Justice

Is Justice an Empty Idea?

The deep and persistent disputes over what counts as justice have generated skepticism about the philosophical significance of the agreement that justice counts. Value relativism, which applies to values in general, including justice, is a part of this skepticism but not the whole of it. The distinctive skepticism that is evoked toward justice by the aforementioned asymmetry of its widely acknowledged importance and deeply disputed content is the suspicion that justice is an empty concept. Those who harbor this suspicion hold that the endless controversy about the nature of justice exists not because it is an unfathomably profound idea but because it is an empty magical formula that we can fill with whatever content we may think useful for rationalizing our claims to what we want and dismissing the competing claims made by others. Hans Kelsen, a representative positivist legal philosopher in the 20th century, is a notable example of such critics of justice.

To dispel this suspicion, attempts have been made to identify the common conceptual core of justice. The starting point is the distinction between the concept of justice and conceptions of justice. The concept of justice represents the meaning of justice, or what we mean by saying about something that “it is just.” Conceptions of justice specify the criteria by which we can judge whether and when the adjective just is applicable to something. Each conception constructs a theory to defend its own distinctive criterion (or set of criteria) against other competing conceptions, which expound different criteria (or different sets of criteria). For example, utilitarianism and individual-rights theories are two competing groups of conceptions of justice, each with its own competing varieties, such as direct and indirect utilitarianism and libertarian- and egalitarian-rights theories, respectively. The chief purpose of this distinction is to stress the point that there can be genuine conflicts between competing conceptions of justice because and only if they present different (sets of) criteria for the same concept of justice. If they were expounding different (sets of) criteria for different concepts, they could not be conflicting but only at cross-purposes with each other.

This point can be supported by the general semantic thesis that criterial conflicts about a word are possible only if the same meaning is [Page 1389]attributed to it as well as by the hermeneutical thesis that interpretive conflicts are possible only if the same concept is interpreted in different ways. Whether the semantic and hermeneutic theses are generally applicable or not, however, the aforementioned point is hard to deny as far as justice is concerned. For example, there is a genuine conflict between talio, the ancient conception of retributive justice that stipulates “an eye for an eye,” and the modern utilitarian conception of corrective justice, which approves of less (or more) harmful punishments than the harms inflicted on victims by wrongdoers if such punishments are sufficient (or necessary) to bring about the optimum deterrence effect, which is calculated taking punishment costs into consideration. But suppose that while an advocate of lex talionis and a utilitarian were having a debate with each other, a devout Christian moralist said to both of them, “If someone slaps you on the cheek, turn your other cheek to him.” Has the Christian joined in the debate, adding a new view on the issue in question? Certainly she has not. Rather, she has changed the subject matter. Her standpoint is at cross-purposes with those of the talio-retributivist and the utilitarian. This is because her criterion for the appropriate response to the other person's wrongdoing is one not for the concept of justice but for a different concept, love. What she has propounded is a Christian conception of love, not a conception of justice that competes with the other two. By changing the subject matter to love, she has gone beyond the conceptual space of justice. There is a genuine conflict between talio-retributivism and utilitarianism just because they belong to the same conceptual space of justice. This shows that justice has a conceptual core that delineates the range of competing conceptions of justice and makes their rivalry possible.

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