The recent news about Martin Grossman’s execution in Florida and the activism that surrounded it (e.g., here, here & here) struck a chord with me. There’s plenty to say about capital punishment, ethically, politically, religiously – and most of it has been said already.
One of the common cases made against capital punishment is that it is too-often enforced unequally along racial and socio-economic lines. In response to this, Ernest van den Haag, in his famous article, “In Defense of the Death Penalty” (sorry, can’t find the article online), argues that unequal justice is nevertheless justice, at least as applied to the individual being executed. The problem with unequal justice, though, isn’t that it’s unjust; it’s that it’s unequal.
As van den Haag writes:
If the death penalty is morally just, however discriminatorily applied to only some of the guilty, it remains just in each case in which it is applied.
. . .
[U]nequal justice is still justice. The guilty do not become innocent or less deserving of punishment because others escaped it. Nor does any innocent deserve punishment because others suffer it. Justice remains just, however unequal. While both are desired, justice and equality are not identical. Equality before the law should be extended and enforced – but not at the expense of justice.
There’s one sense in which unequal justice is clearly justice. If Smith is convicted of murder and if the death penalty is justified for all murderers, then it follows that Smith deserves death regardless of how many murderers are acquitted. In fact, without this assumption, most of our penal system would be unjustified. The guilty are often acquitted (our system is designed to acquit the guilty) and those convicted often receive lighter sentences for a variety of reasons.
Ronald Dworkin, in Law’s Empire, develops a theory of political compromise that I think is relevant to van den Haag’s “unequal justice is still justice”. Modern democracy thrives on compromise. It seems like the obvious appropriate way to accommodate varying political values among a state’s citizenry. But Dworkin demonstrates that a certain kind of political compromise would be unacceptable. He offers the following puzzle.
It would seem to follow from our convictions about fairness that legislation on these moral issues should be a matter not just of enforcing the will of the numerical majority… but of trades and compromises so that each body of opinion in represented… Do the people of North Dakota disagree whether justice requires compensation for product defects that manufacturers could not reasonably have prevented? Then why should their legislature not impose this “strict” liability on manufacturers of automobiles but not on manufacturers of washing machines? Do the people of Alabama disagree about the morality of racial discrimination? Why should their legislature not forbid racial discrimination on buses but permit it in restaurants? Do the British divide on the morality of abortion? Why should Parliaments not make abortion criminal for pregnant women who were born in even years but not for those born in odd ones?
Dworkin argues that our basic sense of justice and fairness should justify this kind of “checkerboard” legislation insofar as it seems to satisfy the important democratic principle of compromise. Clearly, though, these examples strike most of us as failing in some fundamental sense, but what exactly is the problem? Dworkin’s argues that
a state that adopts these internal compromises is acting in an unprincipled way. . . . The state lacks integrity because it must endorse principles to justify part of what it has done that it must reject to justify the rest.
Reasonable people can disagree about the appropriate way to apply Dworkin’s notion of integrity in law (and I’m not sure how far I would follow him here) but it strikes me as obvious that he has put his finger on a powerful intuition about law and politics.
Justice and equality may not be identical, as van den Haag asserts, but they influence each other. Justice requires equality, or at least prohibits systematic inequality. Imagine a state that, in an effort to compromise between death-penalty supporters and opponents, passes legislation providing that all and only convicted murderers born in months with 30 days shall be put to death. Would we say in this case that “unequal justice is still justice”? And if not, how does it differ fundamentally from the kind of case Van den Haag has in mind?
Under the imagined legislation, justice is only partially served. Although the state may justly punish a convicted murderer, it would, in doing so, behave in a way that undermines its very ability to mete out justice because systematic inequality is, in and of itself, unjust.
I hope the Dems lose the house in November. I don’t hate them or anything i just think that government works best when both parties have some power. In my lifetime I think the Government was working best during Reagans and Clintons presidencies and were at its worst during Obamas and Bush II’s.When one party controls everything it seems like its most corrupt and usually the other party sells its soul to the Devil to get back in power.
[…] March 16, 2010 by David Fryman The latest Philosophers’ Carnival is up at blog.kennypearce.net, featuring my post on unequal justice. […]
Why not say that there are two different notions of justice at work here? Retributive justice occurs, but distributive justice does not.
Jeremy,
I basically did say that.
But I want to go a step further. My sense is that the failure of the distributive element here somehow undermines the retributive element.
I think you might misunderstand what I was asking. I got the sense that you were thinking there’s one univocal term “justice”, and these are two components of it. Thus if you have one but not the other then you’ve got something unjust. You’ve just confirmed my sense that that’s what you meant.
I’m now presenting a different way to make sense of the linguistic data for how the word “justice” is used. There are two wholly different things that we call by that term. One has to do with equality, especially equal distribution of resources or results. The other has to do with retribution.
So given these two theories, what reasons do we have for preferring the one you hold rather than the alternative one I’m asking you to consider? I did get the sense that you held the first view and not the second. What I want to know is why we should hold such a view rather than the second view. What is common to these two meanings of justice that unites them and thus can allow us to say that it’s not justice at all if only one of them is present but the other is violated?
The reason I lean more toward the second view is that there are all kinds of situations where we have to weigh being just in one sense against being just in the other sense, and we can’t really have both. For example, libertarianism vs. socialism is exactly such a case. Socialists emphasize distributive justice to such an extreme that it’s seen as unjust if any equality of outcome occurs. Libertarians emphasize retributive justice to such an extreme that they see no positive obligations toward others, only negative rights to protect you from harm from others, and they see any public policy requiring help toward others as unjust.
Most of us are in between, but it’s easy to see how one thing we mean by “justice” limits the other thing we mean by the same term. That leads me to see it more as ambiguity between two different, independent concepts (both moral concepts, of course, so there is some relation) rather than as two different conditions both required for something to be just.
It strikes me as highly counterintuitive that the distributive and retributive aspects of justice are “two wholly different things”, as I think Dworkin’s hypotheticals demonstrate. At their core, both aspects are ultimately concerned with how individuals and groups of individuals ought to be treated by others and by the state and what constitutes a “legitimate” government action.
The notion of justice that I’m defending challenges both extreme socialism and extreme libertarianism.
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