Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, July 25, 2012

Finnis on Justice

In a summer reading group in legal and political theory, my colleague Michelle Dempsey led us in a discussion of a paper by John Gardner on John Finnis on justice, which will appear in a festschrift for Finnis (co-edited by our own Robby George). Among the insights of the paper was a point brought home to me when reading Aquinas with students earlier this summer about the contrast between justice as primarily a moral virtue of persons and justice as a virtue of political institutions--the contrast between the way Aquinas works out his view of justice in the Secunda Secundae and the view taken by John Rawls at the outset of A Theory of Justice. Here's a bit from the conclusion to Gardner's paper:

Finnis stands up for the classical view that questions of justice arise first and foremost for each of us as ordinary moral agents, and only derivatively for political authorities and the like. Thus, contra Rawls, the question of what makes ‘social institutions’ just cannot be tackled without first tackling the question of what would make you or me just.

....

And yet, as Finnis also says, there may be a special connection between justice and the law, such that justice may strike us as the first virtue of the law, even though it strikes us as only one virtue among many for you and me, and perhaps not the one that we would most treasure among our friends and colleagues and travel agents and so forth. Why is a government department responsible for the workings of the legal system often called a ‘ministry of justice’? Why are law courts sometimes known as ‘courts of justice’? Why is legislation aimed at reform of the criminal process sometimes called a ‘criminal justice act’? Why not, for example, a ministry of kindness or a court of honesty or a criminal diligence act? Here is a good answer from Finnis:

[W]hether the subject-matter of [an] act of adjudication be a problem of distributive or commutative justice, the act of adjudication itself is always a matter for distributive justice. For 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.

The point is that the bringing of a moral question before the courts is a way of guaranteeing its transformation into a question of justice even if there would, outside the courts, have been plenty of other (non-allocative) ways to approach it. If that is right, then we want our judges to be just people above all, even though we would not want our doctors or our social workers or our airline pilots, let alone our friends, to be just above all. I have explored this topic in considerable detail elsewhere, without  at the time acknowledging, because without  at  the time being aware of, my debt to Finnis. His is a way of explaining, without condoning, the late twentieth-century tendency to think of justice as a topic for political and legal philosophers rather than for other moral philosophers. It allows us to see why Rawls began where he did, without agreeing that it was the best way to begin. For one may be led to imagine that justice is the first virtue of social institutions in general by taking an overly juridical view of social institutions, by thinking of society as a big law court and the rest of us as parties litigating for our fair shares of some social booty. Finnis does not make this mistake. But he certainly does help us to see how others come to do so.

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The “mistake” Finnis avoids could likewise be said to have been avoided by others outside the Catholic tradition: by both Muslim thinkers and a Marxist philosopher, for example, as we shall see.

It would be interesting to compare this with the notion of justice in the Islamic tradition[1] (recalling Aquinas’s enormous debts to same), in particular its conceptions of “philosophical” and “ethical” justice, especially the latter, in which justice is also about each of us as moral agents. While it is true, in a profound sense, that is, theologically, metaphysically or ontologically, and psychologically speaking, that such justice has priority, in more practical terms it might not be helpful to think of it as “first and foremost" insofar as justice applies, from the outside looking in as it were (and thus not from the subjective standpoint of the individual), simultaneously to the person and the polity to which he or she belongs. Muslims in turn are in debt to Aristotle (and in similar and other respects to Plato as well) insofar as they agreed with him that justice is “the greatest of virtues…and in it every virtue is comprehended,” although they believe the highest virtues are “implied in Revelation.” Most writers in the tradition have attempted, as Majid Khadduri[2] points out, to correlate Divine and human justice. Khadduri also reminds us that “thinkers like Miskawayh and Rāzī”…. “made it clear that ethical justice was not merely a set of religious and legal duties but also moral obligations or dispositions toward good and evil, which men ought to undertake were he to pursue justice in accordance with an ethical standard.” With Abu Hāmid al-Ghazzālī we see the theological, metaphysical, and ethical justice accorded priority insofar as the power of reason implanted in man by God is connected to a divine “light” (nūr) as a form of spiritual intuition (and thus with Platonic and neo-Platonic overtones) worked on by reason so as to guide man along the path of truth and justice. This divine intuition means, or is equivalent to, access to divine wisdom, which in turn is enshrined in traditional and spiritual virtues. So, while ethical justice “is an expression of ethical virtues…it is ultimately derived from divine justice.” As to the primary virtues, they reflect the influence of classical Greek philosophy, and thus include wisdom (while divine in origin, is much like the practical wisdom of Aristotle), courage, temperance, and justice (al-‘adl) itself, which is defined as “the whole of the virtues.”

The lamentably late G.A. (‘Jerry’) Cohen (a Marxist philosopher) had an interesting critique of Rawls’s theory of justice insofar as the former argued that “principles that reflect facts reflect principles that don’t reflect facts,” and Rawls failed to appreciate the fundamental importance of the last, that is, “fact-free principles,” described by Cohen as “meta-ethical” but which we might also fairly describe as metaphysical. Rawls strove hard to avoid Kantian metaphysical principles or questions of metaphysical truth or moral realism that would have rescued his “constructivism” from charges of relativism (at least inasmuch as his concept of person(s) is the product of a particular culture and thus eschews the Kantian metaphysical conceptions of the liberty and equality of moral persons),[3] and perhaps precluded or prevented its characterization as an “implicitly statist” (rather than, as with Kant, ‘cosmopolitan’) moral and political philosophy. As Onora O’Neill has explained, the “Kantian constructivism” of the former work “identified the reasonable with the public reason of fellow citizens in a given, bounded, democratic society [i.e., like ‘ours’].”

Cohen argues that Rawls failed to appreciate the distinction between “fact-free principles” and “adopted rules of regulation” (the latter dependent in part on facts), and thus his constructivism is not a “meta-theory [or metaphysical, for that matter] theory of justice: Rawls “misidentifies the question ‘What is justice?’ with the question ‘What principles should we adopt to regulate our affairs?’” Muslim theologians and philosophers, as well as Aquinas and now Finnis, can likewise appreciate this misidentification. In effect, and in personal terms, it amounts to a failure to appreciate the difference between deliberating or contemplating what to do and thinking about what is the right rule (or what are the right rules) to adopt, between rules of regulation and the principles that justify them, or between optimal rules of social regulation and fundamental (normative) principles of justice, the latter having a far wider scope in practice than justice as a virtue of political institutions. The fundmental principles of justice, unlike the rules of regulation, could not in any real sense said to be “adopted,” for they “represent,” in Cohen’s words, “our convictions,” and these convictions of course are those of individual men and women (in which case, the fundamental principles of justice might depend, as Cohen concedes but does not agree, on basic facts of human nature, or simply a conception of human nature). Cohen, writes revealingly that he “agree[s] with the Socratic-Platonic view that led Socrates to reject illustrations of, for example, just behavior as providing a proper answer to the question “What is justice?”: no list of examples reveals what it is about the examples that makes each an example of justice,” or justice as such. The Humean concern with the “circumstances of justice,” ostensibly central to the Rawlsian view, asks “Under what circumstances [or conditions] is (the achievement of) justice possible and/or necessary?” As Cohen makes clear, the answer to the question “What is justice?” is prior to the Humean concern with the circumstances of justice, and that Hume himself understood justice, “in its primary application, [as] a virtue of persons,” not in the first instance as a virtue of the basic structure of society.

[1] I have a very basic introduction to justice in the Islamic tradition here: http://www.religiousleftlaw.com/2010/09/islam-justice-propaedeutic.html

[2] Majid Khadduri, The Islamic Conception of Justice (Baltimore, MD: Johns Hopkins University Press, 1984)

[3] See the Platonically-inspired critique in T.K. Seung’s Intuition and Construction: The Foundation of Normative Theory (New Haven, CT: Yale University Press, 1993). It remains an open question, I think, as to whether or not Rawls, in the end, is a “relativist” of sorts or even “cosmpolitan.” I broached this interpretive controversy here: http://ratiojuris.blogspot.com/2010/12/liberalism-keynesian-cold-war.html

Posted by: Patrick S. O'Donnell | Jul 26, 2012 4:05:41 AM

erratum (last note): cosmopolitan

Posted by: Patrick S. O'Donnell | Jul 26, 2012 4:15:16 AM

By the way, I think it would be seriously misleading if not a bit mean-spirited to claim or insinuate that Rawls himself “[thought] of society as a big law court and the rest of us as parties litigating for our fair shares of some social booty."

Posted by: Patrick S. O'Donnell | Jul 26, 2012 8:53:18 AM

"I am the Alpha, and the Omega." - Jesus, The Christ, The Truth of Love.

Love is the most important virtue because all that is virtuous stems from Love. In order to mirror justice, one must reflect Love.

Posted by: N.D. | Jul 26, 2012 11:52:01 AM

N.D., Your comments are (typically) nothing if not consistent, predictable, and single-minded. Alas, over time they take on something of the rigidity of Reichian character armor.

Posted by: Patrick S. O'Donnell | Jul 26, 2012 1:32:10 PM

Patrick, with all due respect, how often are we like straw against the wind, when in seeking justice, we do not begin with Love?

Posted by: N.D. | Jul 26, 2012 3:45:05 PM

This exchange should be preserved for posterity.

Posted by: Mike | Jul 26, 2012 7:54:29 PM