Justice, part 1

“You have to give them hope -- hope for a better world, hope for a better tomorrow.”
--Harvey Milk

Hope, as I often say, and as most of you know well, is not about wishful thinking. Harvey Milk was not saying you have to fill them up with yearnings after fantasies. It might start with yearning and a creative fantasy, but it becomes hope only when there is engagement in a process of moving toward the desired outcome – and that engagement gives meaning to your life whether the desired outcome ever occurs or not. To give them hope is to create a context in which meaning may be made.

This June, this Pride Month, we are remembering Harvey Milk, what he lived for and died for, and what the rainbow flag he designed means to us. Also our theme of the month for June is Justice. All of that we are weaving together today.

Let’s plunge into Justice, explore what that means, and at the end curl back to see how that fits with Harvey, and hope, and rainbows. This morning, the invitation is to think like philosophers on the subject of justice.

I should note that in my years as a philosopher, I came to see, to experience, the good of philosophy, if it has any, much less in any particular conclusions one may reach and much more in the way of life, the way of community and conversation, that is embodied when two people engage a philosophical question at some length. Debaters – whether academic debate teams or politicians or opposing lawyers – are always addressing, seeking to win over to their side, a third party: the judge, or the voters, or the jury. Philosophers, however, truly address each other – seeking to win the other over to their side while – and this is crucial -- seriously considering whether to join the other’s side. Debaters can’t do that. Philosophers do, and it opens, I found, a possibility for a depth of relationship like nothing else. Thus I was moved by words of Allan Bloom, with whom I disagreed on many things, describing true friendship: “The true friends,” he said, are

“as Plato was to Aristotle at the very moment they were disagreeing about the nature of the good. They were absolutely one soul as they looked at the problem.”

In our time this morning, I can only gesture in the direction of an invitation to that sort of relationship. When we ask a philosophical question like, “What is Justice?” we are, of course, trying to understand ourselves – trying to better grasp one of the concepts with which we assess our lives and experiences.

One thing that comes to mind when someone says “Justice” is what is called our “Justice System:” the system of police and courts that – ideally – enforces the rules in a way that is just – that is equitable, and fair. And then there's social justice, which has to do with whether society itself is just, equitable and fair in the way its structures and institutions afford to members wealth, opportunities, privileges and rights.

Let’s look first, however, at the sort of Justice that is neither of these: Justice as a virtue, a character trait of individuals. What does it mean to be a just person? What does it mean for you to act justly in your day-to-day life?

Justice has to do with distribution: who gets what. Whether it’s a judicial system distributing penalties to accused criminals and tortfeasors, or a social system through which income and wealth are distributed and maintained, or an individual, it’s about who gets what and who should get what.

Not all wrongs fit under this category. As cowardice is a failure to be courageous, and lying is a failure to be honest, and an indecorous outburst or an overindulgence is a failure of temperance, stealing from people, or not giving them what one owes them, are failures to be just. Cowardice, lying, or intemperance might also effect how something is distributed, though they often don’t – and, if they do, they might thereby also be a failure to be just. It is also unjust if you are called upon to distribute something – whether something good or something burdensome – among members of a group, and you use an arbitrary or unjustified basis for making the distribution. Thus Justinian in the 6th century said justice is giving each person their due.

When Aristotle addressed justice as a virtue, he characterized it as he did virtue generally, as a mean between excess and deficit. Thus each virtue has two opposites: too much and too little. As courage is the mean between being too reckless and being too timid, justice is the mean between giving more than is due and giving less.

For much of his treatment of justice, however, there is but one pertinent opposite of justice, and that is greed, where greed is understood as “the insatiable desire to have what rightfully belongs to others.” Seeing greed as the opposite of justice – greed as what is generally behind injustice – may shed light on a number of levels.

What is due, says Aristotle, is what is lawful and fair, and fairness involves equitable distribution, and correction of what is inequitable. Aristotle recognized that being equitable wasn’t the same as a blanket equality that gave exactly the same to everyone. A doctor, for instance, who gives equitable treatment to every patient, does not give exactly the same treatment to the patient with a broken leg that she would give to a patient with indigestion. Rather, her treatment is equitable to the extent that it represents an equal concern and respect for each patient – however different the treatments called for might be.

Also going back to Aristotle is the maxim, “treat like cases alike” – and treat different cases differently. Of course, every case is different, so when we say “like cases” we mean relevantly similar, or similar examples of the principles that apply. This principle bridges us into the sort of Justice for which our Justice system is named – the system of courts and trials and judges which, ideally, hands out similar penalties for similar crimes or harms.

So we have these two maxims of justice: “Give to each their due,” and “treat like cases alike.” Neither maxim tells us much. Exactly what is it that is due to somebody – and exactly what is relevant when assessing whether two cases are relevantly alike – those are often quite difficult questions, and the maxims offer no guidance. The maxims don’t mean anything, in and of themselves. They merely function as a reminder for us, in a particular situation, to take up the difficult questions of deciding what, in that situation, they ought to mean.

Giving people their due – treating them equitably, whatever equity might require in a given case – these are the aspirations of justice as a virtue. Justice, then, is primarily about what we owe to each other. What We Owe to Each Other, is, in fact, the title of a 1998 book by philosopher Tim Scanlon.

In part 2, we shall take a glance at Scanlon's contribution to this question, and move from justice as virtue of individuals to justice as a virtue of social institutions.