I have another question from the studio audience today.
[F]rom a desire utilitarian perspective, what is justice? As a theory of value, it seems pretty clear that desire utilitarianism has an answer to that question. I'm just not sure how to approach the question of what, for example, a judge would do in order to make a just decision, or how policy-makers would begin to structure a just law. Are these questions that make sense from a desire utilitarian perspective?
The Value of Justice
The questioner has agreed that desire utilitarianism provides an adequate theory of value. If this is true, then this means that for justice to be good, it has to be something that fulfills good desires (something a person with good desires would promote). Furthermore, the fulfillment of desires is the only type of value that exists.
Furthermore, justice is something that fulfills good desires by definition, the way that ‘useful’ refers to something that fulfills at least some desires by definition. If a set of institutions fails to fulfill the relevant desires, this does not imply that justice is bad. It implies that a particular situation is not just.
Types of Justice
Another set of facts that I want to throw into this analysis is that there are two major families of ‘justice’; retributive justice, and distributive justice.
Retributive justice is concerned with determining and inflicting the appropriate levels of punishment for legitimate crimes. If an individual is punished for something that is not a legitimate crime, is punished too harshly or not harshly enough, or has had his guilt or innocence determined by illegitimate means, then he may rightfully claim to have been treated unjustly.
Distributive justice has to do with the distribution of wealth in a community. Distributive justice can either concern itself with the final distribution of goods and services (who has what)? Or it can concern itself with the rules for acquiring, holding, and transferring property (including labor) from one person to another without regard to the final outcome, as long as the rules are followed.
For one essay, I do not have time to speak to both types of justice, so I will speak to the type alluded to in the question from the studio audience – distributive justice.
History of Justice
In the case of justice, I think that it is useful to understand what justice is by going back to its roots. Besides, I must admit that I like this story because of what it says about putting religious symbols on government property.
Justitas was an ancient Roman goddess, typically depicted as a woman holding a set of scales in her left hand, a sword in her right, and blind folded. Not all ancient depictions take this form. This is actually an image of Justitas that has evolved over time. However, the way it has evolved and what it has evolved into tells us something of the institutions she represents.
The scales mean that we are going to consider all evidence – evidence for and evidence against a proposition. We are not going to make a decision by listening to only one side of the debate. Thus, we realize justice in a court of law where the prosecutor presents her evidence, but the defense has an opportunity to examine and respond to all of it.
President Bush’s military tribunals are inherently unjust because they allow prosecutors to present secret evidence. This is evidence that the defendant is not permitted to see or to respond to. As such, it is the equivalent to putting a weight on one side of the scale, without allowing even the opportunity of considering what weight might be put on the scales against it.
Another feature captured with the scales is the idea that the decision – on which side the greater weight rests – is not determined by the whim of the judge. It is determined by an outside source, something that does not care which side ends up having the greater weight. We capture this element in a system of justice by having the decision be made by an impartial judge and a jury of one’s peers. The judge, being an employee of the state, is not even considered sufficiently unbiased in many cases to make a just decision. The decision is handed over instead to a group of citizens.
The other symbolic representation that we find associated with the statue of Justitas is the blind fold. This represents recognition of the fact that there are certain things that will tend to sway our opinion, but we must work hard to establish institutions that help us to avoid that weakness. We need to make sure that justice is blind to irrelevant facts that might otherwise arouse the passions – facts about race, gender, personal characteristics that are not relevant to an individual’s guilt or innocence (e.g., homosexuality, where homosexuality is not relevant to whether an individual held up a convenience store or not).
It may seem unfair to have a trial where the jury is simply not permitted to see certain pieces of information. It would seem that all information is relevant to a case. However, we know that there are many types of information that may prejudice a jury, causing jurists to reach conclusions that are not justified by the evidence. Before bringing evidence into the court the judge has the power to rule on relevance. There is simply no need to waste time on data that is not relevant, or to risk that it might prejudice the opinion of a juror who mistakenly sees relevance where none exists.
These are some elements in what we find to be a standard system of retributive justice. How is it that these things come to have value? More specifically, how is it that they come to have moral value?
They come to have moral value in the way that all things have moral value; they are things that a person with good desires would love, where good desires are desires that tend to fulfill other desires. A good person values a fair trial – a trial in which the defendant has the opportunity to tell his side of the story, where the verdict is rendered by an impartial jury, and with a procedure that makes sure to confine the case to relevant evidence. A good person would insist on a trial like this because such a trial is most likely to fulfill the more and the stronger of all desires.
Here, I want to bring into the discussion the difference between rule and desire utilitarianism. The rule utilitarian would have us take these principles of justice as a set of rules that, if followed, would tend to maximize utility. The rules have no value in their own right. They do not identify principles of intrinsic worth. They are rules that we adopt merely because they are useful
They are rules that we can throw out the instant they cease to be useful. The instant a political leader deems it useful to throw out the concepts of a fair trial, he may do so. The rules, after all, exist only to serve the public good, and can be tossed as soon as one believes that tossing them will serve the public good.
However, to the desire utilitarian, these are not just rules. When a principle of justice becomes the object of a desire – of a passion – then it is no longer merely a means to some end. The rules become ends in themselves. They become an object of passion such that, when we measure the utility of a mere rule, its utility is measured by its ability to bring about trials in which the accused is able to confront the evidence against him, the trial is heard by an impartial jury, the accused is presumed innocent, and the burden of proof is on those who would inflict harm rather than on those who would be harmed.
Correspondingly, when the principles of justice have become objects of desire, then the agent will view those things that threaten these principles as he would those things that would cause him personal pain or do harm to a person that he loves. In fact, there is an important similarity between the love that the agent may have for his child and the love he might have for one of these principles. In both cases, he protects the principle or the child not merely because the principle or child is useful, but because the principle or child is something he wants to protect and defend.
Desire utilitarians do not ask whether the principle itself is useful in this or that instance. The desire utilitarian asks about the usefulness of the love for the principle. ‘Justice’ itself are those principles, to be used in determining guilt or innocence and the appropriate levels of punishment, that people generally have reason to encourage their neighbors, not only to follow, but to love, and to protect, and to nurture.
These are the questions that make sense from a desire utilitarian perspective.