What is Justice?

05 May 2015 Dr Gerard Kilroy Details Every child seems born with an innate sense of justice. “It’s not fair”, springs early to the lips, and not always from self-interest. Plato thought justice was essential “ if a state is to exist at all” (Protagoras, 324.d). St Augustine argued that “If you take away justice, what is a state but a large group of bandits?” (Remota itaque justitia, quid sunt regna nisi magna latrocinia, Civ. Dei. IV.4). But what is this essential quality, and why does it seem to occupy a special place, acknowledged by all societies, in the human consciousness? One aspect, much discussed at the moment, is the fair distribution of wealth. John Rawls, in his influential A Theory of Justice (revised in 1999), argues that inequality makes for an unhappy society: that members of a society will accept inequalities only if they are rationally based and if they are not too extreme. Radical injustice, a manifestly unjust distribution of wealth between individuals and nations, is clearly a major cause of war, social unrest and migration. Access to legal justice might seem straightforward, but ‘the bright day of justice’ has not yet dawned, even where Magna Carta is being celebrated. With a doubling of the prison population to a figure of 85,000, and many asylum seekers detained indefinitely without trial, we may need to examine the purposes of punishment. Have retribution and deterrence swamped reformation? Are there some crimes that defy limits of time? Our inability to protect those drowned in a growing tide of barbarous anarchy challenges our notions of international justice, as well as our sense of global awareness. As we reflect on our sense of powerlessness, we ask again who is our neighbour. What is so special about justice? Wine will be available at a reduced price from 7.15 p.m., and the discussion, open to all, will start at 7.30 p.m. Entrance, as always, will be £2 for members of BRLSI, and £4 for non-members. BRLSI: [email protected] 01225 312084 What is Justice? In justice as fairness the original position of equality corresponds to the state of nature in the traditional theory of the social contract....The original position is, one might say, the appropriate initial status quo, and thus the fundamental agreements reached in it are fair ... Justice as fairness begins, as I have said, with one of the most general of all choices which persons might make together, namely, with the choice of the first principles of justice... I shall maintain that the persons in the initial situation would choose two rather different principles: the first requires equality in the assignment of basic rights and duties, while the second holds that social and economic inequalities, for example inequalities of wealth and authority, are just only if they result in compensating benefits for everyone, and in particular for the least advantaged members of society. The intuitive idea is that since everyone’s well-being depends upon a scheme of cooperation without which no one could have a satisfactory life, the division of advantages should be such as to draw forth the willing cooperation of everyone taking part in it, including those less well situated. John Rawls, A Theory of Justice, 2nd edn (Oxford, 1999), pp. 11–13. We now have a prison service with rising levels of self-harm, self-inflicted deaths and violence against staff and inmates, the perverse dismantling of the probation service with one in three officers set to be made redundant in the newly privatised services (plural) and disarray in our courts. Politicians speak about access to justice as an optional extra that we simply cannot afford. But the introduction of legal aid, replacing the ad hoc poor law scheme of the 1920s and 1930s, came during a period of true austerity in the wake of the second world war. Access to justice is more than just a public good which we can choose to fund generously when our economic fortunes allow. Without access to justice for all, inequalities take on a more dangerous edge which threatens the legitimacy of not just the justice system but our democracy. Letter to The Guardian, 2 May 2015, from Sir Anthony Hooper, Helena Kennedy QC, Lord Ramsbotham et al. The aims which penal theory has traditionally held out as proper objectives to be pursued in sentencing include retribution, deterrence, reform ... The recent history of the philosophy of punishment has seen a shift ... towards retributive theories of punishment. A parallel trend can be observed in the recent history of penal policy, which has seen a shift ... from the concerns of deterrence, reform, and social defence toward the more retributivist concerns of just deserts or denunciation. Anthony Duff & David Gardland, ed., A Reader on Punishment (Oxford, 1994) On 13 March 2015, the prison population stood at, 86,564. This is double the figure in 1980, when it was 42,264. England and Wales had 153 prisoners per 100,000 population in 2010, the second highest rate in Western Europe, below Spain. The US had the highest rate in the developed world (731) while Iceland (52) had the lowest. The average prison population has increased on average by 3.6% in each year since 1993. The number of offenders in prison reached its current record high of 88,179 prisoners on 2 December 2011, when around 900 prisoners were being held for public disorder offences in the immediate aftermath of the disorder of the riots in England in August 2011. Prison Population Statistics, House of Commons Library, SN/SG/4334.