Beyond Justice

The Canadian Charter tells us (s.24) that if we think our rights have been violated, we can apply for ‘such remedy as the court considers appropriate and just in the circumstances.’ Does ‘just’ add anything to ‘appropriate’? Or is it, like ‘cease and desist’, only a bit of legal belt-and-braces?

Sometimes we do think of justice as mere propriety. For something to be unjust is for it to be out of kilter, morally speaking. On this way of looking at things, we can say that destroying the environment, abusing children, breaking promises, and torturing people are all unjust. They are all—to put it mildly–morally inappropriate, out of kilter. Aristotle called this ‘general justice’. 

But we also have another way of thinking. You see it in this example. Someone exclaims, ‘The newspaper has reported a horrific injustice.’ You ask, ‘What?’ She replies, ‘Children have been raped by priests!’ What is odd here is not merely that ‘injustice’ sounds far too mild to describe child-rape. It is that it is off-focus. Rape is not an injustice. It is a violation of human rights, a barbarity, an inhumanity, a sin, and a lot more besides. ‘Unjust’, seen this way, is not merely a synonym for ‘inappropriate’ or even ‘wrong’. It adds something to that judgment. Injustice is a special way that an action or policy may be inappropriate or wrong. Had the newspaper story read, ‘Women paid two-thirds of men’s wages for the same work,’ or ‘Judges go easy on firms in hope of corporate directorships’ then we would be talking about injustices. The sense of a surprise ending to the story would evaporate.

So what’s the difference? On this second way of thinking–Aristotle called it ‘particular’ justice—we are concerned with the allotment of benefits and burdens among people, either as compared with each other or as compared with what a role or their desert requires. That is why it sounds weird to call rape ‘unjust’. Not wrong exactly, but weird all the same. Sexual assault is not wrong because it is an inappropriate allocation of burdens, nor because it is the sort of thing no man (or priest) should do, nor even because it is undeserved (as it always is). Rape is just plain wrong. So something can be wrong yet not unjust. And, conversely, something can be OK (‘appropriate’) but not just—for instance. when neither allocation nor desert is at issue. 

Understood in this way, justice is not the only virtue to which law should aspire, and we have good reason to mention it separately from moral appropriateness in general. What then are the other virtues law should live up to? Here are three of them—I’ll return to each in later columns. 

Humanity

Was US and British torture at Abu Ghraib and Bagram unjust? No; but it sure was inhumane. Its filth permanently stains the honour of those countries. Is the Israeli siege of Gaza unjust? Possibly not. But it is a grotesque inhumanity. Such things are wrong, not because torture or collective abuse of a group target the wrong folks, or target them in the wrong amount, or out of proportion to their deserts. They are wrong because they violate the dignity of the victims and they degrade the humanity of the perpetrators. That’s why we often think of them as offenses against humanity, and why international law prohibits them. Of course, they are unjust in the first, general, sense of the term: in Iraq and Israel things are very gravely out of kilter, morally speaking. So it is not a linguistic error to call them injustices. All the same, that gets the focus quite wrong. Much of human rights law, including international humanitarian law, has as its ambition, not securing justice, but preventing thus kind of inhumanity and barbarity.

Stewardship

Is BP’s disaster in the Gulf an injustice? Is the implicit subsidy that Canadian and the US governments pay automobile drivers unjust? Probably not. But it is a violation of our duties of stewardship. We don’t own the natural environment; we have an obligation to look after it. Are you tempted to say that these things are unjust to future generations, that our generation is using up more than our fair share of the world’s resources? That’s one way of looking at it. Still, it is unconvincing, for there can be no injustice ‘in the air’. When there is an injustice there is always someone to whom the injustice is done. Now there is the catch. Whether there are any future generations at all, and who and how many they may be, depend on our current decisions about resources, about the size of our families, and so on. It would not be unjust to anyone if our generation (or the next one) decided to call it quits and have a one big final party, leaving a mess for no one to clean up. Yet that would be to arrogate to ourselves a power we should not have. Why are we so important, in the universal scheme of things? Even if there is no one to follow us, and even if our followers are an indeterminate group, we are not entitled to wreck everything. For that reason, environmental regulations, among others, answer not to the demands of justice but to the demands of stewardship. 

Fidelity

Let’s end with an example from private law. Suppose that A contracts in the ordinary way for a service from B. A pays upfront, then B finds a more lucrative way to spend his time. Why is A entitled to anything by way of damages for breach? Does that somehow give people their just deserts? Not necessarily. Does it literally undo the wrong? No. Does it secure a fair distribution of wealth, or an efficient one? I have no idea, and if you are honest neither do you. (Maybe A should have been smart enough not to contract with a shady character like B; maybe A (and others like A) should have bought beach-of-contract insurance, instead of going crying to the courts every time they cut a bad deal.) Yet we still think it wrong of B not to compensate A. Why? Consider another case. The US and Canada decide to subject certain trade disputes to a WTO mechanism, and the mechanism finds the US persistently in breach over softwood lumber. The US decides to ignore the ruling, knowing it has the economic clout to do so and that political expedience requires it. Is that unjust in our second sense? It’s wrong, but beyond that I’m not confident. It depends on what one thinks of the dispute-settlement mechanism, and I’m not sure what to say about that. But in both the contract case and the treaty case one thing is crystal clear: the parties in breach are going back on their word. They are not being faithful to what they said they would do. They flagrantly violate one of the oldest rules of the law: pacta sunt servanda. In upholding this rule, the law is not aiming at justice; it is not worrying about who has got what and one what grounds. It is worrying about the fact that we are often tempted to be unfaithful to our word, and that is wrong, both in itself and for its results.

Humanity, stewardship, and fidelity. These three are all as much within the province of law as is justice. Which is not to deny that justice is important. It is—in its place. But justice is not the only thing law should aim at, and in some areas it is not even the main thing. So there is, after all, a reason to single out justice for special mention, especially when we are worrying about the allotment of benefits and burdens amongst people. Courts often have to worry about that—indeed, every case produces both a winner and a loser, a benefit and a burden—so it is not surprising that courts worry a lot about justice. But when we make law, whether by legislation or by development of the common law, we must often be guided by other aspirations. Not only by justice, but also by what is morally appropriate, in all its different forms. I will return to these—the legal ideals that lie beyond justice—in future columns.