Just recently I watched a talk, given at Gresham College, by Professor Melissa Lane on Ancient Greek Ideas of Justice. It took me back to over a decade ago when I was thinking about the nature of justice. This had been triggered by a series of events in the Arab states, which signalled what might have been a new era for the Islamic world. Sadly, it was not to be, and the absolutism and fragmentation that results in chaos and violence that has permeated so many Arabic-speaking societies not only persists today but seems to have increased.
It is now thirteen years since the so-called 'Arab Spring’ took place. The name came to describe a series of revolutionary actions, demonstrations and protests across many Arab states. Although the 'Spring' in the phrase refers to events in 2011, the first protests began in December 2010 after the self-immolation of Mohamed Bouazizi, a Tunisian street trader, who had problems gaining a licence for his street stall. He was protesting at political corruption and police brutality. He felt so pushed to the limit that he was prepared to take his own life. His death sparked off demonstrations across Tunisia, which eventually toppled the government of the President of Tunisia, Zine El Abidine Ben Alii.
The events in Tunisia then stimulated a wave of protests across the Arab world. Unrest occurred in, at least, 17 Arab countries and in some cases, like Tunisia and Egypt, led to regime change and even to civil war, as happened in Libya. Numerous factors, along with government corruption, have been cited as causes for these protests: such as human rights violations, economic hardship (including extreme poverty), youth unemployment, demographic change (rising literacy and a shrinking birth rate), the repression of political dictatorship and absolute autocracy. There was, clearly, a set of complex causes for this unrest, but I think it can be argued that a fundamental motivation behind the protests was a profound sense of injustice, which became heightened and encouraged amongst the people by modern means of communication, such as the internet, social networking, as well as the harsh reaction of those in power to any form of dissension. This sense of injustice led to outrage and, in turn, was followed by action in the form of street demonstrations and violence.
There is an endemic need for humanity to have justice: it seems without established principles of justice, societies struggle with disorder and conflict. So what does 'justice' mean? The word is derived from the Latin ius which means law, or a right. Justice is the system of law and has come by extension to mean fairness in the way people are dealt with. Aristotle, the Greek philosopher of the 4th century BCE linked the term to the concept of 'a good life'. Aristotle used the word eudaimonia to indicate the happiness generated in a life of virtue, along with phronesis, which can be described as practical wisdom. So his idea of the good life – was a life lived in virtue. These days we tend to think of a 'good life', as the life an individual would like to live, based upon happiness, as well as much as on ethical behaviour.
A sense of injustice, I would argue, is inextricably linked to moral issues of how people should be treated in society. It is not only about how individuals should behave towards each other but it is also about what should be 'the law of the land' and how governments respond to the grievances of their people. These thoughts led me to the inspirational American philosopher, Michael Sandel, whose Harvard lecture programme on Justice became something of a phenomenon. Each year over a thousand students would sign up for his interactive course, which blended philosophical insights with a relaxed environment and accessibility that enthralled his audience.
In 2009 Michael Sandel delivered the Reith Lectures for the BBC, entitled, A New Citizenship, to an overwhelmingly positive response. In 2010 the BBC in collaboration with the Open University broadcast a series of his Harvard lectures. He has published these lectures in a book, under the title, Justice; What's the Right Thing to do? Michael Sandel argues there are three main moral concerns about justice:
• Welfare/distribution of wealth
• Freedom/liberty of individuals
• Virtue/moral code of society
Welfare relates to the health, happiness, prosperity and, generally, the well-being of people (and has come to mean aid, financial and otherwise, provided by government to people in need). Economic prosperity has become a key factor in contributing to people's welfare.
The second, Freedom has taken on a broad range of meanings but essentially refers to the condition of being free of constraints and the arbitrary exercise of authority, granting the individual free speech and movement.
Virtue is described in terms of moral excellence and righteousness, which is often perceived through a religious law.
Whilst philosophers, through the ages, have recognised the equation between justice and welfare and freedom, there are differing opinions as to whether a just society should seek to promote virtue amongst its citizens. Michael Sandel explores these concerns in his book concerning the various philosophical models that have emerged over the centuries starting with Aristotle (388 -322BC), right up to the present day. He examines the Utilitarianism of Jeremy Bentham (1748 –1832), the belief of Emmanuel Kant (1724 –1804) in the justice of pure reason, the concerns of John Stuart Mill (1806 1873) with justice and liberty, concluding with the egalitarian theory of justice of John Rawls (1921-2002).
A constant problem for philosophers, in their theorising about systems of justice, is the association of legislation with particular moral codes (which prescribe the good life). Aristotle argued that justice cannot be divorced from society’s understanding of the good life or as he perceived it, a life of ‘virtue’; put in another way: the state in its legislation cannot be neutral but has to determine what constitutes the good life and instruct its citizens in those values. The issue with such a position is that, if virtue (the good life) is legislated for by the state, it not only often becomes culturally specific (which is limiting) but can also depend upon narrow interpretations of morals and legality, imposed by dictatorial, totalitarian or theocratic regimes.
Such narrow interpretations of virtue (correct behaviour) concerning justice can lead to the persecution of minorities. To give just one example, in Pakistan, there is a set of blasphemy laws, which, ostensibly, are there to protect Islam from insult but are also used to persecute minority populations. In 2009 Asia Bibi, a 46-year-old Christian woman, was arrested under the law for blasphemy. It was alleged by fellow villagers that she had insulted the Prophet Mohammed. She is now in prison on death row, awaiting execution by strangulation. In January 2011 the Governor of Punjab, Salman Taseer, was assassinated for declaring his opposition to the blasphemy laws. He was shot 24 times by one of his security detail (who has subsequently become a hero of radical Muslims in Pakistan)vi. In a growing atmosphere of anti-Christian feelings, later, in March 2011, the Minister for Minority Affairs, the only Christian in the Pakistani Government, Shahbaz Bhatti, was murdered. In September 2011 Salman Taseer’s son was kidnapped by Islamic militants. He was drugged, beaten, his fingernails pulled out and his mouth sown up. He was rescued on 8 March 2016. This shocking violence was the consequence of his father’s opposition to the blasphemy laws in Pakistan.
It is, of course, inevitable with different cultures and religions influencing any state's legislation that there will be strong disagreements in society about what is just. Although the risks to life are not always as profound as the examples I have just given, all nations wrestle with issues of justice. Life in democratic states is rife with disagreements over what is right or wrong, what is just or unjust. You only have to think of some issues close to home at the moment:
• Abortion
• Assisted suicide
• Same-sex marriage
• Gender identity
• Equal opportunities
• Torture
• Pay differentials
This last issue is a constant when trying to evaluate the worth of different roles in society: for example, the huge financial differences between the pay of professional footballers in the top leagues and, say, workers in the public sector, or the excessive bonuses of bankers and chief executives. The taxpayer had to bail out the banks in the financial crisis of 2008 and who can forget the outrage when the Royal Bank of Scotland collapsed in 2009, with a loss of £24.1 billion (the biggest ever annual loss in UK corporate history) but the Chief Executive of RSB, and therefore the architect of its failure, Fred Goodwin, was receiving a pay-off, combined with his pension, worth £16 million. The public demanded some action, so that eventually his annual pension payment was reduced from £703k to £342k (still a sizeable sum by anyone’s standards), and, more symbolically, the Knighthood, he had received for his services to UK banking, was stripped from him (February, 2012).
The huge difference between the pay of board room members and executives, compared with ordinary working people, is still a very divisive issue. It gives rise to a sense of obscene unfairness, combined with anger at the apparent greed of senior executives. According to Deloitte, in 2021 the median total annual remuneration for CEOs in the FTSE 100 companies was £3.62 million. This level of payment sits very ill when the country is going through 'a cost of living crisis' and when The Trussell Trust has announced that 2.99 million people received emergency food parcels from its food banks between April 2022 and March 2023, a 37% increase from the previous year.
There is a feeling amongst sections of the public that capitalism’s link to a form of libertarianism, where the state or society has little power, has allowed market forces unacceptable domination, whereby individuals have benefitted at the expense of the majority. If utilitarianism, based upon the principle of happiness for the greatest number, fails to take into account individual rights, then libertarianism of the market leads to unacceptable inequalities.
Immanuel Kant, the German philosopher from Konigsberg (now Kaliningrad, an enclave of the Russian Federation), argued for equality and believed that justice could not be based upon consequences (i.e. utilitarianism), but true egalitarianism must stem from moral actions based upon motivation. He further concluded that ‘doing the right thing’ was a product of human reason. In his argument reason is above cultural prejudices and ideologies and it is only through reason that we can determine what is just. His assumption, however, that humans all reason, in the same manner, could be challenged in the same way it has been argued that intelligence tests are inevitably culturally specific. He believed all humans, through their reason had a universal understanding of what is right and what is wrong. He believed one should never lie, but he was prepared to fudge at the edges, by what might be described as hair-splitting.
Such an argument often gives philosophy a bad name as it tends to create grey areas, which are unloved by those who want to see the world in black and white. A favourite example of hair-splitting is when President Bill Clinton was asked about his relationship with Monica Lewinsky in 1998, when he replied, “I did not have sexual relations with that woman”. The truth of Clinton’s claim all depends upon the definition of sexual relations and what that means in a particular context.
The American philosopher, John Rawls, picking up on Sandel's second moral concern, also argued that justice should be based upon liberty and equality. He formulated the idea of creating notions of justice based upon the ability to construct fairness outside a social or cultural context. He described this as conceiving what is fair and just and can be legislated for behind “a veil of ignorance”. This would deprive participants of information about their particular characteristics, ethnicity, social status, gender, ideology and social milieu, so they would have no conception of the good life. Participants would be forced to select principles impartially and they would conceive of a form of justice which would be fair to everyone, as "most reasonable principles of justice are those everyone would accept and agree to from a fair position”.
However, the playing field is rarely entirely level – we are born into an arbitrary context with its advantages and disadvantages. The vagaries of birth propel us into a range of inequalities which cannot all be overcome by our individual effort. Should society aim to iron out the physical, mental and social differences and eliminate the unequal elements of nature? Should we attempt to remove competition and sublimate the emotions, like Aldous Huxley‘s Brave New World, where the population, under the influence of drugs, live in blissful peace – the ultimate good life? Inevitably, one might think, the attempt to suppress negative emotions in Huxley’s world ends in tragedy, with the protagonist committing suicide!
Another satirical view of evening out advantage is portrayed in Kurt Vonnegut Jr‘s Harrison Bergeron: a dystopian future where all inequalities are eliminated, “...and everybody was finally equal...Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else”. The only way this was achievable was to reduce everyone to the lowest common denominator - equality was enforced by agents of the US Handicapper General.
Clearly, any attempt to eradicate innate differences is doomed, but if it is unrealistic to think we can overcome natural inequalities what about those that society can regulate? The case for equality often argues for social engineering of some sort; sometimes, under the guise of a policy of positive discrimination. Positive discrimination or affirmative action, as it is referred to in the US, aims to enhance equal opportunities where it is felt that the ruling culture has discriminated against sections of society. It is, of course, in itself a reverse form of discrimination and will, just as it benefits some, inevitably disadvantage others.
An example of positive discrimination in England and Wales which arose while I was still working full-time at a university was generated over the allocation of university places. The establishment of OFFA (Office for Fair Access) between 2004 to 2018 was dedicated to ‘encouraging’ the universities to recruit numbers of students from poorer backgrounds, with weaker academic qualifications. The argument that too many privileged candidates from wealthy backgrounds and private educational institutions were gaining access to the leading universities, in particular the so-called Russell Group, because admissions were solely based upon academic qualifications, required some state intervention to ensure all universities took a quota of students from less well-off backgrounds (and hence universities should contribute to social mobility).
I remember when the Head of OFFA, Professor Sir Les Ebdon, when quizzed by the Select Committee for Business Innovation and Skills, vetting his appointment, replied, to a question about what he would do if universities did not comply with OFFA, replied he would implement the “nuclear option", which was generally interpreted as withholding funding from a non-compliant institution. Unsurprisingly, the Select Committee, which was dominated by Conservative members, advised against his appointment, but Vince Cable, who was then the Secretary of State, ignored them and appointed Ebdon anyway.
It is arguable how successful this attempt at positive discrimination was. Though it claimed success in widening participation in degree courses, there were issues of retention - students not completing their studies - as well as 'dumbing down' - the so-called 'Mickey Mouse degrees' - tokenism, and disparities of recruitment to more select institutions, like Oxbridge colleges.
A more recent example of the use of positive discrimination has arisen with the movement Black Lives Matter. Some believe it has led to more positive discrimination in the UK. For example, in 2020, the government announced a review of race inequality in the criminal justice system, which was seen as a response to the BLM protests. The review found that Black people are disproportionately represented in the criminal justice system, and made several recommendations to address this, such as ending stop and search without reasonable suspicion.
The debate about social engineering and the principle of positive discrimination and whether it is just is sure to continue in democratic societies. It might be argued such action militates against the arbitrariness of birth and background into a lower economic order, but the social good may seem rather hollow to the individual, who is denied their opportunity in life because of the accident of their birth.
Rawls argued for equal opportunities, which ensure offices and positions (including university places) should be open to any individual regardless of their social background, race or gender. It might be thought that such a position would work against positive discrimination. However, Rawls also advocates 'The Difference Principle', which attempts to regulate inequalities by only permitting inequalities that work to the advantage of the worst-off. In theory one might expect the construction of justice through his “veil of ignorance” could account for all disadvantages.
For Kant and Rawls the idea that justice, a governmental system, depends upon concepts of the good life is wrong because they are at odds with individual freedom. A state should allow people themselves to choose their own good life as long as they do not harm anyone else through their choice. The law should only provide a neutral framework to protect all citizens from harm and coercion. Aristotle’s teleological notion that the state has jurisdiction over the good life, determining what is virtuous, therefore, has to be rejected: 'right has to be prior to the good'. However, as Michael Sandel points out, the conviction that justice involves virtue runs deep in society.
The belief, then, that justice can be formulated in a neutral context is problematic. Every society carries its cultural baggage and our identities have some form of contingency upon our moral positions – an obvious example would be same-sex marriage, which has touched a range of cultural and theological sensibilities.
While Sandel does not want to abandon theories of equality and liberty in his concept of justice, he calls for a more practical approach that recognises the history and context of communities. Sandel has been associated with a school of Philosophical Communitarianism, though, importantly, he would disassociate himself from any connection with Political Communitarianism. Philosophical Communitarians claim values and beliefs are formed in public contexts. It is in these cultural spaces that debates about justice take place. Practices and traditions are communicated through cultural history and create the context against which individuals understand and formulate beliefs.
Sandel looks to the work of Alasdair MacIntyre, a Scottish moral philosopher, to help resolve the problem, concerning the belief that justice should be neutral but understanding the real influence of cultural contexts on ideas of justice and the good life. MacIntyre, despite a past allegiance to Marxist ideology, views the issues of modern moral and political philosophy, “not from the standpoint of liberal modernity, but instead from the standpoint of ... Aristotelian moral and political practice”. He recognises the cultural and evolutionary tendencies in formulating human thinking, describing these contexts as “lived narratives”. Sandel accepts the contextual influences but would argue that it does not mean that we have to accept the dominant cultural beliefs. Instead, he suggests that arguments against majority ideas of justice are formulated within the “lived narrative” of the community. An example of such a discourse would be that the historical belief by the majority that slavery was acceptable was rejected through arguments, arising from a Judaeo-Christian heritage and the development of secular notions of humanity derived from the Enlightenment.
To conclude: Michael Sandel identifies three distinct approaches to justice. The first is based around majority thinking and provides happiness to the greatest number, but does not protect minorities or individuals. It is a calculation not a principle. The second allows complete freedom of choice and is founded in total equality, but is not practical for any society as it takes no account of the character and quality of cultures. The third, which he favours, is justice which involves cultivating common virtue and reasoning about what is the good life.
It can be argued that there is patent psychological value to be gained if we can recognise ourselves as part of a historical narrative (one only has to look at the popularity of genealogy to understand this notion). However, modern Western society's 'advances' have depended upon challenging the inheritance of those stories (for example, the overthrow of legislation against homosexuality). It would be difficult to challenge the view that stepping back from our narratives in order to apply the universal has brought profound changes to perceptions of justice. These changes have advanced the sense of justice for a range of minorities and individuals who would otherwise face prejudice and discrimination What is certain is that there will be ongoing disputes over morality and religious beliefs and pluralistic societies will continue to disagree about what is 'justice and the good life'.
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