On Justice. by J. R. LucasReview by: Norman S. CareNoûs, Vol. 17, No. 4 (Nov., 1983), pp. 689-693Published by: WileyStable URL: http://www.jstor.org/stable/2215091 .

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LUCAS' ON JUSTICE 689

would make explicity three decades later: that as far as geometry is concerned, the meanings of geometric terms really does not matter, except to the extent that it is determined by the logical words in the axioms involved. The overall story of the episode leading to this decision, and its philosophical echoes, is told by Torretti much better than by anyone else I know; but I wish he had not put formalism at the beginning of his account, as the truth underlying the whole process, but at the end, as the result of a decision called for by the contingent course of geometric history.

These idiosyncratic complaints should not cast shadows on Torretti's accomplishments. The book is not only technically accurate and clear; it is full of philosophically insightful analyses, witness the superb presentation of Rus- sell's geometric philosophy which is-I am tempted to say-even better than Russell's, or the enlightening treatment of the link between Helmholtz's, Ding- ler's and Kant's views. (Torretti is, by the way, a Kant scholar of distinction, his first book having been devoted to Kant's critical philosophy.) I do not doubt that Torretti has succeeded in producing the best account of the evolution of 19th century geometric ideas which we now have, and which we are likely to have for quite some time.

J. R. Lucas, On Justice (Oxford: Clarendon Press, 1980), vii + 270 pp., $24.95.

NORMAN S. CARE

OBERLIN COLLEGE

When John Rawls' A Theory of Justice appeared in 1971 ([1]), it provided a perspective on social justice that has since dominated discussion in political philosophy, moral theory, and philosophy of law. Some philosophers viewed Rawls' theory as essentially correct, and proceeded to apply it to issues not directly addressed in the large master text. Others found Rawls' view to be importantly mistaken, e.g., in its Kantian underpinnings, or in its claims about which principles are the principles ofjustice, or in the extent to which it actually presupposes the form of liberalism it aims to justify. Still others found Rawls' view to be on the right track, but to need a qualification here, a refinement there, less reliance on the contractualist apparatus to support this point, an alternative strategy of argument for that point. But whatever the degree of agreement or disagreement, the focus was on the Rawlsian theory, and, in effect, the Rawlsian way of construing what, in general,justice is came to set the terms of the contemporary discussion.

Now, after nearly a decade of such discussion, J. R. Lucas offers us still more philosophical reflections onjustice. But, while Lucas' book makes contact with the Rawlsian-centered debate, it nevertheless runs an independent course. The interest of Lucas' book-for me, anyhow-is that it tends to dispute the terms of the contemporary discussion of justice. For this reason I think the book may be important. It is not an easy book to read. It is packed with detail, somewhat repetitious, not very efficiently organized, and written in a style of assertion-cum-elucidation that I find grating. At times the book is tedious. But in many places it is positively brilliant. (The first chapter, for example, titled "Unfair," is masterful, and, as I follow the text, rather seems to

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contain the main elements of Lucas' view, so that the remaining fifteen chap- ters seem a sustained elaboration of those elements.) But despite the uneven- ness, the book's challenge to the terms of the reigning approach to justice is provocative. There is much of interest in Lucas' work that I will not be able to touch on in this short review. In what follows I have the limited aims of showing how Lucas' approach to justice contrasts in certain ways with the approach in the Rawlsian-centered discussion, and of identifying an important question that Lucas' work raises but does not answer.

First, let us recall how justice is thought of in the mainstream contempo- rary discussion. Here a philosophical theory ofjustice is supposed to have at its center a substantive "conception ofjustice," which "conception" is construed as a set of principles which applies to (what Rawls calls) the basic structure of society. Put short:justice is viewed as a property of institutions and practices-or at any rate those main, important, central institutions and practices which provide the choice-affecting "framework" for individual lives. What justice so conceived does is constrain the operations of the institutions and practices which make up society's basic structure, and in that way the society that is just, or aspires to be just, has, or comes to have, a certain direction, form, or shape to it. (It has, according to Rawls, for example, a "tendency to equality" [A Theory of Justice, pp. 100 ff.].) The tasks of a philosophical theory of justice are thus (a) to formulate the principles in the set of principles constituting the theory's con- ception ofjustice, (b) to show how they are ordered or arranged relative to each other, and then (c) to show whatjustification for them is available. (A theory of justice may do other things of course, but these are its central missions.)

Now, the kind of account ofjustice which Lucas presents differs from the kind of account of justice which I have outlined. Let me list some points of contrast.

(a) In the first place, the Rawlsian-centered discussion takes the subject of justice (i.e., what the conception of justice is to apply to) to be, again, the basic structure of society; but, for Lucas, the subject ofjustice (what justice applies to) is more nearly the individual case. In general, according to Lucas,justice has to do with deciding something about how an individual is to be treated; and, in particular, it is that way of deciding something about how a person is to be treated which is such that that person can then identify with the decision because all the relevant factors in his or her case have been taken into consideration. While the mainstream discussion is dominated by a concern for "basic-structure" justice, Lucas' account emphasizes "individual-case" justice:

Justice demands not merely that we treat like cases alike, but equally important, that we treat different cases differently. (179) Equal treatment is often unfair... because it fails to do justice to the individual's case. It is not enough that he should be treated the same as other people similarly situated: it is also required that proper account should be taken of the difference between cases, and that all, and not merely some, of the relevant factors should be taken into consideration in determining what treatment should be accorded to the individual in question. Else his individuality is being denied. He is being treated merely as one of a lump, not in the full particularity of his own case. Only if his treatment is differentiated in the light of the features of his case, can he feel that the decision is one he could himself identify with, since only then is there no relevant factor which has not been taken into consideration, and which, had it been taken into consideration might have had a bearing on the result. (175-76)

(b) In the second place, the Rawlsian-centered discussion takes thejustice that applies to the subject of justice (the basic structure of society) to be, again, a

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conception of justice, i.e., a set of principles which philosophy is to identify, order, and justify; but, for Lucas, thejustice that applies to the subject ofjustice (the individual case) is not anything very set-of-principle-like at all: it is instead something much more procedural, attitudinal, and state-of-mind-like. While in- deed we may speak of "laws, particular decisions, general economic ar- rangements and particular payments" as just or unjust, these are "derivative uses" of the notion of justice. They are uses which derive "from the man in a just frame of mind and the laws he would enact, the decisions he would take, the economic arrangements he would approve of and the particular payments he would make. Justinian and Aquinas were right in characterizingjustice as a certain state of mind" (6).

What "state of mind" is justice? Well, roughly, it is that state of mind in which we are prepared to treat different cases differently and to treat the individual "as tenderly as possible,"yet in which we are prepared as well "to take a tough line" when "sufficiently compelling reasons" obtain (e.g., favorable treatment would yield unfairness to others) (18). Those theorists who construe justice as a set of principles which philosophy can formulate, order, and justify through argument make a serious mistake. In their effort tofix justice in the form of a "static" set of principles for the "assignment of benefits, respon- sibilities and burdens," they fail to see that justice is instead an attitudinal "dynamic equilibrium under tension" whereby we struggle to be not only "impartial as between all parties" but also "impartially partial to all parties" (18).

(c) This last point leads to the third-and perhaps most striking-constrast of those I list here. In the mainstream discussion the conception of justice which philosophy seeks is thought of as substantive. That is, the principles which make up the conception are to have content enough to be able to set social directions for change, provide bases for moral criticism of institutions and practices, and guide efforts at social reform. The conception provides this content not only by specifying an interpretation for the principles associated with the values which constitute justice (e.g., liberty, equality. fraternity [cf. A Theory of Justice, pp. 105-6]), but also by ordering those principles in a certain way, i.e., "weighting" them so that one may tell which is prior to, or more important than, others. The very idea of a conception ofjustice at work in the current mainstream discussion construes justice as internally systematic. When a conception of justice (a set of principles) interprets values and puts them together in a certain order, i.e., when justice is rendered internally systematic, it is then substantive, for it then provides guidance by selecting between courses of action.

But, as I read Lucas' account, the justice he has in mind is in an important sense non-systematic. Our struggle to be impartial but also impartially partial is in fact conducted without the benefit of an independently ascertained set of ordered principles. There is nothingprior to the individual case except the state of mind I described above. We are to look (sympathetically) for "relevant factors" in the individual case, and then we are "to take account of them." But we do not have such factors ordered in any special way before we peer into, or at, this individual case-and, indeed, to the pressing question of how "relevant factors" (e.g., needs, status, merit, entitlement, deeds, agreements) are to be ranked, Lucas replies "there is. . . no single over-all answer":

Different distinctions need to be drawn in different associations, and with regard to the different benefits to be distributed or burdens to be imposed. All we can argue in general is that whilejustice requires us to treat like cases alike, it requires us also to frame our rules so as to take account of relevant differences, and to respond to them accordingly. (179, italics mine)

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Lucas grants that "we find it difficult to be content with such untidiness," and that "we yearn for a unified over-all system of justice, which shall determine what each of us is worth and give him then his due" (170). But there is nevertheless an important purpose to his insistence on the non-systematic character ofjustice. It is that the individuality of the actual persons caught up in "individual cases" is to be respected even by the theory of justice itself. The point is: when philosophers seek to develop a systematic conception ofjustice, they circumscribe justice (181). A heavily egalitarian conception of justice, for example, "abridges reason, and therefore justice itself, but also the range of concern" (181). It narrows the variety of "relevant factors," and makes impor- tant aspects of individual cases unimportant and sometimes even inadmissible. For Lucas, this is perhaps the most serious fault in the approach to justice that prevails in the contemporary discussion. He holds that the concept ofjustice is not internally systematic in the way assumed by the contemporary discussion.

(d) The fourth point of contrast between Lucas' approach to justice and that of the mainstream discussion concerns why justice is important. If the question of importance is put to Rawls, I take it he answers that the importance of justice-basic-structure justice-is that through the principles which make up the conception of justice each member of society is given "an inviolability ... that even the welfare of society as a whole cannot override" (A Theory of Justice, p. 3). Now, there are different interpretations of this famous doctrine of Rawls, and with some of them Lucas may very well agree. But nevertheless Lucas' main answer to the question of why justice is important runs in another direction. At the very end of the book Lucas writes:

Justice by itself.., does not make a man happy or fulfilled, and is no guarantee of salvation in this world or the next.... Nevertheless, it is not to be despised. It may not be everything, but it is something. It is a virtue, an important virtue, one of the cardinal virtues,for it is the bond of peace, wfich enables the individual to identify with society, and brethren to dwell together in society. (263, italics mine)

Early in the book. howjustice provides "the bond of peace" is spelled out in this somewhat curious fashion:

I can be happy to be one of We, if We arejust, because then We will treat Me as well as reasonably possible; and We will be happy to have Me as one of Us, because We know that I, beingjust, will see things from Our point of view, and will not exclude wider considerations from My assessment of the situation, and will not construe everything in terms of My own exclusive self-interest. I can be sure that We will do well by Me, and We can count on My behaving as a member of the community should. There is,.. no dissension, in thejust society.... And so you and I and all of us can live together in harmony and peace, each easily identifying with everyone else, because we all recognize the individuality of each, and respect his interests, and will cherish his interests as he would himself. (18-19)

With the hope that the above remarks convey something of the character of Lucas' view, let me in the remaining space point to a certain question which is raised, but not addressed, by his theory ofjustice. According to Lucas, justice is a state of mind in which we are to make decisions about the treatment of individuals with which they could (or should if they are reasonable) identify, and it thus enables us to live together in peace. Butjustice is also, Lucas' account suggests, non-systematic-and hence non-substantive in the manner I

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sketched above. And thereupon a question arises. It is a question about how far we want-or need-the theory ofjustice to be substantive. Alternatively put, it is a question about how far, or to what extent, we may expect to look to a philosophical account of justice for guidance for our decision-making in real cases.

If, as Lucas says, "circumstances alter cases, and... we fail to do justice unless we recognize that fact, and take into account all the relevant factors in each individual case" (176), then, clearly, what we need to know in order to "do justice" is how this taking-into-account-of-relevant-factors is to proceed. An account of this, I think, is what we would ask a philosophical theory ofjustice to provide. But it is not enough to satisfy this need to learn that justice is a state of mind in which to approach decision-making in individual cases. Nor does it satisfy this need to list procedural directives (what Lucas calls "rules of natural justice," such as "no man is to be judge in his own case" or "hear all sides of an issue"), as Lucas himself acknowledges (73). What is needed to make guidance available is the substance of ordered principles, i.e., the sort of "context" which is sought after by the participants in the Rawlsian-centered discussion who at- tempt to develop and justify a conception ofjustice which interprets and orders values, and which thus, among other things, ranks what Lucas calls "relevant factors." It is substance of this sort that Lucas claims is unavailable, or, more exactly, that he claims it would be wrong to establish independently of individ- ual cases (for to do so would be to "circumscribe" justice). The cost we incur if we follow Lucas here that the theory ofjustice at a certain point (just beyond the list of procedural rules of natural justice) is empty. It says nothing in advance of individual cases about how values are to be interpreted and ordered, or about what "relevant factors" are more important than others.

I find this to be a troubling result. Let me say at once that I do not know how to show that Lucas is mistaken on the point. But I observe that he does not himself argue for his claim that justice is non-systematic in the way I have reported. He claims, again, that substantive conceptions of justice "cir- cumscribe" justice, but that only assumes that justice is non-systematic, and does not argue that it is. Of course, those on the other side, who develop and attempt to justify a certain substantive conception, first assume that the "con- tents" ofjustice may be independently ascertained, and do not argue that this is so.

How philosophical argument for one side or the other would proceed is not clear to me. On the other hand, we may want-in fact, need-the guidance of a substantive conception ofjustice in practice, but it does not follow from this that there is such a thing as the correct substantive conception. On the other hand, a given theorist's conception ofjustice may indeed "circumscribe"justice, but it does not follow from this that there is no such thing as the correct substantive conception of justice. Lucas' book presses upon us a deep initial question about howjustice is to be thought of: isjustice to be construed as of the nature of an independently ascertainable position on the interpretation and ordering of selected values for the basic structure of society, or is it to be construed as of the nature of a state of mind in which we arrive at decisions only as a result of "judgment" and "wisdom" in individual cases?

REFERENCE

[1] J. Rawls,A Theory of Justice, (Cambridge, MA: The Belknap Press of Harvard Univ. Press, 1971).

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