IV.Theory of Justice
The theory of justice is one of the core elements of the theory and philosophy of law. The foundations of this theory can be found in the thought of antiquity in the work of authors like SOCRATES, ARISTOTLE, and PLATO; philosophers whose ideas are still relevant today. Some important elements of this theory stand out: justice, in the view of these thinkers, is a matter of insight. It is not a matter of subjective, individual preferences, nor is it related to the fulfilment of particular pleasures. Actions are to be regarded as just or unjust, good or evil, independently of whether agents actually think this is so. Their deontic status is not dependent on the whim of human agents. They are simply just or unjust, good or evil, in themselves.
The content of justice is connected to certain principles, including the principle that everybody must be given his or her due, which later found its expression in Roman law.25 The principle of proportional equality is key in understanding why inequality of result may be regarded as just. This is because when proportional equality is maintained between the criterion of distribution and the good distributed, e.g. the grade that a student receives for her work and the quality of this work, this distribution is just even though the results are unequal.26
A controversial issue in this respect is the criterion of distribution. This criterion of distribution varies according to the spheres of distribution.27 For instance, if we consider the example of grading, performance is crucial in the distribution of grades. In other areas, different criteria play a role. Article 12 of the Constitution28 stipulates that need is an important prerequisite for the distribution of at least a basic income that ensures a dignified human life. In other areas, “humanity” is central. This is the case, for example, for the distribution of basic rights in a society; this is usually linked to no other precondition than the humanity of the bearers of such rights.
Since antiquity, justice has been a concept used to evaluate the actions of agents. It has also been the foundation for the construction of societies. In antique thought, questions about democracy, oligarchy, aristocracy, and tyranny were wedded to the question of what constitutes a just order. PLATO’S particular hierarchical vision of a society is certainly not able to command much assent today, but one key question he posed in its canonical form still persists: what are the consequences for the structure of a decent society if it is based on principles of justice?29
Antique thinkers made another important point: they believed that justice and goodness are intrinsically linked to a fulfilled, even happy life. SOCRATES maintained that it is better to suffer injustice than to do injustice, implying that an ethical life is an intrinsic good, more important even than what one may have to endure if one prefers not to inflict injustice.30 This leads to the idea that there is intrinsic value in a legitimate legal order that mirrors an ethical life on the social and institutional level. It seemed to these thinkers, and with good reason, that this too is a vital element of a decent human life.
These questions have been alive through the centuries, circling around various issues formulated in the past. A recent example for such reflection is the theory of JOHN RAWLS: the single most influential theory of justice of the second half of the 20th century. He developed behind the so-called “veil of ignorance” two principles of justice that he thought rational, risk-averse individuals would agree upon, if they were unaware of their particular privileges, talents, and propensities. The first principle is universal freedom. The second principle is that an unequal distribution of material goods can only be justified if: a) the worst-off still profit absolutely, and b) such a system is based on the principle of equal access of everybody to public office. In RAWLS’ theory too, equality is the guiding star of reflections about justice, importantly on two levels: on the level of concrete principles and on the level of the construction of the original position where the imagined agents decide upon the principles. The veil of ignorance is nothing other than an expository device for the basic intuition of human equality, an intuition that is at the core of what justice is about.31
25Corpus Iuris Civilis, Dig. 1.1.10.
26ARISTOTLE, The Nicomachean Ethics, translated by David Ross, edited by Lesley Brown, Oxford New York 2009, n. 1129a et seqq.
27MICHAEL WALZER, The Spheres of Justice, New York 1983.
28Federal Constitution of the Swiss Confederation of 18 April 1999, SR 101; see for an English version of the Constitution www.admin.ch (https://perma.cc/M8UJ-S369).
29See PLATO, Politeia, in Plato in Twelve Volumes, Vol. V and VI, translated by Chris Emlyn-Jones, Cambridge/London 2013.
30PLATO, Gorgias, in Plato in Twelve Volumes, Vol. III, translated by W.R.M. Lamb, Cambridge 1967, n. 469b et seq.
31JOHN RAWLS, A Theory of Justice, Cambridge/London 1971. For an alternative, derived from a discussion of RAWLS, see e.g. AMARTYA SEN, The Idea of Justice, Cambridge 2009.