Legal Theory Lexicon 018: Justice

By Lawrence B. Solum

Introduction

The connection between law and justice is a deep one. We have “Halls of Justice,” “Justices of the Supreme Court,” and “the administration of justice.” We know that “justice” is one of the central concepts of legal theory, but the concept of justice is also vague and ambiguous. This post provides an introductory roadmap to the idea of justice. Related Lexicon entries on Distributive Justice (LTL 049) and Procedural Justice (LTL 023) explore those topics in more depth. As always, this post is aimed at law students (especially first-year law students) with an interest in legal theory.

A Typology of Justice

What is justice? One way to approach this question is via a typology–a scheme that divides the general and abstract concept of justice into component parts: (1) distributive justice, (2) corrective justice, (3) political justice, (4) procedural justice, and (5) retributive justice. There are other kinds of justice as well, including rectificatory justice, transitional justice, and so forth. These may be deep and fundamental differences between different types of justice, or these categories may simply be heuristic devices. For now, let’s lay that question to the side and focus instead on a brief exposition of each of the five types of justice:

Distributive Justice

In 1971, John Rawls’s book A Theory of Justice put distributive justice at the center of philosophical discussion of justice. What is the subject of distributive justice? Even this question is controversial, but one formulation is: The subject matter of distributive justice is the distribution of the benefits and burdens of social cooperation.. The burdens of social cooperation include things like taxes and obligations to provide civic service (e.g. military service, jury service, and so forth). The benefits of social cooperation might be seen as including the resources that are produced by social cooperation, which might be represented by wealth and income. Thus, questions that might be answered by a theory of distributive justice might include:

Should the system of taxation be progressive (with a heavier burden on the wealthy than the poor)?
Should the government adopt an incomes policy (such as a guaranteed annual income) that will provide a minimum level of resources to those who are least well off?
Should the burden of military service by distributed equally (in the form of mandatory service for all citizens) or should this burden be allocated by a volunteer army and market incentives?

This list of questions just begins to scratch the surface. In the context of the law school curriculum, questions of distributive justice arise in a variety of course. In tort law, distributive justice may be the basis for the theory that one of the purposes of tort law is “risk spreading” or the just distribution of the costs of accidents. In contract law, questions of distributive justice may arise in cases involving contracts of adhesion or contracts with terms that may exploit the unsophisticated and economically disadvantaged.

Corrective Justice

Aristotle defined “corrective” or “rectificatory” justice as “justice in transactions.” That’s a good place to start. With Aristotle we might divide transactions into two categories, the voluntary and the involuntary. Justice in voluntary transactions would include the topics encompassed by contract law. Justice in involuntary transactions would include both transactions that are involuntary due to force (e.g. battery) and transactions that are involuntary due to fraud (e.g. fraud, misrepresentation, etc.).

One of the great debates in contemporary legal theory concerns the status of corrective justice. This topic is especially hot in tort theory. For example, some tort theories believe that the purpose of tort law is captured by the idea of corrective justice. Such theorists tend to believe that liability standards should be fault bases (e.g. intentional tort or negligence as opposed to strict liability) and that the purposes of tort damages is to make the plaintiff whole (and to force the defendant to disgorge wrongful gains) and not deterrence. Other tort theorists, e.g. welfarists or utilitarians, believe that corrective justice institutions should be judged solely by the consequences they produce. So a utilitarian might believe that the purpose of tort law is to produce optimum deterrence. Finally, some tort theorists believe that tort law serves the ends of distributive justice.

Political Justice

Yet another topic of justice is political justice. In a sense, this might be seen as a subtopic of distributive justice–since political rights and responsibilities can be seen as encompassed within the general category of the benefits and burdens of social cooperation. In relationship to the law school curriculum, we might say that political justice is concerned with the foundational issues of constitutional theory. Who shall have the right to vote? What power shall be allocated to local communities as opposed to nation-states? What limitations shall there be on the power of democratic majorities (e.g. individual rights & judicial review)?

Political justice shades into the closely related concept of political legitimacy—the question whether a political order has the authority to demand compliance even from those who regard it as imperfect or unjust. Whether legitimacy depends on justice, or whether a legitimate but unjust order is possible, is itself a deep question. For more on legitimacy and its relationship to justice, see Legal Theory Lexicon 046: Legitimacy.

Procedural Justice

Another form of justice is “procedural justice.” The very existence of this category is controversial. Some theorists argue that the only the outcomes of procedures count. But this is not the universal view. Some theorists believe that procedures are important for reasons that are not reducible to a concern with outcomes. One helpful typology was provided by Rawls, who distinguished between perfect, imperfect, and pure procedural justice.

Perfect procedural justice assumes that we have an independent criterion for the correctness of outcomes. For example, a correct outcome in a criminal case would be “freeing the innocent and convicting the guilty.” We have perfect procedural justice if the procedure guarantees the correct outcome. In other words, perfect procedural justice requires 100% accuracy.
Imperfect procedural justice. Of course, in the actual world, most procedures fall short of 100% accuracy. Moreover, the more accurate a procedure is, the more expensive it is likely to be. Imperfect procedural justice acknowledges these facts and therefore conceives of procedural justice as a fair balance between the benefits of accuracy and the costs of procedure.
Pure procedural justice is based on the denial of the premise that we have an independent criterion for a correct outcome. We have a case of pure procedural justice if the procedure itself provides the criterion for judging the justice of the outcome. Rawls himself doubted there were many cases of pure procedural justice. He did see one case–a fair bet. With a fair gamble (e.g. a roll of unloaded dice), the outcome doesn’t matter.

In the context of the law school curriculum, questions of procedural justice arise in connection with procedural dues process (in constitutional law, administrative law, and procedure) and especially in the courses in civil and criminal procedure.

Retributive Justice

Criminal law theory is especially concerned with the idea of retributive justice. The core idea is that punishment is best understood as retribution, and the one implication of this view is that criminal punishments must be proportionate to the severity of the offense.

A second implication of a retributivist theory of criminal law is that punishment must be deserved and hence that criminal sanctions should be reserved for intentional wrongdoing. This simple idea has a host of consequences. For example, it suggests that each crime must be predicated on intentional wrong doing–and hence that strict liability offenses have no place in the criminal law. Another set of implications concern defenses; a retributivist conception of criminal law implies that any defense that negates the blameworthiness of the offense ought to be recognized.

In criminal law theory, retributive justice accounts compete with alternatives, especially with consequentialist or utilitarian accounts, which emphasize the forward-looking (ex ante) consequences of punishment and not the backward looking (ex post) idea of blameworthiness.

Justice and Moral Theory

Thinking about each of these five types of justice is connected with more general views about moral and political theory. Each of the three important families of normative moral theory (consequentialist, deontological, and aretaic) connects in interesting ways with thinking about justice:

Consequentialist Ideas About Justice There are many different forms of consequentialism. In moral theory, the most familiar form is utilitarianism. In law, the emphasis lately has been on welfarism. Most consequentialist theories do not see justice in any of its forms as truly distinctive. For example, for act utilitarians the rightness or wrongness of an action depends on whether that action (as opposed to the alternatives) produces the most utility. Thus, the best distribution of resources is the one that maximizes utility, and the best system of tort law is the one that utility. There are different ways of expressing this idea. One expression maintains that consequentialists do not place any independent value on justice; another way of putting it is to say that for consequentialists, justice is the production of good consequences.
Deontological Ideas About Justice By way of contrast, deontological theories have a natural affinity for the idea that justice serves as an independent criterion for the rightness and wrongness of actions. Thus, it is a characteristically deontological position to maintain that unjust actions or institutions cannot be justified on the ground that they would produce good consequences. Thus, deontologists might say that it would be unjust and hence impermissible to punish an innocent persons–even if the net long-term effect of that action were to produce good consequences.
Aretaic Ideas About Justice From the view point of aretaic theory, justice is primarily a virtue, an excellence of human character. One of the most difficult problems for virtue ethics has been the development of an adequate theory of the virtue of justice. One view is that justice is the disposition to take neither too much nor too little for one’s self. Another view is that justice is the disposition to act in conformity with social and legal norms, tempered by equity. Yet a third view is that the virtue of justice is simply the disposition to act in accord with the right theory of what a just action is. Aretaic ideas about justice have been extended to legal theory in the form of virtue jurisprudence, which applies virtue ethics to questions about good judging, just legal institutions, and the nature of law. For more on this topic, see Legal Theory Lexicon 031: Virtue Jurisprudence.

Justice and Law

What is the relationship between law and justice? One fundamental question is whether there is an essential connection between legal validity and justice. Natural law theory has traditionally held that only just laws are genuinely legally valid; legal positivism denies this, maintaining that legal validity is a matter of social fact, not moral merit. Yet even legal positivists typically agree that the laws ought to be just. On either view, theories of justice guide the normative evaluation of law and legislation.

Another Approach: Justice as the Virtue of Lawfulness

The accounts of justice surveyed above—distributive, corrective, and procedural—share a common structure: they treat justice as a moral standard that stands apart from, and is used to evaluate, the law. But there is an older and importantly different tradition that understands justice as a virtue, specifically the virtue of lawfulness. This tradition traces to Aristotle’s account of justice in Book V of the Nicomachean Ethics, where he distinguishes between general justice (justice as lawfulness) and particular justice (the familiar forms of distributive and corrective justice). General justice, Aristotle held, is “complete virtue in relation to another”—the disposition to act as the law directs, not merely because the law compels compliance but because lawfulness has become a settled feature of one’s character. On this view, the just person is lawful: law is not simply a constraint on justice, but is constitutive of what just action requires. Justice as lawfulness does not collapse into legal positivism—it does not say that whatever the law requires is thereby just—but it does insist that, in a reasonably just society, law and virtue are deeply connected rather than sharply opposed.

This understanding of justice has important implications for virtue jurisprudence. As the Legal Theory Lexicon’s entry on Virtue Jurisprudence explains, a virtue-centered theory of judging defines a lawful decision as one that would be characteristically made by a virtuous judge acting from the judicial virtues—and counts “legally correct” and “lawful” as synonymous in that context. The virtue of justice is central to this account. A judge who possesses the virtue of justice is not merely one who picks the right outcome by applying a pre-legal moral standard; she is one whose character is shaped by a disposition to act lawfully, to give each party what the law provides, and to hold officials—including herself—to the general rules. On this approach, the gap between law and justice is narrower than the other conceptions surveyed above suggest: justice, properly understood as a virtue, already has law built into it.

Conclusion

Contemporary legal education is, in a sense, all about justice. Natural law, legal positivism, and legal realism all go beyond the black letter law and ask the question, “What should the law be?” Law students quickly discover that their instructors are frequently more interested in questions like, “Is that a just rule?” than in questions like, “What is the rule?” As you continue your study of legal rules, you can begin to ask questions like: “Does this rule address a question of distributive, corrective, political, or procedural justice?” “Is the rule in the case (or statute or constitutional provision) just or unjust?” “What theory of justice underlies the reasoning of the court?”

Related Lexicon Entries

Other Resources on the Web

Julian Lamont & Christi Favor, Distributive Justice, Stanford Encyclopedia of Philosophy (2007).

Mark LeBar & Michael Slote, Justice as a Virtue, Stanford Encyclopedia of Philosophy (2016).

Alec Walen, Retributive Justice, Stanford Encyclopedia of Philosophy (2016).

Jules Coleman, Scott Hershovitz, and Gabriel Mendlow, Theories of the Common Law of Torts, Stanford Encyclopedia of Philosophy (2015).

Link to the Most Recent Version of this Lexicon Entry

Legal Theory Lexicon 018: Justice

(Last modified on April 30, 2023.)