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Principles of Metanormative Justice
Justice is a concept that applies only to other-directed human actions. The question of justice and injustice only arises when there are multiple individuals and some practical considerations regarding their situations and/or interactions with one another. In one sense, it is a concrete, objective, and recognizable principle (i.e., respect for individual rights) that provide the foundation for a free society. Justice, in such a metanormative context, means to respect free choice. In turn, to be just and moral in a normative sense (i.e., as a central, social virtue of human flourishing) requires respect for individual free choice. Only free persons can be just and moral persons. Metanormative justice provides a criterion for law and for the possibility of individual morality and normative justice.
Doug Den Uyl and Doug Rasmussen distinguish between metanormative justice and justice as a constituent virtue of one’s personal flourishing. Metanormative justice is concerned with the orderly and peaceful coordination of any person with any other. This type of justice deals with nonexclusive, universal, and open-ended relationships, thus providing the foundation of a political order and the context for exclusive relationships to develop and for the possibility of personal flourishing and happiness. Justice as a normative principle and constituent virtue involves a person’s contextual recognition and evaluation of others based on objective criteria. Normative justice is concerned with selective (i.e., exclusive) relationships and requires practical reason and discernment of differences of both persons and situations. Justice as a constituent virtue deals with individuals in more specific and personal ways than does justice in a metanormative sense. Not all character failings or immoral behaviors are crimes. The question of how persons ought to act (i.e., normative justice) and the question of how society ought to be structured (i.e., metanormative justice) are separate and distinct investigations. The principles of justice discussed below deal solely with justice in the latter sense (i.e., in the sense of the social structure that should be adopted).
Nature has its own imperatives. An argument can be made that the world is governed by principles or laws that dictate how society ought to be structured in much the same way that natural laws dictate how bridges or buildings should be constructed. Given the nature of man and the world, if we want persons to be able to pursue happiness, peace, and prosperity while living with one another, then we should adopt and respect a social structure that accords each person a moral space over which he has freedom to act and within which no one else may rightfully interfere. The idea of natural rights defines this moral space. The idea of natural rights can be used to create a legal system that makes it possible for individuals to pursue happiness and carry on a virtuous life.
It follows that the fundamental principle of justice is respect for free and nonaggressive choice. Both justice and morality require respect for individual free choice. A state that restricts freedom of choice violates the basic principle of justice. Justice means that a person must be accountable for his own actions, entitled to the reward of his labor, and responsible for the consequences of his wrongdoings. Freedom not only means that the individual has both the opportunity and freedom of choice, it also means that he must bear the consequences of his actions.
Justice and injustice do not depend on positive law. Justice, a broader concept than law, provides a criterion for man-made laws. A just law is one that is based on, and not contradictory to, natural rights. Injustice involves the violation of natural rights and includes murder, assault, theft, kidnapping, enslavement, rape, fraud, etc. If the behavior generating a specific distribution of wealth or income defies rules prohibiting force, theft, or fraud, then the behavior and the distribution are unjust. No particular way of distributing goods can be said to be just or unjust apart from the free choices individuals make. Any distribution of benefits and costs is just if it results from persons freely choosing to exchange with one another.
The law serves justice when it is used to restore the peace when a person’s rights have been violated. However, the law can misuse its power by itself violating people’s rights either for its own purposes or to further the ends of some third party. A law is applied justly if it is applied impartially and consistently. Injustice occurs when like cases are not treated in the same manner. The law should treat similar cases alike unless there is some material, relevant difference. Laws can be unjust—so can the administration of the law. Mercy with respect to the application of the law is at odds with justice. If mercy is just, then every criminal ought to be set free.
Metanormative justice is concerned with individual rights. The right of private property is a person’s right to acquire, possess, use, and dispose of scarce resources, including his own body. Resources may be employed in any manner that does not interfere with other individuals’ use of their resources.
Whereas most property rights are freely alienable (i.e., transferable) a case can be made that the right to acquire one’s person is inalienable. A claim that a right is inalienable is different from a claim that it is nonforfeitable. It is possible to forfeit one’s rights because of some wrongdoing. Because control of one’s body cannot be transferred, it can be argued that the right to control one’s body likewise cannot be transferred. For example, a person who “sells” himself into slavery would still have control over his actions and would have to willfully act to comply with the “owner’s” orders. Put another way, a person’s moral agency cannot be transferred to another person and if that faculty cannot be transferred, then neither can the ownership of that faculty. Because he retains his moral agency, a slave can be held accountable for his actions.
All those who endorse a classical liberal conception of justice do not hold the idea that some rights are inalienable. This is because to maintain that a right is inalienable is to limit individuals’ freedom to contract. Many classical liberals hold that persons should be able to pursue happiness by voluntarily exchanging any of their rights.
The right of first possession stipulates that property rights to unowned resources are acquired by being the first to claim, control, and improve them. In addition, the right of freedom of contract specifies that a rightholder’s assent is needed to transfer alienable property rights both while one is alive and through the use of a will upon one’s demise. It is unjust to violate the above rights through force or fraud.
The right of reparation (or restitution) demands that a person who violates the rights that define metanormative justice must compensate the victim of the rights violation for the harm produced by the injustice. If necessary, such payment may be collected by force. Reparationists oppose violence against people except for self-defense and to educe restitution from criminals and tortfeasers. Criminals and tortfeasers lose their right to self-defense to some degree and do not get their self-defense rights back until they have paid for their crimes and torts by compensating their victims. In addition to condoning violence against a criminal to stop him from committing a crime, restitutionists condone the use of violence (e.g., imprisonment and forced work) against criminals and tortfeasers to compel them to make reparation. According to the principle of strict proportionality, the amount of restoration should be limited to that which is necessary to fully compensate the victim—there should not be overcompensation or undercompensation.
A special case of commutative justice, the obligation of making restitution involves the returning of something stolen (or if not possible, its value), the restoration or repair of something destroyed or damaged, compensation for an injury that has been unjustly inflicted, etc. Restitution is called for in cases of theft, fraud in contracts, the culpable nonpayment of debts, the nonreturning or excessive delay in returning borrowed items, the failure to reveal defects in items sold, deceit with respect to the quality of an item sold, etc.
Like reparationists, retributionists condone violence for self-defense and to force a criminal or tortfeaser to compensate his victim. However, retributionists also condone the use of force to punish a criminal for his crime.
Neither reparationists nor retributionists espouse utilitarian objectives such as rehabilitation or deterrence, both of which can be sought without concern for justice. Instead, their focus is on personal responsibility, just compensation, and for retributionists, deserved punishment. Justice depends on desert, and desert is a matter of past performance, rather than of future possibilities. Of course, there is the problem of trying to objectify the subjective value of just restitution and, for retributionists, the degree of deserved punishment. It is easy to generalize that the level of a punishment should fit the severity of the crime (i.e., punishment must be proportionate to desert), but it is much more difficult to obtain agreement on the appropriate punishment for a particular crime.
The right of self-defense allows the proportionate use of force against those who threaten to violate another’s rights. Normal self-defense is allowed when the commitment of a rights violation is impending. Extended self-defense is permitted when a person has indicated, by past rights violations or other proven prior conduct, to be a threat to violate rights in the future. Whereas restitutionists would tend to argue for life imprisonment for convicted murderers on the basis of extended self-defense, retributionists would argue for life sentences (and some for capital punishment) on the basis of deserved punishment.
Metanormative justice is a concept that can be used to evaluate the propriety of the use of force. The principles of metanormative justice presented in this essay can be debated, refined, and then used to critically evaluate, validate, and correct human laws that are coercively enforced.
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