Essay on “Distributive Justice Vs. Retributive Justice” for CSS, PMS and Judiciary Exam

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Essay on “Distributive Justice Vs. Retributive Justice”

Justice can be divided into two broad types:

  1. Distributive justice
  2. Retributive justice

Distributive justice is concerned with the proper distribution of good things – wealth, power, reward, and respect between different people. So, for instance, egalitarianism is a theory of distributive justice, which says that the proper distribution of wealth (and perhaps other goods) is an equal distribution no one in the relevant group should have more or less than anyone else in that group.

Retributive justice is concerned with the proper response to wrongdoing. So, fr instance, the lex talionis (law of retaliation) is a theory of retributive justice which says that the proper punishment is equal to the wrong suffered: life for life, eye for an eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for  wound, stripe for stripe.”

Theories of distributive justice need to answer three questions:

  1. What goods are to be distributed? Is it to be wealth, power, respect, some combination of these things?
  2. Between what entities are they to be distributed? Humans, sentient beings, the members of a single society, nations?
  3. What is the proper distribution? Equal, meritocratic, according to social status, according to need?

Distributive justice theorists generally do not answer questions of who has the right to enforce a particular favored distribution.

According to the egalitarian, goods should be distributed equally. This basic view can be elaborated in many different ways, according to what goods are to be distributed – wealth, respect, opportunity – and what they are to be distributed equally between – individuals, families, nations, races, species. Commonly-held egalitarian positions include demands for equality of opportunity and for equality of outcome.

In one sense, all theories of distributive justice claim that everyone should get what he or she deserves. Where they diverge is in disagreeing about the basis of desert. The main distinction is between, on one hand, theories that argue that the basis of just desert is something held equally by everyone and therefore derive egalitarian accounts of distributive justice; and, on the other hand, theories that argue that the basis of just desert is unequally distributed on the basis of, for instance, hard work, and therefore derive accounts of distributive justice according to which some should have more than others. This section deals with some popular theories of the second type.

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According to meritocratic theories, goods, especially wealth and social status, should be distributed to match individual merit, which is usually understood as some combination of talent and hard work. According to needs-based theories, goods, especially such basic goods as food, shelter, and medical care, should be distributed to meet individuals’ basic needs them. Marxism can be regarded as a needs-based theory on some readings of Marx’s slogan, from each according to his ability, to each according to his needs. According to contribution-based theories, goods should be distributed to match an individual’s contribution to the overall social good.

In his A Theory of Justice, John Rawls used a social contract argument to show that justice, and especially distributive justice, is a form of fairness: an impartial distribution of goods. Rawls asks us to imagine ourselves behind a veil of ignorance which denies us all knowledge of our personalities, social statuses, moral characters, wealth, talents, and life plans and then asks what theory of justice we would choose to govern our society when the veil is lifted if we wanted to do the best that we could for ourselves.

We don’t know who in particular we are, and therefore can’t bias the decision in our own favor. So, the decision-in-ignorance model’s fairness, because it excludes selfish bias. Rawls argues that each of us would reject the utilitarian theory of justice that we should maximize welfare because of the risk that we might turn out to be someone whose own good is sacrificed for greater benefits for others. Instead, we would endorse Rawls’s two principles of justice:

1. Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.

2. Social and economic inequalities are to be arranged so that they are both:

a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and

b) attached to offices and positions open to all under conditions of fair equality of opportunity.

This imagined choice justifies these principles as the principles of Justice for us because we would agree to them in a fair decision procedure. Rawls’ theory distinguishes two kinds of goods.

  1. liberties and
  2. social and economic goods, i.e. wealth, income, and power – and applied different distributions to them – equality between citizens for
  3. equality unless inequality improves .the position of the worst off for
  4. Having the right history

Robert Nozick’s influential critique of Rawls argues that distributive justice is not a matter of the whole distribution matching an ideal pattern, but of each individual entitlement having the right kind of history. It is just that a person has some good (especially, some property right) if and only if he or she came to have it by a history made up entirely of events of to kinds:

  1. Just acquisition, especially by working on unowned things; and
  2. Just transfer, that is free gift, sale, or other agreement, but not theft.
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If the chain of events leading up to the person having something meets this criterion, then he or she is entitled to it: it is just that he or she possesses it, and what anyone else las, or does not have, or needs, is irrelevant.

On the basis of this theory of distributive justice, Nozick argues that all attempts to redistribute goods according to an ideal pattern, without the consent of their owners, are theft. In particular, redistributive taxation is theft.

Welfare-maximisation

According to the utilitarian, justice requires the maximization of the total or average welfare across all relevant individuals. This may require the sacrifice of some for the 9009 of others, so long as everyone’s good is taken impartially into account. Utilitarianism, in general, argues that the standard of justification for actions, institutions, or the whole world, is impartial welfare consequentialism, and only indirectly, if at all, to do with rights, property, need, or any other non-utilitarian criterion. These other criteria might be indirectly important, to the extent that human welfare involves them. But even then, such demands as human rights would only be elements in the calculation of overall welfare, not uncrossable barriers to action.

Theories of retributive justice

Theories of retributive justice are concerned with punishment for wrongdoing, and need to answer three questions:

  1.  why punish?
  2. who should be punished?
  3. what punishment should they receive?

This section considers the two major accounts of retributive justice and their answers to these questions. Utilitarian theories look forward to the future consequences of punishment, while retributive theories look back to particular acts of wrongdoing, and attempt to balance them with deserved punishment.

Utilitarianism

According to the utilitarian, as already noted, justice requires the maximization of the total or average welfare across all relevant individuals. Punishment is the bad treatment of someone, and therefore can’t be good in itself, for the utilitarian. But punishment might be a necessary ‘sacrifice, which maximizes the overall good in the long term, in one or more of three ways:

  1. Deterrence. The credible threat of punishment might lead people to make different choices; well-designed threats might lead people to make choices that maximize welfare.
  2. Rehabilitation. Punishment might make bad people into better ones. For the utilitarian, all that a bad person can mean is a person who’s likely to cause bad things (like sufferings). So, utilitarianism could recommend punishment that changes someone such that he or she is less likely to cause bad things.
  3. Security. Perhaps there are people who are irredeemable causers of bad things. If so, imprisoning them might maximize welfare by limiting their opportunities to cause harm.

So, the reason for punishment is the maximization of welfare, and punishment should be of whomever, and of whatever form and severity, are needed to meet that goal. Worryingly, this may sometimes justify punishing the innocent, or inflicting disproportionately severe punishments, when that will have the best consequences overall (perhaps executing a few suspected shoplifters live on television would be an effective deterrent to shoplifting, for instance). It also suggests that punishment might turn out never to be right, depending on the facts about what actual consequences it has.

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Retributivism

The retributivist will think the utilitarian’s argument disastrously mistaken. If someone does something wrong, we must respond to it, and to him or her, as an individual, not as a part of a calculation of overall welfare. To do otherwise is to disrespect him or her as an individual human being. If the crime had victims, it is to disrespect them, too. Wrongdoing must be balanced or made good in some way, and so the criminal deserves to be punished. Retributivism emphasizes retribution – the payback – rather than maximization of welfare.

Like the theory of distributive justice as giving everyone what she deserves (see above), it links justice with desert. It says that all guilty people, and only guilty people, deserve appropriate punishment. This matches some strong intuitions about just punishment: that it should be proportional .o the crime, and that it should be of only and all of the guilty. However, it is sometimes argued that retributivism is merely revenge in disguise.

Another definition of justice is an independent investigation of truth. In a courtroom lawyers, the judge, and the jury are supposed to be independently investigating the truth of an alleged crime.

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