Friday, May 20, 2005

Is Justice Created or Discovered?

Does justice require getting a fair result, or is it enough to apply a fair procedure? Compare a lottery to a criminal trial. There is no independent standard against which to assess the outcome of a lottery - we cannot say that a particular ticket deserves to win - all that matters is the process. But in a criminal trial, there is an independent standard of justice that we aim at: we want to convict the guilty, and acquit the innocent. The perfect jury's deliberations achieve the just result, whereas the perfect lottery's procedure constitutes its fairness. Which of these models best reflects the nature of distributive justice?

I previously suggested that the veil of ignorance would be an appropriate procedure to constitute justice. But on second thoughts, the substantive approach seems more principled. That way, there is an independent standard of justice for our procedures to aim at - we might say the just result is 'discovered' rather than 'created'. The procedures may still serve as useful heuristics though, as Ronald Dworkin illustrates through his poker analogy:
Suppose that you and I are playing poker and we find, in the middle of a hand, that the deck is one card short. You suggest that we throw the hand in, but I refuse because I know I am going to win and I want the money in the pot. You might say that I would certainly have agreed to the procedure had the possibility of the deck being short been raised in advance. But your point is not that I am somehow committed to throwing the hand in by an agreement I never made. Rather you use the device of the hypothetical agreement to make a point that might have been made without that device, which is that the solution recommended is so obviously fair and sensible that only someone with an immediate contrary interest could disagree. Your main argument is that your solution is fair and sensible, and the fact that I would have chosen it myself adds nothing of substance to the argument. (Dworkin, 'The Original Position', p.18. Link added!)

So, if we reject purely procedural justice, what sorts of substantive results should we require? I think it will come down to the notion of equal concern, however you choose to interpret that. (Follow the link for details.)

As always, I'm curious to hear what others think of these issues, as I'm pretty new to all this stuff and still in the process of working out my own thoughts. (Say, I wonder if good philosophy is a procedural or substantive matter? Heh, I'm more tempted to go procedural on that one, actually.) So, what's the verdict: is distributive justice substantive or procedural?


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