionally; the case of Child B produced national anger, fuelled by newspaper reports. Jaymee Bowen (Child B) has come to epitomise the dilemmas involved in making tragic choices in health care. When 11 year-old Jaymee needed life-saving cancer treatment for the third time, the hospital refused funding in R v Cambridge Heath Authority ex parte B [1995] CA the Court of Appeal upheld the hospitals decision. Medical advice that Jaymee had only a 2.5 per cent chance of survival was basically that the £75,000 it would cost to carry on her treatment would be wasted and could be put to better use for others. An anonymous benefactor stepped in and paid for Jaymee to receive the treatment privately, she died 16 months later. T S Eliot famously remarked, “Human kind cannot take very much reality”.
Harm principle
Jeremy Bentham and John Stuart Mill believed that the law should not interfere with private actions unless they caused harm to others.
JS Mill writing in “On Liberty” said that private acts of immorality increase the pleasure of those who indulge in them and cause little pain to others. Their net effect is to increase the sum of human happiness and laws prohibiting them would be unjust.
JS Mill On Liberty
Bentham Project
The idea that wealth should be distributed evenly denies the possibility that individuals will be stimulated to improve their own income and thereby increasing the wealth available to all. The theory that we all live in a society from which we draw benefits and to which we contribute is called the “social contract”. Bentham said that the “social contract” and its claim to natural rights is “nonsense on stilts” that inhibits desirable social changes.
Bentham might argue that compelling people to have their babies vaccinated using the MMR vaccine, would be morally preferable than leaving such a decision to the discretion of parents because it would drastically reduce the incidence of measles, mumps and rubella (and their horrible consequences) within the population at large.
Liberal-Natural Rights theories
The Liberal-Natural rights view of justice is measured according to the extent minorities and the most vulnerable are protected. It uses a notion of natural rights, the minimum rights to which all are entitled.
What are these basic rights?
Rawls hypothesis of the original position (see below) gives some guidance on what these basic rights are. It can be argued that this simply returns us to the statement that what is just, is what is fair?
Libertarian-market theories
The libertarian-market view holds that any interference in market distribution of benefits and burdens is an unjust restriction on individual freedom, and that justice should only allow limited intervention to prevent unjust enrichment, by which they mean basically theft and fraud and exploitation. What is justice? is as much a political question as a legal or philosophical one.
Marx, Perelman, Nozick, Hart and compensation
In “The Concept of Law”, Hart linked the idea of justice with that of morality. Like cases, he said, should be treated alike. This is a common theme in all theories of justice, which has its origins with Aristotle. Aristotle believed that like should be treated alike and unlike treated accordingly. In this case, Aristotle was referring to people of similar class and status, free men should be treated alike, but not treated the same as slaves. A slave was entitled to be