Justice: Classical & Contemporary Theories

Posted on Dec 2, 2024 in Philosophy and ethics

Justice: A Deep Dive into Legal and Moral Legitimacy

Classical Theories of Justice System Legitimacy

Iusnaturalism

The legitimacy of justice lies in human nature, originating with Aristotle’s concept of man as a political animal.

Scholastic Iusnaturalism

This theory justifies using violence to change a community’s legal order when deemed unfair. Bartolomé de las Casas and Suarez advocated for the universality of laws, applying to all inhabitants of the Spanish Empire, including Native Americans.

Aristotle’s Perspective

All humans are rational, social beings, following natural tendencies like animals. These tendencies manifest as laws and customs. Survival necessitates a ban on killing, reproduction necessitates raising children, and sociability and rationality necessitate rules.

Illustrated Iusnaturalism

Hobbes
  • Human Nature: Violent, aggressive, rational
  • Government: Absolute monarchy
Locke
  • Human Nature: Free, rational, equal
  • Rights: Life, liberty, private property
  • Government: Democracy, liberalism
Rousseau
  • Human Nature: Free and equal
  • Rights: Life and liberty
  • Government: Democracy

Utilitarianism (J. Stuart Mill, J. Bentham)

Justice implies the greatest happiness for the greatest number of people (principle of pleasure).

  • Enlightened Hedonism: Pleasure in intellectual matters.
  • Altruistic Hedonism: Seeking happiness for the majority, not selfishly.
  • Vexant Policy: Happiness through governance, individual freedom with collective responsibility, defending political liberalism (minimal state interference).

Contemporary Theories

Marxist Dialectic

Justice connects the claims of the oppressed class fighting the oppressor class (controlling the means of production). History is a class struggle defending opposing economic interests, ending with the dominant class yielding power to the dominated class.

Positivism (Kelsen, Bobbio)

Law is a social fact, not requiring moral justification. It exists in society and is enforced by a coercive force (the state) with sanctions. All laws must be obeyed, and human rights are rights sanctioned by international treaties, thus considered law.

Problem: If a law is unjust, must we comply? Can we change it? How do we act ethically?

Maximization (Buchanan) (Economic Liberalism)

Principles:

  1. Humans are rational (analyze their interests).
  2. Humans are selfish (want to achieve their goals).
  3. Ethical agreement is impossible.
  4. Agreements on methods optimizing cost-benefit ratios for individual projects are possible.

Economic Liberalism:

  1. Reasonableness in market relations (supply and demand).
  2. Selfishness in maximizing personal gain.

Human Rights in Economic Liberalism:

  1. Social peace allows everyone a good life financially.
  2. Each state develops and enforces its own laws.

Neo-Contractualism (Rawls)

Justice in modern society relates to distributing primary goods (legal rights and material assets). The principle of fairness dictates equal opportunity for primary goods. The “original position” is a state of ignorance where individuals decide the conditions governing social life.

Dialogic Theory (Habermas)

All humans are rational and free. We communicate, argue, and reach agreements (given sufficient information). We freely make agreements for the common good. An ideal community fosters rational agreements through argumentation, without discrimination, allowing free expression of interests. This represents a perfect democracy.

Anamnestic Theories

These theories examine justice as restitution for past harms. Historical progress is not always positive; it often involves barbarism. Restoring victims’ dignity is crucial for societal development and preventing future atrocities. Victims deserve social (economic and social) debt repayment and shared mourning for their suffering.

Critical Human Rights

While 20th-century justice theories are based on human rights, some critiques exist:

  1. Human rights replace religious belief with inherent rights.
  2. Human rights are impractical and thus useless.
  3. Enlightened hedonism (pursuit of intellectual pleasure) is more effective.