Wednesday, July 25, 2012
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.