Commutative justice has an agreed procedure, issuing in judgements of courts of law, for deciding which “demands of justice” should be granted. The demands of social justice, however, are not adjudicated in this way. Nobody’s judgement in social justice entails a moral obligation for somebody else to have it executed#
Considerations of justice argue not so much for a wholesale reconstruction and reformation of rules as for a proper understanding of which rules actually prevail and for a reconciliation of conflicts, inconsistencies, and ambiguities among those prevailing rules. Justice is seen to demand a harmonization of the rules and possibly an extension of the domain of rule-governed behavior. Justice is not, however, seen to provide an independent norm on the basis of which ab initio design of ideal rules might be structured.#
The judge and the legislator stand in different positions and look in different directions: one to the past, the other to the future. The justification of what the judge does, qua judge, sounds like the retributive view [of punishment]; the justification of what the (ideal) legislator does, qua legislator, sounds like the utilitarian view. . . . One’s initial confusion disappears once one sees that these views apply to persons holding different offices with different duties, and situated differently with respect to the system of rules that make up the criminal law.#
The decision whether or not to use law rather than some other mechanism of social control, and the decision as to what laws to have and what penalties to assign, may be settled by utilitarian arguments; but if one decides to have laws then one has decided on something whose working in particular cases is retributive in form.#
As one drops off the defining features of punishment one ends up with an institution whose utilitarian justification is highly doubtful.#
An institution which is set up to “punish” the innocent, is likely to have about as much point as a price system (if one may call it that) where the prices of things change at random from day to day and one learns the price of something after one has agreed to buy it.#
Patterned principles of justice focus only upon the recipient role and its supposed rights. Thus discussions tend to focus on whether people (should) have a right to inherit, rather than on whether people (should) have a right to bequeath.#
The man who chooses to work longer to gain an income more than sufficient for his basic needs prefers some extra goods or services he could acquire by working more. Given this, if it would be illegitimate for a tax system to seize some of a man’s leisure (forced labor) for the purpose of serving the needy, how can it be legitimate for a tax system to seize some of a man’s goods for that purpose? Why should we treat the man whose happiness requires certain material goods or services differently from the man whose preferences and desires make such goods unnecessary for his happiness? … Isn’t it surprising that redistributionists choose to ignore the man whose pleasures are so easily attainable without extra labor, while adding yet another burden to the poor unfortunate who must work for his pleasures?#
“The penalty for a crime should be the minimal one necessary to deter commission of it” provides no guidance until we’re told how much commission of it is to be deterred.#