Problems of Justice

Positive legal theory leaves open the difficult problem of determining when a particular action or intention is morally ‘wrong’. In fact, none of these theories make the notion of “moral wrongness” comprehensible. Things may or may not be acceptable in specific contexts, or may be valued for increasing general utility (assuming it can be measured or is measurable), but notions of right or wrong, as the terms are traditionally used in ethical theory, are not per se applicable. Although students of ethics are taught about utilitarianism, and both ethics scholars and applied ethicists must resort at time to the hedonic calculus in resolving ethical dilemmas, the end result of this work will always be a determination about what one should do in order to increase general utility (happiness), and not clearly what we typically consider to be an ethical judgment about a category of actions that are right or good in a moral sense.

This is because each decision is necessarily contingent, and hypothetical, as opposed to decisions made according to deontological theory, which are categorical and apply to every such action or intention. The weaknesses of utilitarian-based systems of justice are noted by John Rawls and other neoKantian scholars of law and ethics. These weaknesses make it difficult to argue that positive legal theory, or utilitarianism, can lead a society to a state fairly called just. This is because “justice” implies some connection with notions of morality. In modern constitutional parlance, there are two forms or aspects of justice: substantive and procedural. Procedural justice means simply that for every person who becomes involved in a criminal or civil judicial matter, the procedures used are employed equally and fairly, their content is transparent and purposes clear. Substantive justice is more complex, and the notion implies some accord with some higher law. Substantive justice is a measure by which both constitutions and legislation may be judged, and according to which they may fail. If a law fails to fulfill the requirements of substantive justice, it may justly be struck down. Procedural justice, on the other hand, refers to how a legal process accords with the non-substantive, but largely bureaucratic, elements of achieving justice, although the two forms may be intertwined. The difference between the two is like the difference between the “letter” of the law and the “spirit” of the law.

Given the weaknesses of positive legal theory in providing a solid context in which justice can be evaluated, or by which just legal systems and their rules could be imposed, why does the positivist approach continue to thrive in legal scholarship and political theory? One explanation may be that legal and political scholars have abandoned Kantian notions of categorical right and wrong, and have embraced a utilitarian world view. It seems to be that in so doing, and in simultaneously accepting the Rawlsian notion of distributive justice (as indeed some of these same scholars and theorists seem to do), they are trapped in a contradiction. Rawlsian distributive justice depends upon accepting the notion of categorical duties, including the duty to treat everyone as an end, and not merely as a means to an end. Another categorical duty under Rawls is to treat everyone with equal dignity. But Rawls simply accepts the Kantian explanation for the existence of these duties, arguing that we would arrive at these duties in forming a society if we place ourselves in the “original position” behind his hypothetical “veil of ignorance” from which vantage point we have no idea of who we might be in a society. Kant’s categorical imperative is arrived at by a different heuristic, but the content is the same: we must be able to successfully universalize an imperative without contradiction in order for the rule to be moral. Neither Rawls nor Kant judge the morality of a rule according to consequences, and Rawls is thus generally classed as a neo-Kantian, as he himself at times agrees.

If justice becomes contingent upon actually or potentially existing laws, as it must under a utilitarian/positivist perspective, then rule-making will be similarly contingent. Just as Bentham insisted, the link between lawmaking and morality must be completely severed, and decisions about the justice of rules must be limited to procedural matters. As a result, no coherent system of substantive justice could be based upon utility as a measure or standard by which just laws could be created. The barriers to a substantive sense of justice compatible with utilitarianism are epistemological (the calculus cannot be carried out to sufficient exactness, either over and across populations, or through time) as well as ontological: the calculus does not tell us what is good or right, but merely what we should do in a certain situation to maximize happiness. And despite Bentham’s rejection of deontology, the demand to maximize happiness relies upon a categorical rule, one which cannot be adjudged scientifically, namely, happiness is a sound basis for moral decision-making. Because of this and similar problems with utilitarianism, and the unacceptable practical consequences of accepting a pure utilitarian basis for ethical decision-making, legal positivism stands on similarly shaky ground. The fact is that neither rule makers nor ordinary people function as though there is no grounding for just rules other than utility. There are clear, historical instances of both individuals and states committing acts that are clearly unjust, regardless of their effect on general utility. The reasons why we consider certain intentional states and actions to be wrong in themselves are beyond the scope of this chapter, but the fact that we do consider them wrong is recognized in constitutions and in courts. The general recognition that, despite the arguments of legal positivists, there are certain categorically wrong actions and intentions, is what has enabled constitutional change as well as liberal revolutions, and it is what has made these historical moments good. That unjust laws are possible provides the impetus behind the slow march toward greater freedom and more perfect systems of justice.

In the absence of theory of justice, how does law work? What enables us to have some confidence in systems of law, or the discretion of lawyers and judges? We see various “injustices” all the time, come to some consensus about them and adjust of institutions and their administrators on occasion, but what guides that process? In the absence of clear, guiding principles of what constitutes the good and the just, how do we determine who wears the white hat and who wears the black, porkpie hat? Breaking Bad makes it evident that the inquiry goes much deeper than traditional analysis allows.

It is clear there is no “good guy” in Breaking Bad. Even the lawmen are tainted by the desire to achieve goals that fly in the face of moral and legal prohibitions, and so justify their rule-breaking at least to themselves. In pursuit of some higher “justice,” positivists and utilitarians agree: the ends may justify the means. But isn’t this the exact lesson of Walt’s endeavors, and hasn’t he justified in its conclusion his descent into “evil?” Innocents may have perished along the way, but has Walt found justice in his demise?

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