4 Defining justice
4.1 Distributive and commutative justice
Justice is commonly thought to have two applications which Aristotle distinguished as ‘distributive’ and ‘commutative’ justice. The first, distributive justice, is concerned with the distributions of things (rights, goods, services and so on) among a class of individuals.
What is distributive justice?
A principle of distributive justice specifies how things such as rights, goods and well-being should be distributed among a class of people.
The root idea of distributive justice, according to Aristotle, is that of ‘treating equals equally’. Nevertheless, it is far from simple to specify what this means. Who are the relevant equals? The members of this class might be the individuals of a given political community, the many political communities that make up the world, or even all the individuals in the world. And what is involved in treating people equally? That they all have the same rights, that they all achieve a minimum standard of living?
The second form of justice, commutative justice, is about the treatment of an individual in a particular transaction – it is about giving someone what he or she deserves or has a right to. According to Plato, it is about giving each person their due. An example, often referred to as retributive justice, might be the redress someone is due for a wrong suffered, or the punishment due for an offence committed. Notions of desert and of what people have a right to are also complicated.
What is commutative justice?
A principle of commutative justice specifies how individuals should be treated in a given class of actions and transactions.
Thus, like ‘rights’, the term ‘justice’ is a ‘contested concept’, one whose meaning is never completely fixed or finally closed and agreed upon. This contestability and flexibility of outcome is what Aristotle referred to when he said that ‘justice is the mean (middle) point between conflicting claims’. This view believes that each society (or group within it) will have its own definition of justice and rights, and those definitions cannot (and perhaps should not) be reconciled. Each society (or group) will have its own ideas about justice and rights, and its own practices for implementing them. Such concepts are inevitably conflictual, contestable and politically charged.
Consequently, as a matter of retributive justice, for example, the legal system in the UK no longer upholds capital punishment, but it is an important part of the legal codes of a range of US states. Another instance from the sphere of distributive justice is that liberal societies (which hold that, in principle, maximising the scope of individual freedom takes priority over developing and politically implementing a shared view of the good life of the community) take the view that justice involves allowing individuals to have the largest possible amount of freedom so that they have the widest scope for their own choices.
By contrast, some societies with different cultural and political traditions see distributive justice in terms of the needs of the collective body of members, thereby tempering individual rights. For instance, free speech is a valued right in the American Constitution, but the prohibition to deny the Holocaust in Germany is important to the political identity of that country.
It is part of the contestability of concepts such as justice and rights that the definitions of these terms shift over time, and the process by which this change occurs involves a debate between different normative (value-laden) positions. Therefore, capital punishment used to be practised in the UK as an important form of retribution, and although a majority of UK citizens still support capital punishment, it is no longer held by Parliament to be morally justifiable and does not form part of the legal code. A further example of reforms in rights and justice under the impact of changing social values is a much stronger emphasis on the idea of children's rights than there was even 20 years ago.
‘Justice’, then, is a term that refers to society and its political arrangements as a whole. One way of describing the relation between rights and justice is to say that rights recognise everyone as, in a fundamental sense, the same, whereas justice accommodates the fact that we, while living together, are all different.
Question
How do you think a ‘just society’ differs from one in which everyone is treated in exactly the same way?
Discussion
A ‘just society’ is one that deals fairly with all its members. This does not necessarily have to indicate that it treats them all in exactly the same way. This is what Plato meant when he argued that ‘justice is giving each person their due’, and what Aristotle implied by saying that distributive justice involves ‘treating equals equally’ and commutative justice involves giving people what they deserve. Plato had in mind a hierarchical society in which the benefits and responsibilities were distributed depending on one's position. Bentham's utilitarian model is another influential idea about justice. Bentham, considering that justice refers to society as a whole, argued that it was the function of government to maximize the interests of all (adding up those of each person) by promoting the general good or utility of all.
Like rights, any particular idea of justice (even the idea of ‘natural justice’) needs to be entrenched in a society's codes in order to be effective. I have already noted that ideas about the proper content of retributive justice differ from society to society. Moreover, within any given society ideas about what is just change over time. Equal access to justice means not dealing with people in an arbitrary fashion but fairly, giving them a fair trial and dealing with them impartially and neutrally, without prejudice.