Renae Erichsen-Teal

The belief that society cannot function without justice is universal.  The reason governments are formed is because the people want justice.  They want criminals held accountable, honor rewarded, protection to carry out their daily lives and trades, and the list goes on.  The ability of the other virtues to thrive in a society depends on the presence of justice to protect them.  The need for justice is little disputed among thinkers as the most necessary virtue for a functional society, but the question of what the basis of justice is and what constitutes real justice is a much more difficult question to answer.  Justice cannot protect the other virtues without finding its basis in them.  In order to protect the other virtues, it is imperative that justice itself be based on a code of virtue or morality as well.  Justice is the best virtue for society, because it has to be based upon virtue in order to protect the other virtues.  It cannot be true justice if it is pursuit of anything other than virtue.

In modern thought, it is very common to come across the idea that the goal of justice is to promote individual freedom and the individual’s choice to determine their set of morals.  But, in classical thought and among the conservative minority, the goal of justice is to promote a certain kind of virtue or morality.  The notion that justice and morality are inherently tied together and co-dependent is a very unpopular notion in society today.  But for any real kind of justice to exist, it must be based on virtue, not individual freedom.  Justice is the most necessary virtue for society, because it takes into account the other virtues by both defending them and having its basis in them in order to defend them.

Thinkers from Plato to Rawls agree that justice is the highest pursuit of law and fundamental for civil society.  Plato argues that “the most essential ingredient in colonizing the city ‘is justice’” (Bell 2007, 15).  Aristotle reiterated this, saying, “Any polis which is truly so called, and is not merely one in name, must devote itself to the end of encouraging goodness” (Sandel 2009, 193).  To Aristotle, pursuing goodness was pursuing justice.  He goes on to say that pursuing justice means pursuing “a rule of life such as will make the members of a polis good and just” (Sandel 2009, 193).  Another early philosopher, Aeschylus, believed justice is a civil order, and when the community pursues justice, it is the birth of civil society (Bell 2007, 15).  Thousands of years later, philosophers still held to the principle of the necessity of founding a society on justice.  During the Enlightenment, Rousseau’s goal was a more just society in his explanation of the social contract (Rousseau 1997).  And from our very own century, the political theorist John Rawls states succinctly that “Justice is the first virtue of social institutions, as truth is of systems of thought” (Rawls 1971, 3).  From the beginnings of Western Civilization to its modern manifestation, justice has been viewed as the most fundamental virtue for a functioning society.

However, although thinkers throughout the ages have agreed on that point, there exists a fundamental dispute about the nature of justice and its ultimate goal.  Classically, it was believed the purpose of justice was to pursue virtue, having its basis in virtue.  Aristotle saw justice in a teleological light.  In other words, in order to define which social practices are acceptable and our response to them, we must “figure out the telos (the purpose, end, or essential nature) of the social practice in question” (Sandel 2009, 186).  If justice as a social practice is essentially honorific in nature, as Aristotle believed, then to reason about justice is “to reason or argue about what virtues it should honor and reward” (Sandel 2009, 186).  To Aristotle, justice meant giving people what they deserve.  And to do that, a society must argue and reason about the inherent morality and virtue of actions and social practices in order to fairly reward each action according to its merit.  Sandel summarizes this idea well, saying,

Aristotle teaches that justice means giving people what they deserve.  And in order to determine who deserves what, we have to determine what virtues are worthy of honor and reward.  Aristotle maintains that we can’t figure out what a just constitution is without first reflecting on the most desirable way of life.

(Sandel 2009, 9)

However, since the Enlightenment, there has been a shift in thought about the role of justice.  The view of justice shifted from a teleological focus to a deontological focus.  It shifted away from understanding the essential nature and purpose of justice as seeking virtue, to a focus of serving human rights and freedom as the ultimate good.  A deontological view of justice is based on the individual actions and will rather than the purpose of those actions within the framework of striving for virtue (Sandel 1982).  “On the Kantian view, the priority of right is both moral and foundational.  It is grounded in the concept of a subject given prior to its ends, a concept held indispensable to our understanding ourselves as freely choosing, autonomous beings” (Sandel 1982, 9).  To deontologists, like Kant and Rawls, justice exists to serve individual freedom and rights — the deontologist’s ultimate virtue — not morality or virtue itself.  “In its foundational sense, deontology opposes teleology; it describes a form of justification in which first principles are derived in a way that does not presuppose any final human purposes or ends, nor any determinate conception of the human good” (Sandel 1982, 3).

Because modern political thinkers believe the goal of justice is individual freedom, they consequently believe setting up a code of virtue is dangerous because it would limit the individual’s freedom to choose his own version of morality.

Modern philosophers…argue that the principles of justice that define our rights should not rest on any particular conception of virtue, or of the best way to live.  Instead, a just society respects each person’s freedom to choose his or her own conception of the good life.

(Sandel 2009, 9)

They believe the government should have a morally neutral stance on political issues and rights.

Modern theories of justice try to separate questions of fairness and rights from arguments about honor, virtue, and moral desert.  They seek principles of justice that are neutral among ends, and enable people to choose and pursue their ends for themselves.

(Sandel 2009, 187)

If one set of morals is placed above another, then that limits a person’s free choice to find the best way of life for him or herself.  As Sandel puts it, “[y]ou might say that ancient theories of justice start with virtue, while modern theories start with freedom” (Sandel 2009, 9).

The modern view is enticing and very much in line with our push toward individual freedom and rights, but in the end makes for a very weak idea of justice.  One of its main problems is that it fails to take into account the fact that we have an inherent sense of duty, shame, and honor towards both our families and larger community.

If we are freely choosing, independent selves, unbound by moral ties antecedent to choice, then we need a framework of rights that is neutral among ends….  If deliberating about my good involves reflecting on the good of those communities with which my identity is bound, then our aspiration to neutrality may be mistaken.

(Sandel 2009, 242)

Our actions do affect the larger community around us.  That is why we feel shame when a family member commits a crime.  That is why we are embarrassed in a foreign country when we observe a group of particularly rowdy Americans giving America a bad name.  We personally did not commit or condone their actions, but know inherently that their choices will reflect on us as a community (Sandel 2009).  Justice based on freedom

fails to capture those loyalties and responsibilities whose moral force consists partly in the fact that living by them is inseparable from understanding ourselves as the particular person we are as members of this family or notion or people; as bearers of that history; as citizens of this republic.

(Sandel 2009, 224)

Another flaw is that justice is cheapened because “law becomes a mere covenant…‘a guarantor of men’s rights against on another’” (Sandel 2009, 193).  Injustice will result from one individual’s justice violating another individual’s justice.  The loss of a coherent code of morality will result in an incoherent and pandering code of justice.

Finally, the biggest downfall of the individualistic view of justice is its denial that justice is inherently tied to virtue.  It claims that justice must be neutral toward morality to be truly just, but in reality the individualistic view only “affirms individualistic values while pretending to a neutrality which can never be achieved” (Sandel 1982, 12).  When judging a case, there is always a sense of moral principle in question, whether we want it to be there or not (Bork; Sandel 2009).  This is most clearly illustrated in the case of abortion.  Supporters of abortion defend it by claiming it is a right of the parent — it is their choice, and the government should remain neutral over the morality of the issue.  Pro-life proponents claim the fetus is morally equivalent to a human, so the freedom of the parent to choose does not matter.  Pro-choice advocates attempt to separate the moral question of the humanity of the fetus from the question of the justice of the action to achieve their individualistic value.  But the focus of the debate should be over the morality of the action.  If the fetus is morally equivalent to a human, then abortion would be morally equivalent to infanticide.  And no one in their right mind would say that the government should support infanticide for the sake of supporting the individual freedom of the parent (Sandel 2009).  It is not enough to debate about rights.  The true justice of an action will not be found if the virtue of the action is not decided upon.

And that brings us back to the point that just as the other virtues need justice to thrive, true justice cannot exist without being based upon a code of virtue itself.  Basing justice upon individual freedom attempts to avoid the moral question of an action, but that is exactly what has to be debated in order to reach justice.  When debating issues, we are never merely debating about rights and freedom.  In every issue, it is always a debate over the telos of a social practice and what individuals deserve based on their use of that social practice.  When debating gay rights, the controversy isn’t over freedom, but the telos of marriage: whether marriage is merely for personal satisfaction and love, or the honoring of God, creation of offspring, and stability of society, along with personal enjoyment.  If it were merely over freedom, then of course people would agree that freedom to choose your partner in life is the just choice.  But basing the debate on freedom glosses over the real debate — the telos of the institution and what people deserve based on their actions in support of or resistance to the institution’s telos or ultimate purpose (Sandel 2009).

Separating virtue from justice completely empties justice of meaning.  Justice cannot enforce virtue if it cannot choose a virtue to defend.  If a fetus is a human, justice cannot defend that person if it will not stand by the virtue that life is sacred over the idea of individual freedom.  A just ruling cannot be made on gay marriage if the telos of marriage is not debated and decided upon, or what the resulting actions of individuals deserve according to that decision.  Justice based on virtue will limit the freedom of some, but freedom is not the most important value in society — justice is.  Rewarding people according to what they deserve (the virtue of their action) is more important to society than individual freedom.  Justice ensures that other virtues are present in society and can be safely and effectively lived out.  But if justice and virtue are alienated, justice cannot protect virtue.  It must be based on virtue and stand by the side of virtue to protect virtue.  Justice is the most important virtue in a functioning society because it preserves and enables the other virtues to exist in society through finding its basis in virtue.

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