Justice in a Free Society
by Dr. Edward Younkins
Professor of Accountancy and Business Administration at Wheeling Jesuit University in West Virginia and author of Capitalism and Commerce.
Justice is a concept that applies only to other-directed human actions. The question of justice and injustice only arises when there are multiple individuals and some practical considerations regarding their situations and/or interactions with one another. In one sense, it is a concrete, objective, and recognizable principle (i.e., respect for individual rights) that provide the foundation for a free society. Justice, in such a metanormative context, means to respect free choice. In turn, to be just and moral in a normative sense (i.e., as a central, social virtue of human flourishing) requires respect for individual free choice. Only free persons can be just and moral persons. Metanormative justice provides a criterion for law and for the possibility of individual morality and normative justice.
The idea of justice has been debated for thousands of years. The first section of this chapter briefly surveys the conceptual foundations of Western notions of justice. Next, two dominant theories of justice in America in the twentieth century are compared and contrasted. These are John Rawls’ end-state (or distributive justice) theory and Robert Nozick’s entitlement (or process) theory. Finally, a set of principles of metanormative justice congruent with the possibility of human flourishing and morality in a free society is presented.
Western Ideas of Justice
Western concepts of justice are derived from Greco-Roman philosophical traditions and the teachings of Christ. From Greco-Roman traditions comes the ancient maxim, “to live honestly, to hurt no one, to give everyone his due.”
In ancient Greece, justice was believed to be derived from the order of society—a good society fostered justice, and justice fostered a good society. For Plato (428-348 B.C.) and his contemporaries, justice was seen as the paramount virtue with respect to our relations with others. According to Plato, justice is the bond that holds a society together. Both individualism and personal rights had little to do with the Platonic conception of justice that appeals even today to collectivists who emphasize the social context of justice. Followers of Platonic justice tend to place their faith in the state. Karl Popper has even gone so far as to claim that Plato’s conception of justice is identical with that adopted by modern totalitarianism.
According to Aristotle (384-322 B.C.), justice is voluntary—a man acts justly or unjustly whenever he performs his acts voluntarily. He explains that justice is the virtue through which each person enjoys his own possessions in accordance with rightful and just laws—not those that legalize theft and redistribute property from some individuals to others. Natural and universal justice should precede and form the basis for law. Such justice is superior to state-dictated justice that is special and limited to the needs of the government. Justice, in the tradition of Aristotle, means treating individuals in accordance with their deserts, treating equals equally, and treating unequals unequally.
The Roman contribution to the concept of justice was the notion of law as an aggregation of personal rights. Justice was seen as an abiding disposition to give every man his right. No longer viewed as a function of society as a whole, justice became the concern of the legal aspect of society—it became specialized in an institutional function protecting personal rights, rather than as the social concern of all citizens.
The ancient idea of commutative (i.e., reciprocal) justice involves the exchange of things profitable for things profitable. As I supply a benefit for you, I also receive one from you. A contract of exchange is an act of voluntary commutative justice in which each person obtains something of greater value to him than that which he gives in return. The purpose of commutative justice is to preserve equality of rights between individuals. The idea that each person, minding his own business, should receive rewards that are appropriate to his work implies both freedom and responsibility. Through Roman law, this doctrine of justice passed into European legal codes and ultimately into English and American law.
In Western theology, the biblical Book of Job embodies the idea that each man has God-given rights. Justice is the right of all and certain things are owed to a man simply because he exists as a man. Our political traditions have interpreted these to be life, liberty, and the right to pursue happiness. Such justice is to be achieved, not through the dictatorship of man, but through the rule of law. Without justice, the rule of men, rather than law, attains power. Without objective law, the individual is at the mercy of rulers and their agents. The rule of law means that the state must be bound by fixed and predictable rules and that the same laws govern all people.
Implicit in the phrase “to each his own” are the beliefs that: (1) man has a distinct, constant nature; (2) justice in the natural order consists of the consistent application of truth; (3) the universe operates as constructed; and (4) man has free will and is fallible. Given the nature of man and the universe, it is just to respect the right of each human being to make his own noncoercive free choices in his search for truth, justice, and happiness.
Augustine (354-430) interpreted the eternal law as the divine reason and will of God that commands the observance of the natural order of things. He called a person’s proper understanding of the universe’s eternal principles natural law. Justice, for Augustine, precedes the state and is eternal. Laws that are not just are not laws at all—the moral force of a law depends on the extent of its justice. Natural justice must precede law and form the basis of law thereon. For Augustine, the primary relationship in justice is between a person and God.
Thomas Aquinas (1225-1274) defined the virtue of justice as a consistent and lasting resolve to render to everyone his due. He viewed justice as certain rectitude of mind, whereby a man does what he ought to do in the circumstances confronting him. Aquinas agreed with Augustine in that laws framed by man can be either just or unjust.
Aquinas believed it was just for market prices to fluctuate to reflect need, scarcity, and cost. He also maintained that a seller should be liable for defects in the goods he sold because otherwise the buyer will have paid too much for what he received. This would be a violation of commutative justice that has the purpose of preserving equality of rights between individuals (e.g., between the value of an item purchased and the price paid for it, between the wages paid by an employer and the work performed by the employee, etc.).
According to Hobbes (1588-1679), there exists both an immortal God and a mortal God, the State, which he called the Leviathan. Hobbes maintained that the omnipotent state was the center of both secular and spiritual power. From the Hobbesian view, the state can create, confirm, and take away rights. It follows that, for Hobbes, justice is that which is meted out by the power of the state. Because Hobbes defines law as a command of the sovereign, it follows that where there is no sovereign, there is no law.
For John Locke (1632-1704), the concept of justice is a major underlying theme throughout his political thought as a whole. For Locke, natural justice sets the limits and provides the direction for civic justice via the concept of natural rights. Moreover, at its most basic level, Locke’s theory of justice is a natural law theory even more than a natural rights theory. Whereas individual rights are inalienable, they are nevertheless based upon, and limited by, the law of nature. According to Locke, justice is inconceivable without personal property—where there is no property, there is no justice. The essence of Lockean justice is the security of each person’s personal possessions as a right based on the law of nature.
Jeremy Bentham (1748-1832) expounded a utilitarian idea of justice called legal positivism or legal realism that stands in opposition to the classical and Christian understanding of justice and law. To the legal positivist, laws are no more than commands of human beings. For the positivist, there is no necessary relationship between law and morality or between descriptive law and normative law. The only source of justice recognized by positivists is the sovereign state.
John Stuart Mill (1806-1873) said that it was inconsistent with justice to be partial. The public good is promoted when justice is impartially administered because it is to each person’s benefit that no injustice be done to him, so it is also to his benefit that the principle that makes him secure should not be violated for other men, because such a violation would weaken his own security. Justice requires rule by known general principles of conduct, which apply without exception, to all regardless of status or wealth, in an unknown number of future instances. It follows that all citizens should have equal access to legal recourse in the event of an attack on their life, property, or freedom.
Justice: The Contemporary Debate
The U.S. Constitution is a fundamental document defining the American concept of justice. Strongly influenced by John Locke, some of the constitution’s major assumptions are: (1) An individual has a natural right to liberty and his own free pursuit of happiness; (2) Government is a contract among the governed; (3) Laws must depend on the consent of the governed; (4) Justice is most likely to be achieved when government is through the consent of the governed; (5) Representative government is necessary for justice; and (6) The individual must be protected against the potential power of government.
In the Constitution, equality was not equated with justice. The framers believed that justice exists when all interactions among people are based on voluntary exchange. To them, it was the process of interactions, not the outcomes, which mattered. Today, however, a new idea of justice (often called social justice) equates justice with equality. This view is used to call for a process of enforced equalization and to make envy an acceptable emotion. Under this new concept of justice, an individual is free to exercise his rights as long as such exercise does not violate state-created superior or equal rights of others or the common good as defined by the state. The demand for equality, if fully recognized and implemented, would mean the end of a free society and would result in treating people unequally because the state would have to treat individuals differently in order to make up for their excess or deficiency of ability, motivation, and other attributes. The notion of social justice is used to foster social reform through state intervention and economic planning, devices which require the sacrifice of the moral ideas of individual freedom, individual responsibility, and voluntary cooperation.
The most widely discussed theory of distributive justice during the past three decades has been proposed by John Rawls. In lieu of the concept of the state of nature, Rawls introduced the methodological concept of an “original position,” a hypothetical and counterfactual condition which requires us to visualize the negotiators of the basic terms of political association conducting their negotiations behind a “veil of ignorance” while having no knowledge of their individual life conditions, including their talents, intelligence, sex, race, class, religion, wealth, conception of the good, etc. According to Rawls, to be fair in selecting the principles of justice, the possibility of bias must be removed. Fairness in Rawls’ theory requires the more favored to agree to the type of distributive rule they would prefer if they were not more favored.
Rawls thus argues that the principles that should govern the basic structure of a just or well-ordered society are principles that would be selected by rational individuals in specially constructed, imaginary circumstances called the original position. For Rawls, a society is well ordered when (1) its members know and agree to the same principles of social justice and (2) the basic institutions of society generally satisfy and are widely known to satisfy these principles. Rawls argues that if we are to justify the use of the coercive power of the state over individuals, it ought to be in terms of reasons that all can accept or should accept.
Rawls proposes that persons in an original position will or should agree that all social primary goods (e.g., basic liberties such as political freedom and freedom of choice in occupations, opportunity, income, wealth, and the bases of self-respect) are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favored. Rawls thus depicts justice as an issue of fairness, focusing on the distribution of resources, and permitting an unequal distribution only to the extent that the weakest members of society benefit from that inequality. To Rawls, this justifies the coercive limitation of unjust resources and therefore redistribution where it would improve the situation of the disadvantaged. For Rawls, even if an inequality does not harm the least well off, it is unjust if it leaves them no better off than before. This emphasizes a redistributionist type of justice and a defeasible presumption in favor of equality in the distribution of primary goods such as wealth and income. Rawls’ assumption that equality is desirable puts the burden of justification on those who support some type of inequality.
According to Rawls’ difference principle, an inequality can be advantageous to the person who gets the smaller share because inequalities can constitute incentives which increase the size of the pie to be shared, so that the smaller piece may be larger in absolute terms than an equal share of the smaller pie that would have existed in the absence of such incentives. The difference principle collapses to strict equality under conditions where differences in income and other rewards have no effect on the incentives of individuals. However, in the real world currently and in the foreseeable future, greater rewards bring forth greater productive effort, thus increasing the total wealth of the economy and, under the difference principle, the wealth of the least advantaged.
A practical implication of the difference principle is that society must redistribute income up to the point where the wealth of the representative poorest individual (an abstraction) is maximized. In other words, “society” should tax and redistribute the wealth of the more advantaged up to the point where their incentives to produce more disappear.
Rawls recognizes that by allowing at least some greater level of rewards to accrue to the skilled and motivated, the poor will be better off than they would have been with a totally equal distribution of income. He also realizes that redistribution cannot go as far as his ethical preference for equality would recommend without making everyone (including the poor) worse off. At some point, impairing individuals’ economic incentives would reduce the total wealth in society.
Rawls argues for inheritance taxes on the basis that an unregulated transfer of wealth from people to their children would result in the entrenchment of wealth in particular segments of society. According to Rawls, individuals who are not fortunate enough to have wealthy parents do not merit worse starting points and, consequently, worse life prospects than those who were so fortunate. Ignoring the right that people have to bequeath wealth to whomever they want, Rawls contends that society should equalize the prospects of the least well off by taxing the undeserved inherited gain of children of rich persons, and using the tax proceeds to aid the least well off.
Rawls describes his theory as political rather than metaphysical—it is political in the sense that it does not depend on any of the metaphysical assumptions that are disputed among reasonable citizens in a pluralistic society. Rawls argues that democracy is required by justice, because as a procedure it complies with the tenets of justice in that it assigns everyone equal and extensive rights and liberties and because of its propensity to produce just results. For Rawls, the function of justice is to ensure that disagreements are resolved on the basis of prior agreement instead of through force. Thus, even if there are disagreements about the justice of particular laws and policies, there should minimally be agreement with respect to the procedures used to resolve these conflicts. Rawls renounces what he refers to as liberal equality (i.e., political equality and a market economy tempered by interventionist government efforts aimed at furthering equality of opportunity). He finds liberal equality insufficient because it seeks to ameliorate only those inequalities stemming from differences in social and historical circumstances, thereby permitting real differences in individual ability and effort to emerge as the causes of economic success. Rawls believes there is no more good reason to allow the distribution of wealth and income to be determined by the possession of natural endowments than by social and historical factors. Rawls contends that individuals do not deserve the genetic assets they are born with. He explains that, from a moral perspective, the level of effort people are willing to put forth is, to a great extent, influenced by their natural endowments. Consequently, those who are more productive due to their greater natural abilities have no moral right to greater rewards, because the abilities and motivation that make up their work cannot be morally considered to be their own. In effect, Rawls’ difference principle is an agreement to consider the distribution of natural talents as a common asset and to share in the fruits of this distribution, no matter what it ends up being. In this view an individual’s natural endowments are not considered to be his own property, but rather the property of society.
Rawls contends that underserved inequalities call for redress in order to produce genuine (i.e., fair) equality of opportunity instead of procedural (i.e., formal) equality of opportunity. Rather than having all play by the same rules or being judged by the same standards, Rawls wants to provide everyone with equal prospects of success from equal individual efforts. Rawls’ idea of fairness requires that the state have the power to control outcomes and to supercede the preferences of individual citizens.
What makes Rawls’ idea of justice so important is that he systematically expresses a vision that had already underpinned a great deal of social policy, legal theory, and even international relations. The goal of Rawls’ conception of justice is to put certain segments of society in the position that they would have been in except for some undeserved and unfortunate circumstances.
The Rawlsian idea that one’s own status, endowments, and wealth are unearned is especially potent when it is combined with (1) the Kantian notion that there is no virtue in pursuing one’s own personal flourishing and/or (2) the guilt felt by those who are ashamed to live in material abundance while others in the world suffer. Kant advocated abject selflessness and held that an action is moral only if a person performs it out of a sense of duty without regard to any personal goal, desire, motive, or interest—if a person acts to derive benefit, his action is amoral. Furthermore, Kant would even maintain that no moral credit would accrue to a person who gains pleasure from his charitable activities even though he did not seek such pleasure. In addition, so-called political guilt can be defined as the belief that one belongs to a group of people that has unjustly or unduly fortunate circumstances, endowments, or privileges. Allan Levite has explained that those who regret their good fortunes are drawn to egalitarian political ideologies that promise to remove the social or economic inequality that is the source of their guilt. Such people wish to level society in a manner that will alleviate their own guilt feelings. They believe that only the state is powerful enough to redistribute resources thereby relieving their political guilt. The state’s promise to provide for the poor relieves guilt-ridden people of the stigma of “privilege” that they feel they bear by making it appear as though their resources and employment roles were granted by official state permission, instead of being the result of privilege or chance.
Rawls focuses on how goods are distributed among persons “representative” of various positions in society, but ignores which individuals have which goods and how they gained possession of them. Critics of Rawls argue that people hold an entitlement to what they produce or have legitimately acquired and therefore should be protected from Rawls’ proposed redistributionist policies. They hold that the difference principle involves unacceptable infringements on liberty in that redistributive taxation to the poor requires the immoral takings of just holdings. Rawls’ opponents contend that whether a given income or wealth distribution is just or unjust depends solely on the manner in which that distribution came about, not on the pattern of the distribution itself.
Another criticism is that fairness is not the proper standard of justice—the world is inherently unfair and thus “unjust.” Nature does not produce a state of equality. No two people possess the same mental or physical attributes—some are smarter, more talented, better looking, etc. People have the free will to either use or not use the talents that nature has endowed them with. It follows that economic equality is a goal that is incompatible with nature. True justice is attained when people’s lives and property are secure and they are free to own property, order its direction, determine the purpose to which their bodies are put, engage in consensual transactions and relationships with others, and freely pursue their conception of happiness.
Rawls also fails to recognize that talents are not a common pool. The aptitudes that one person enjoys in no way lessens the number and magnitude of abilities that are available to another. My talent is not acquired at your expense. Rawls is rebelling against reality, nature, and the existence of human talent. A natural fact, such as the existence of one’s talents, is neither just nor unjust—it just is. So why should those “favored by nature” be made to pay for what is not a moral problem or an injustice and is not of his or her own making?
Finally, Rawls’ theory can be challenged on the grounds that he is confusing justice with prudence—the virtue of advancing one’s own well-being. To be prudent is to apply intelligence to changing circumstances. Rawls’ maximin strategy appears to be a rational construction of prudence rather than of justice. A prudent man in the “original position” might choose a social structure under which he would be “least worse off” if things went badly for him. Such a choice could be called prudent, but certainly not just.
Robert Nozick has provided the most persuasive and comprehensive case against Rawlsian justice by arguing for a theory based on the principle that all human beings have absolute rights to their person and to the fruits of their labor. Nozick compares and contrasts two systems of justice: (1) his own entitlement theory, which is based on the historical process of acquiring and transferring resources; and (2) end-state or time-slice theory, which is based on the current distribution of resources. Rawls’ difference principle is of the latter type.
Nozick’s entitlement theory holds that a distribution is just if it results through just acquisition from the state of nature or through voluntary transfer via trade, gift, or bequest from a prior just distribution. Nozick proposes that: (1) a person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding; (2) a person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding; and (3) no one is entitled to a holding except by (repeated) application of 1 and 2.
The principle of justice in acquisition states that an acquisition is just if the item is previously unowned and the acquisition leaves enough to meet the needs of others. The principle of justice in transfer is meant to protect voluntary contracts while ruling out theft, fraud, etc. In other words, a holding is just if it has been acquired through a legitimate transfer from someone who acquired it through a legitimate transfer or through original acquisition.
Nozick also proposed the principle of rectification of injustice in holdings. Although difficult to accomplish in some cases, an honest effort must be made to identify the origins of illegitimate holdings and to remedy the situation by compensating the victims of theft, fraud, and intimidation.
Nozick takes his lead from the Lockean notion that each person owns himself and that by mixing one’s labor with the material world, one can establish ownership of a portion of the material world. Nozick explains that what is significant about mixing one’s labor with the material world is that in so doing a person tends to increase the value of a portion of the external world. He reasons that in such instances, self-ownership can bring about ownership of a part of the physical world. According to Nozick, the Lockean Proviso means: (1) that previously unowned property becomes owned by anyone who improves it; (2) that an acquisition is just if and only if the position of others after the acquisition is no worse than their position was when the acquisition was unowned or owned in common.
For Nozick, the right not to have others interfere in one’s life is fundamental—any coercion is illegitimate. Persons are viewed as having natural rights that are prior to society and which must be respected if we are to treat individuals as ends in themselves and not merely means in the endeavors of others. Kant’s categorical imperative provides a foundation for Nozick’s principle of transfer. Individuals should be treated as ends and never simply as means. A person’s autonomy should always be respected. Only the individual person can legitimately decide what to do with his talents, abilities, and the products of his talents and abilities.
Nozick’s idea of process equality means equal treatment before the law. The U.S. Constitution reflects this view in its due process and equal protection clauses. According to this perspective, all individuals should be identically subject to universal rules of just conduct and the state should not grant special privileges or impose special burdens upon any individual or group of individuals.
Nozick refers to the contrary view of equality as end-state equality. From this perspective equality among people is increased when the differences between their incomes, level of wealth, or standards of living are decreased.
The second idea of equality is incompatible with the first. When the state interferes with the process of voluntary exchange to bring about more equality in the end-state sense, the state must treat individuals with unequal voluntary exchange outcomes unequally. In other words, the state would discriminate against those with better voluntary exchange outcomes in favor of those with worse voluntary exchange outcomes.
The process and end-state (i.e., distributive) theories of justice are irreconcilable. Because people have unequal endowments, the free market will inevitably lead to unjust, in the second sense, results. Coercive transfers that are unjust in the first sense can only remedy this “injustice.”
Nozick advocates a system in which the role of the government is limited to the protection of property rights. This view rules out taxation for purposes other than raising the money needed to protect property rights. Nozick explains that any taxation of the income from selling the products of exercising one’s talents involves the forced partial ownership by others of people and their actions and work.
Nozick argues that if we can determine that a specific person is entitled to a specific piece of property, then it is apparent that people with such claims can justly transfer property to whomever they see fit such as their spouses, children, favored charitable organizations, etc. As long as the transfer is voluntary, Nozick contends that there is no need for “society” to worry about how the representative least well off person is affected. It follows that inheritance taxes are not legitimate according to Nozick’s theory.
Principles of Justice
Den Uyl and Rasmussen distinguish between metanormative justice and justice as a constituent virtue of one’s personal flourishing. Metanormative justice is concerned with the orderly and peaceful coordination of any person with any other. This type of justice deals with nonexclusive, universal, and open-ended relationships, thus providing the foundation of a political order and the context for exclusive relationships to develop and for the possibility of personal flourishing and happiness. Justice as a normative principle and constituent virtue involves a person’s contextual recognition and evaluation of others based on objective criteria. Normative justice is concerned with selective (i.e., exclusive) relationships and requires practical reason and discernment of differences of both persons and situations. Justice as a constituent virtue deals with individuals in more specific and personal ways than does justice in a metanormative sense. Not all character failings or immoral behaviors are crimes. The question of how persons ought to act (i.e., normative justice) and the question of how society ought to be structured (i.e., metanormative justice) are separate and distinct investigations. The principles of justice discussed below deal solely with justice in the latter sense (i.e., in the sense of the social structure that should be adopted).
Nature has its own imperatives. An argument can be made that the world is governed by principles or laws that dictate how society ought to be structured in much the same way that natural laws dictate how bridges or buildings should be constructed. Given the nature of man and the world, if we want persons to be able to pursue happiness, peace, and prosperity while living with one another, then we should adopt and respect a social structure that accords each person a moral space over which he has freedom to act and within which no one else may rightfully interfere. The idea of natural rights defines this moral space. The idea of natural rights can be used to create a legal system that makes it possible for individuals to pursue happiness and carry on a virtuous life.
It follows that the fundamental principle of justice is respect for free and nonaggressive choice. Both justice and morality require respect for individual free choice. A state that restricts freedom of choice violates the basic principle of justice. Justice means that a person must be accountable for his own actions, entitled to the reward of his labor, and responsible for the consequences of his wrongdoings. Freedom not only means that the individual has both the opportunity and freedom of choice, it also means that he must bear the consequences of his actions.
Justice and injustice do not depend on positive law. Justice, a broader concept than law, provides a criterion for man-made laws. A just law is one that is based on, and not contradictory to, natural rights. Injustice involves the violation of natural rights and includes murder, assault, theft, kidnapping, enslavement, rape, fraud, etc. If the behavior generating a specific distribution of wealth or income defies rules prohibiting force, theft, or fraud, then the behavior and the distribution are unjust. No particular way of distributing goods can be said to be just or unjust apart from the free choices individuals make. Any distribution of benefits and costs is just if it results from persons freely choosing to exchange with one another.
The law serves justice when it is used to restore the peace when a person’s rights have been violated. However, the law can misuse its power by itself violating people’s rights either for its own purposes or to further the ends of some third party. A law is applied justly if it is applied impartially and consistently. Injustice occurs when like cases are not treated in the same manner. The law should treat similar cases alike unless there is some material, relevant difference. Laws can be unjust—so can the administration of the law. Mercy with respect to the application of the law is at odds with justice. If mercy is just, then every criminal ought to be set free.
Metanormative justice is concerned with individual rights. The right of private property is a person’s right to acquire, possess, use, and dispose of scarce resources, including his own body. Resources may be employed in any manner that does not interfere with other individuals’ use of their resources.
Whereas most property rights are freely alienable (i.e., transferable) a case can be made that the right to acquire one’s person is inalienable. A claim that a right is inalienable is different from a claim that it is nonforfeitable. It is possible to forfeit one’s rights because of some wrong-doing. Because control of one’s body cannot be transferred, it can be argued that the right to control one’s body likewise cannot be transferred. For example, a person who “sells” himself into slavery would still have control over his actions and would have to willfully act to comply with the “owner’s” orders. Put another way, a person’s moral agency cannot be transferred to another person and if that faculty cannot be transferred, then neither can the ownership of that faculty. Because he retains his moral agency, a slave can be held accountable for his actions.
All those who endorse a classical liberal conception of justice do not hold the idea that some rights are inalienable. This is because to maintain that a right is inalienable is to limit individuals’ freedom to contract. Many classical liberals hold that persons should be able to pursue happiness by voluntarily exchanging any of their rights.
The right of first possession stipulates that property rights to unowned resources are acquired by being the first to claim, control, and improve them. In addition, the right of freedom of contract specifies that a rightholder’s assent is needed to transfer alienable property rights both while one is alive and through the use of a will upon one’s demise. It is unjust to violate the above rights through force or fraud.
The right of reparation (or restitution) demands that a person who violates the rights that define metanormative justice must compensate the victim of the rights violation for the harm produced by the injustice. If necessary, such payment may be collected by force. Reparationists oppose violence against people except for self-defense and to educe restitution from criminals and tortfeasers. Criminals and tortfeasers lose their right to self-defense to some degree and do not get their self-defense rights back until they have paid for their crimes and torts by compensating their victims. In addition to condoning violence against a criminal to stop him from committing a crime, restitutionists condone the use of violence (e.g., imprisonment and forced work) against criminals and tortfeasers to compel them to make reparation. According to the principle of strict proportionality, the amount of restoration should be limited to that which is necessary to fully compensate the victim—there should not be overcompensation or undercompensation.
A special case of commutative justice, the obligation of making restitution involves the returning of something stolen (or if not possible, its value), the restoration or repair of something destroyed or damaged, compensation for an injury that has been unjustly inflicted, etc. Restitution is called for in cases of theft, fraud in contracts, the culpable nonpayment of debts, the non-returning or excessive delay in returning borrowed items, the failure to reveal defects in items sold, deceit with respect to the quality of an item sold, etc.
Like reparationists, retributionists condone violence for self-defense and to force a criminal or tortfeaser to compensate his victim. However, retributionists also condone the use of force to punish a criminal for his crime.
Neither reparationists nor retributionists espouse utilitarian objectives such as rehabilitation or deterrence, both of which can be sought without concern for justice. Instead, their focus is on personal responsibility, just compensation, and for retributionists, deserved punishment. Justice depends on desert, and desert is a matter of past performance, rather than of future possibilities. Of course, there is the problem of trying to objectify the subjective value of just restitution and, for retributionists, the degree of deserved punishment. It is easy to generalize that the level of a punishment should fit the severity of the crime (i.e., punishment must be proportionate to desert), but it is much more difficult to obtain agreement on the appropriate punishment for a particular crime.
The right of self-defense allows the proportionate use of force against those who threaten to violate another’s rights. Normal self-defense is allowed when the commitment of a rights violation is impending. Extended self-defense is permitted when a person has indicated, by past rights violations or other proven prior conduct, to be a threat to violate rights in the future. Whereas restitutionists would tend to argue for life imprisonment for convicted murderers on the basis of extended self-defense, retributionists would argue for life sentences (and some for capital punishment) on the basis of deserved punishment.
Metanormative justice is a concept that can be used to evaluate the propriety of the use of force. The principles of metanormative justice presented in this chapter can be debated, refined, and then used to critically evaluate, validate, and correct human laws that are coercively enforced.