Abstract
In this article I am concerned with reasoning about matters of justice. There is no doubt that justice-reasoning is a significant mode of ethical reasoning and its importance is therefore generally accepted. But there is a considerable debate concerning the role formal justice can play in reasoning about justice. In this paper, I first provide an analysis of formal justice. I then show that the concept of formal justice is identical to one notion of fairness and I illustrate the function of formal justice in reasoning about issues of fairness. In the third section, I argue that formal justice is an essential component of justice tout court and I demonstrate its value for understanding and assessing reasoning about matters of justice. The overall result of this investigation is that formal justice is an important notion that has a special function in moral thinking, which has not been sufficiently appreciated in the literature.
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Notes
This paper focuses on questions related to distributive justice, but my discussion pertains to contexts of justice which are non-distributive in character (e.g. retributive justice), too.
For example, the notion of formal justice has been employed in discussions on organ donation (Den Hartogh 2010; Wilkinson 2007), the treatment of elderly people (Kappel and Sandøe 1994; McKerlie 2007), issues of clinical research (e.g., Ballantyne 2008), and the distribution of scarce health care resources (Beauchamp and Childress 2009). See also Holtug (1999) who explores the treatment of genetic diseases and the study of Nilstun et al. (2008) on Cesarean delivery on maternal request.
The principle, which has also been named ‘maxim of formal justice’ (Lyons 1966) and which is by economists known as the principle of horizontal equity (see Broome 1990), originated in ancient Greek philosophy. Aristotle states it as follows: ‘Things that are alike should be treated alike, while things that are unlike should be treated unlike in proportion to their unlikeness’ (NE 1131a–1131b).
For example, ‘like cases will be decided similarly’ (Sweet 2006, p. 642).
I define here formally just treatment of persons. This does, however, not commit me to the view that only persons can be treated (un)justly (see Kleinig 1971). Throughout this paper, I assume that the treated persons are others. Whether one can act (un)justly towards oneself has been discussed by Aristotle (NE, bk. V, ch. 9). Obviously, one can also define the notion of being just (see Aristotle NE, bk. V), but my focus in this essay is not on the virtue of justice but on just conduct.
Be it noted that the definition has the logical structure of a biconditional and that the definiens is a conjunction of two conditionals.
Another commonly employed principle is the principle of need, ‘which declares that social resources, including health care, should be distributed according to need’ (Beauchamp and Childress 2009, p. 242). It is worth noticing that people can be equal on one standard of justice but unequal on another. A may be equally needy as B, but B may be more deserving than A according to the principle of contribution. How to resolve such conflicts of justice is too big a question to go into here.
A broader discussion of the notion of desert can, for instance, be found in Miller (2001, pp. 131–155).
It is worth noticing that inequality cannot be defined as the negation of equality. If it was its contradiction, any equal treatment of persons who do not deserve this treatment would be formally unjust (e.g., giving the same amount of money to some undeserving beggars). Inequality (in the relevant sense) of two persons requires that they deserve to be treated differently or that they deserve the same treatment to a different degree. (I shall come back to the concept of inequality in the subsequent sections.) From the definitions of equality and inequality it follows that two persons are neither equal nor unequal if they do not deserve to be treated in a certain way (a case does then not belong to the realm of justice).
The example has been adapted from Hoffman (1993, p. 171).
As this example of institutional justice shows, my account of justice is relevant also to Rawlsians who focus primarily on institutional justice and may reject the idea of non-institutional justice. I would like to thank an anonymous reviewer for this journal for alerting me to this.
It is, however, not always clear what equal treatment of people requires in the circumstances. In the case of distribution of indivisible goods, it is not possible to distribute a good to all who deserve it. For instance, if two patients equally deserve a donated heart they cannot receive it both. It has been suggested that in such cases equal treatment may require that the good be distributed by lottery. Equal treatment consists then in giving to each person at least an equal chance (see Broome 1990).
It has also been dubbed procedural fairness (Sunstein 2006), formal fairness (Hooker 2005), and comparative justice (Feinberg 1974; Hoffman 1993; Montague 1980). It should be noted, however, that Feinberg’s concept of comparative justice is not identical to comparative fairness, although both notions are closely related.
The notion of comparative fairness is not only important in practical reasoning. For a theological discussion that is based on it, compare Schoenig (1999).
See McGrath (2012).
There are, of course, many arguments about unfair treatment that are based on perceived disproportionate treatment. Consider this example from medical research. A phase III trial of a new surfactant for treatment of respiratory distress syndrome (RDS) put some of the infants (research subjects) in the placebo arm of the trial, and it was argued that ‘the use of a placebo control arm, when proven treatments exist and are the standard of care in wealthier communities’ is unfair (Snyder 2012, 252). It was considered unfair because the researchers and their sponsors would benefit considerably from the trial, but ‘the members of the communities participating in the trial would benefit very little by comparison’ (Snyder 2012, 252). Such arguments from disproportion are difficult to assess because, as we have seen, the notion of proportionate treatment is unclear.
Contrary to how it might appear at first sight, I am not assigning the burden of proof to those who invoke unfairness (or, in the next section, injustice). My view is rather that the burden of proof falls to the one making a claim about (un)fair or (un)just treatment. That is, if someone claims that he has been treated unfairly, it is up to him to provide a reason; and if his opponent claims that the treatment was fair, the burden of proof for this claim rests on him.
See the discussion of standards of material justice in the first section.
Feinberg’s example has been slightly adapted. In particular, Feinberg uses the term ‘comparative justice’ instead of ‘formal justice’ or ‘comparative fairness’.
That formal justice is an essential constituent of the notion of justice (in the narrower sense that concerns us here) is now almost a commonplace. For example, Kane (1996, p. 379) holds that formal justice is ‘at the heart of the idea of justice’, Winston (1974, p. 5) regards formal justice as ‘central to the concept of justice’, Lyons (1984, p. 581) assumes that justice ‘at least includes’ a formal aspect, and Weinberger (1994, p. 20) claims that formal justice is ‘an inalienable aspect of our concept of justice’.
The validity of this argument can easily be verified if we formalize it as follows (where ‘Jx’ expresses the property of being treated justly; ‘Dx’ expresses the property of receiving one’s deserts; and let us use ‘Mx’ for ‘x is materially just’ and ‘Fx’ for ‘x is formally just’): (∀x)(Jx → Dx), (∀x)(Mx ↔ Dx), ¬(∃x)(Jx ∧ ¬Fx) ⊨ (∀x)(Jx → (Mx ∧ Fx)).
There exists an interesting logical relationship between material justice and formal justice: Any situation in which the treatment of each person is materially just is a situation in which their treatment is formally just (but the converse does not hold). It is not hard to see why. If every member of a group is treated materially justly then all receive their dues. If everyone receives their dues, equals are treated equally and unequals are treated in proportion with their inequality. Their treatment is thus formally just. Contrary to how it may appear to some authors (e.g., Hoffman 1993; Nathan 1971), this does not render the notion of formal justice redundant because we often face situations in which the treatment of only some people is materially just or where nobody is treated materially justly, but some or all are treated formally justly.
One might hold that the treatment of Jones was unjust because, as human beings, Smith and Jones are equals, despite their different height. But as we already know, this requires explaining why the common property of being human is relevant, i.e., renders them equally deserving.
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Spielthenner, G. The Role of Formal Justice in Ethical Reasoning. Res Publica 21, 77–92 (2015). https://doi.org/10.1007/s11158-014-9264-8
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DOI: https://doi.org/10.1007/s11158-014-9264-8