Justice Comme Justice

The Magna Carta—a landmark English charter that had given certain liberties to Englishmen in the 13th century—reads: “Nulli vendemus, nulli negabimus aut differemus, rectum aut justitiam,” or in English, “To no man will we sell, or deny, or delay, right or justice.” From what the Magna Carta mandates, it is obvious that the charter considers justice to be of superlative import.

But what, exactly, does justice mean?

William Shakespeare put it poetically in King John:

“Well, whist I am a beggar, I will rail
And Say there is no sin but to be rich;
And being rich, my virtue then shall be
To say there is no vice but beggary.”
(King John, II. i. 593-596)

From this we can observe that justice, like beauty, is largely in the eyes of the beholder. It is a disputed virtue, and thus holds great relevance in public discussion for the ideals of justice that imbue our social institutions must first be agreed upon by the people.

In Japan, justice has until recently been seen as a cold virtue, and most Japanese affiliated justice with retributive justice (lex talionis). In addition, justice has also been viewed with some degree of skepticism, and a considerable number of people hold justice in high regard because they associate it with hero’s justice—namely, that the strong define justice as they see fit.

But much of these previous sentiments have given way to renewed discourse upon the arrival of Michael Sandel—a Harvard professor of political and moral philosophy—to Japan last year. His lectures at Saunders Hall at Harvard enjoyed a strong viewership, and NHK, a Japanese media company, invited him to deliver a lecture at The University of Tokyo on August 25th last year.

By using simple case studies that present moral dilemmas, Sandel forced the participants in his lecture at The University of Tokyo to face their own subjective conceptions of justice. One particular example Sandel uses is the flute.

Sandel is not alone. Amartya Sen—an authority on normative economics and a recipient of a Nobel Peace Prize in Economics—uses the “flute example” in his book The Idea of Justice to present a common moral dilemma:

“Let me illustrate the problem with an example in which you have to decide which of the three children—Anne, Bob and Carla—should get a flute about which they are quarreling. Anne claims the flute on the ground that she is the only one of the three who knows how to play it (the others do not deny this), and that it would be quite unjust to deny the flute to the only one who can actually play it. If that is all you knew, the case for giving the flute to the first child would be strong.

In an alternative scenario, it is Bob who speaks up, and defends his case for having the flute by pointing out that he is the only one among the three who is so poor that he has no toys of his own. The flute would give him something to play with (the other two concede that they are richer and well supplied with engaging amenities). If you had heard only Bob and none of the others, the case for giving it to him would be strong.

In another alternative scenario, it is Carla who speaks up and points out that she has been working diligently for many months to make the flute with her own labor (the others confirm this), and just when she has finished her work, ‘just then,’ she complains, ‘these expropriators came along to try and grab the flute away from me’. If Carla’s statement is all you had heard, you might be inclined to give the flute to her in recognition of her understandable claim to something she had made herself.” (p.13)

Sen illustrates a divisive issue with great clarity; the case for all three of them seem strong. So then, how would this problem be framed in academic terms?

“Bob, the poorest, would tend to get fairly straightforward support from the economic egalitarian if he is committed to reducing gaps in the economic means of people. On the other hand, Carla, the maker of the flute, would receive immediate sympathy from the libertarian. The utilitarian hedonist may face the hardest challenge, but he would certainly tend to give weight, more than the libertarian or the economic egalitarian, to the fact that Anne’s pleasure is likely to be stronger because she is the only one who can play the flute.” (p.13)

We now see that egalitarians, libertarians, and utilitarians, who each base their reasoning on impartial, non-arbitrary claims, would be unable to reach a shared resolution to this problem.

In order to overcome such problems, Sen says, thinkers such as Adam Smith and John Rawls have advanced unique notions of impartiality. Smith, in his The Theory of Moral Sentiments, draws upon the notion of an ‘impartial spectator’:

“In solitude, we are apt to feel too strongly whatever relates to ourselves… The conversation of a friend brings us to a better, that of a stranger to a still better temper. The man within the breast, the abstract and ideal spectator of our sentiments and conduct, requires often to be awakened and put in mind of his duty, by the presence of the real spectator: and it is always from that spectator, from whom we can expect the least sympathy and indulgence, that we are likely to learn the most complete lesson of self-command.” (The Theory of Moral Sentiments, III. 3.38, p. 153-154)

Sen calls Adam Smith’s approach one of open impartiality that relies on enlightenment relevance. In contrast, John Rawls employs closed impartiality that relies upon membership entitlement:

“My aim is to present a conception of justice which generalizes and carries to a higher level the familiar theory of the social contract as found in say, Locke, Rousseau, and Kant.” (A Theory of Justice, p.10).

Both Sen and Rawls make a committed attempt to overcome divisive conceptions of justice. In this regard, the study of justice is one that requires deliberation, and must remain a continuous and arduous process. Sen concludes by saying,

“To ask how things are going and whether they can be improved is a constant and inescapable part of the pursuit of justice.” (The Idea of Justice, p.86)

The pursuit of justice is a continuous affair that must be deliberated by anyone who seeks to grasp justice comme justice—or justice as justice. Without a deliberative process, we would be putting an honorable virtue at serious risk of falling to something of vulgar value.

//By Ryo TAKAHASHI

2 Responses to “Justice Comme Justice”

  1. Ajikan 2011 says:

    Takahashi-san, thank you for the elaboration on the justice concept and the presentation of the flute scenario and I’d like to apologize in advance for the lengthy message. I’m wondering, which child would you choose, if you had to pick just one? I mean, a scheme could possibly be creating for the sharing of the flute by rotation, in which case you’d have to create a hierarchy of who gets priority over the flute, but let’s pretend that only one can be chosen; which would you pick?
    I think I would immediately favor the position of the creator of the flute, because of the effort spent and laid to waste by the thieves. I don’t see the three opinions as equal. I see the “libertarian” position as one reached through empathy with the creator’s ordeal and as more realistic than the other two. The egalitarian position is quite idealistic in my opinion in that the poor child has done nothing to earn the flute and is claiming it on the basis of his birth into poverty. The utilitarian position is quite besides the point because that child would gain the most from doing no work at all and needless to say living in a world guided by that imbalance of effort/pleasure would take us back to the kingdoms of the dark ages. In other words I see the the deciding factor being that two of the opinions are from certain schools of “Idealism” and one is decidedly more practical. What is your opinion?

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