H418/03, H418/04 - Meanings and theories of justice

What justice asks

Calling a result just means offering a reason why it is fair or right, rather than merely saying that we like it. Legality asks whether the applicable law permits something; justice asks whether the rule or result is defensible. A valid law can be criticised as unjust, and a sympathetic person can lose a legally sound claim.

Different kinds of justice ask different questions:

These categories overlap. Compensation can correct a loss while an expensive procedure prevents the injured person obtaining it. Restorative work may accompany a criminal sentence; it does not automatically remove liability or give a victim control over the verdict. Punishment, compensation and restoration have different purposes.

Formal equality means applying the same standard to people in relevantly similar positions. Substantive equality asks whether different starting conditions require different treatment. Giving everyone a printed form is identical treatment; an accessible format may be needed for someone who cannot read it. Equality Act 2010 section 20 sets requirements for reasonable adjustments where the relevant legal duty applies. It does not require every requested adjustment regardless of reasonableness. The example shows why identical treatment and fair treatment can diverge.

Aristotle and relevant equality

Aristotle distinguishes distributing common benefits from correcting wrongs between people in Book V of the Nicomachean Ethics. His approach to distribution is proportionate equality: relevantly equal people should receive equal shares, while a relevant difference can justify different shares. It is not a promise that everyone receives the same amount.

The difficult question is what counts as relevant. Need might justify more assistance for a vulnerable person; responsibility might justify different sentences for an organiser and a minor participant. Wealth alone need not justify better access to justice. Aristotle recognises disagreement over the criterion of merit: his theory identifies the structure of the dispute without choosing every modern criterion for us.

In corrective justice, the focus moves from distributing rewards to redressing the wrongful gain or loss between parties. English compensatory damages illustrate this idea: an injured claimant's loss matters more than the defendant's social rank. English tort law is not a direct enactment of Aristotle, and it has its own requirements and limits.

Equity in Aristotle's philosophical sense corrects a general rule when its generality misses an exceptional situation. Imagine an original hypothetical rule forbidding vehicles in a park. Applying it mechanically to an ambulance rescuing an injured child defeats the protective purpose. That supports a reasoned exception. It does not give an English judge permission to ignore any statute thought unfair; interpretation, statutory exceptions and legal powers still govern. Nor is philosophical equity identical to the historical body of English equitable remedies.

The strength of the approach is sensitivity to relevant differences. Its weakness is that a biased decision-maker can call an irrelevant difference “relevant”. Clear criteria, reasons and review help prevent discretion becoming favouritism.

Bentham and overall welfare

Jeremy Bentham's utilitarianism judges action and legislation by their tendency to increase happiness and reduce suffering. Each affected person's welfare matters. The question is the overall balance of consequences, not whether a powerful group approves or whether a rule is traditional.