Nature of Justice -- Cicero,

¶ … nature of justice -- Cicero, Rawls, and Nussbaum

Even long before the life and career of the ancient Roman politician and philosopher Marcus Tullus Cicero began, what constituted the nature of justice has perplexed humankind. Cicero defines the nature of justice and law as deriving from the symmetry and rationality of the world. Justice is what naturally preserves such order, in Cicero's viewpoint. In Cicero's writings, injustice is wrong because it violates the integrity of the individual human being and thus creates disorder and chaos. But what to do when the rights of the state, or the rights of the majority, come into conflict with what would be just for the minority, or the individual citizen? For example, what happens when the majority of a society of religious fundamentalists wishes to take away the rights of the minority, as posited by Martha Nussbaum, or when the majority of the population does not wish to pay taxes to provide services for the poor?

One way to reconcile the competing demands of the state and the individual has been through the ideal of the social contract. This suggests that human beings are naturally free but voluntarily cede some of their natural freedoms to the state in exchange for protection. To protect society means that sometimes the state must violate some persons rights, even the rights of the majority. In both the modern philosopher John Rawls' and Martha Nussbaum's theories of justice, social contract theory is expanded upon to examine how to better preserve justice in a modern nation, to balance the rights of the majority and the minority, and also to create a more economically balanced society.

Rawls' theory of justice, stresses that justice is not merely the greatest happiness for the greatest number of people, a devout democrat or a utilitarian might assert, although Rawls does believe that satisfying the happiness of as many people as possible, by distributing what he calls social primary goods like freedom and economic opportunity is the goal of justice. The only exception to this principle of justice is if unequal distribution of these goods will benefit the 'have-nots' of society. Like Cicero, Rawls believes that justice is based upon republican principles, or the rights of the individual, rather than upon democratic majority rules. He believes that the purpose of the modern state should be to protect the rights of the minority, and in fact that the health and goodness of a state's system of justice is often judged by how well and how effectively it protects its minority populations.

True, the point of justice cannot be to achieve a particular end, nor does the means justify the end, if the means requires the state to subvert the rights of its citizens. Rawls believes that the principles of justice entail that all citizens possess certain basic rights and freedoms, like the right to vote, think, speak, protest, and run for office. There should also be freedom from the state repossessing one's property, or engaging in unjust searches and seizes of one's property. There should also be freedom of opportunity to better one's self, and the state has a responsibility to enable all persons to enjoy such opportunities.

But while in Rawls' formulation of justice, the state has a vital role in creating social justice, this capability of the state does not mean that the state has the right to violate the first principle of justice -- in other words, unlike in a communist state, the state does not have the right to repossess and redistribute wealth in the name of creating a more equitable economic condition for everyone. Yet barring the violation of basic rights of the majority, Rawls believes that the state should try lessen the impact of disparities in wealth and income, and that sometimes this may require some inequality of redistribution like a progressive income tax system, for example to the minority. Still, the state should not violate the rights of all citizens' ability to feel safe and secure in their property. This second sense of economic justice for the poor is not found in Cicero, and is expanded upon in Martha Nussbaum's philosophy of the state's role in expanding upon human capabilities, or the capabilities for maximizing one's individual potential.

Rawls' most unique contribution to modern thought is assumed to be his concept of what he calls the veil of ignorance, or the fact that decisions about justice should be calculated by a perfectly objective person, who has no idea whom he or she is affecting when he or she is making decisions about justice in terms of the person's identity, sex, race, and the expansion of economic opportunities. Rationally, all people wish to advance their own interests, but if they no longer know the identity of whom they are advancing, they will act in a perfectly just fashion, including at times redistributing some wealth in the name of expanding opportunities for even a minority of citizens, like the poorest of society who need assistance to feed themselves, in addition to their income derived from labor.

However, while Martha Nussbaum also calls for a socially equitable system of justice, she might note that past historical circumstances mean that the impartial arbiter of Rawls' justice, operating behind the invisible veil cannot be blind to historical circumstances.

Like Rawls, Nussbaum stresses the need for social justice in economic terms. Like Rawls, Nussbaum argues that focusing on persons' functional capabilities are the legitimate social goals of a just society. Like Rawls, she redefines the ancient concept of the social contract and human equality in both economic as well as political terms, stressing that the state has a role in creating greater economic as well as political equality than exists in most nations. Like Rawls, Nussbaum's focus is also primarily individualistic, regardless of whether the person is in the majority or in the minority. The role of the state is to expand the happiness and the potential for every person to maximize their unique capabilities, not to make particular groups of persons happier, or to make the majority of the citizens happy.