Module 2: Doing the Right Thing

The purpose of this module is to interrogate the concept of justice. To ask how justice is understood differently and the implications of those differences. It seeks to ground this debate in different philosophical traditions. In so doing, we will be providing rigour to our discussion of the question at the heart of this class: How should a society be organized and governed? In other words, by understanding justice, we are able to better discuss and question contemporary forms of social organization, including the state, politics, and law. In the process, you will be asked to question your own definition of justice and the values that you hold individually as well as the values we espouse collectively. This will provide a theoretical framework for this course which will be applied to the social construct of Canada as introduced in module one.

To this end, this module we will look at the concept of justice and why it is so contested. All claims of justice stake a claim on what is right, fair or equitable. But righteousness, fairness, and equity are not universally held ideas. Are they based on the rights of the individual? Are they defined by the values held by the majority within a particular society? Are they contextual, defined in relation to the person or group in question? Do the ends justify the means even if that requires sacrificing the innocent? Do numbers matter? Is the sacrificing of one innocent life ‘just’ if it saves two innocent lives? Twenty innocent lives? Two hundred innocent lives?

These are the tough questions that will allow us to interrogate our beliefs in a dialectical fashion. In order to address such questions, we need to look at the philosophical traditions that seek to address such questions. Chapter One, “Doing the Right Thing” in Michael Sandel’s Justice, we are introduced to three positions. The first position defines justice through utility. From this perspective, justice is achieved by providing the greatest good for the greatest number of people. The second position argues that justice can only be achieved by maximizing freedom, by treating individual rights as an end in themselves rather than a means to be sacrificed for the greater good. The third position argues justice should be premised on virtue or being a ‘good citizen’. This position posits that action is ‘right’ or ‘just’ if it supports the collective understanding of the ‘good life’ and the ‘common good’. These basic positions form the framework of Sandel’s book and of our course. They will be explored in much more detail in subsequent modules but we will lay out their basic positions in this module. Finally, we look at the utility of moral dilemmas as a means for us to interrogate our own beliefs in a dialectic fashion with reason. This is the crux of what we are seeking to achieve in this course: to ask and answer hard moral questions in order to better understand what kind of society we want to live in and perhaps suggest a means of achieving such a society.

 

As we have already suggested above, justice is a much-contested concept. The first perspective we are going to look at is the welfare model of justice. From this perspective, justice is defined as the maximization of welfare. In other words, does the policy or act in question produce the greatest amount of happiness for the greatest number of people in a given society? It is a matter of utility calculus. Such calculations are quite common in our contemporary world. Think about decisions on trade. If a government decision or policy will increase the economic well-being of one sector while at the same time harming another, what should the government do? One way to answer the question is to assess the benefits that accrue to society versus the harm that will be created. If the benefits outweigh the costs, it is ‘just’ according to the welfare model. This logic can be seen quite clearly in global policies to eradicate absolute poverty. Programs like the Millennium Development Goals point to the fact that more than 1 billion people were lifted out of absolute poverty between 1990 and 2015.

While at the same time, the richest 1% had accrued more wealth than the other 99%. In 2017, Oxfam International reported that 8 men own the same wealth as half the world’s population, that is over 3.5 billion people. What would the welfare principle of justice have to say? Does the happiness of the 1 billion people lifted out of poverty outweigh the unhappiness generated by a vast increase in global inequality? Many people would say yes, such policies are on the whole ‘just’. But many would also acknowledge that the inequality of the system still makes them uneasy, that it seems unjust for the rich to gain disproportionately from the system.

Let us look at another example. Should justice be defined by the strongly held beliefs of the majority in a given community? Even if those beliefs infringe upon the rights of minority groups? Should maximizing the happiness of the many outweigh restrictions to be born by the few? There has been a recurring debate in many western countries, including Canada, on whether to ban Islamic dress in particular contexts, most notably the Niqab or Burqa.

There is a tension in this debate between the liberal individualism in many western democratic states and the perception of practices that make some people uncomfortable. From the welfare perspective, the question is this: does the happiness generated for the majority of the population by a Niqab and Burqa ban outweigh the unhappiness generated for the minority who are affected? In 2011, France was the first European country to ban the full-face Islamic veil in public. The penalty for doing so is a 150 Euro fine. This policy was built on the earlier 2004 ban on Muslim headscarves and other ‘conspicuous’ religious symbols in schools. In 2011, Belgium banned any clothing that obscures one’s identity in public places. In 2017, Austria banned full-face veils. Other countries, including Germany, Italy, Spain, Switzerland, and the UK, while not enacting national legislation, have banned Islamic face-covering in particular cities or in particular contexts like schools or courts.

This debate has also surfaced in Canada, specifically in Québec and under the federal Government of Stephen Harper. Let’s look at the federal example in a bit more detail. The Conservative Government of Stephen Harper banned the Niqab and Burqa during citizenship ceremonies in 2011, arguing to wear such clothing was antithetical to Canadian values.

In the House of Commons, Prime Minister Harper argued “We do not allow people to cover their faces during citizenship ceremonies. Why would Canadians, contrary to our own values, embrace a practice at that time that is not transparent, that is not open and frankly is rooted in a culture that is anti-women… That is unacceptable to Canadians, unacceptable to Canadian women.”

So, what does the welfare model of justice have to say? From this perspective, to determine if a policy is ‘just’, it is necessary to undertake utility calculus. The ‘right’ choice is the one that maximizes the balance of happiness over those who will be unhappy with the decision. What do the numbers tell us? A public opinion poll by Léger Marketing undertaken in March of 2015, asked 3,000 people a series of questions including some specifically on the Government’s ban of Niqabs and Burqas at citizenship ceremonies. It found 82% of Canadians somewhat or strongly supported the ban, with 93% support in Québec. Only 15% of respondents opposed the ban. For those who supported the ban, the wearing of the Niqab or Burqa seems to be considered an affront to Canadian values and a personal attack against them as Canadians. For the estimated 82% of Canadians who supported the ban, or just over 29 million people, the ban would arguably increase their happiness. On the other side, the banning of the Niqab and Burqa for citizenship ceremonies was estimated to affect approximately 100 women, whose happiness would suffer. From this calculation, the ban is ‘just’ according to the welfare model of justice. Even if we argue that the policy is perceived negatively by the roughly one million Muslim Canadians, the policy would still be considered ‘just’ according to welfare maximization. But for many people, the Niqab and Burqa ban felt unjust. It seemed to be rooted at best in intolerance and at worst in explicit Islamophobia. Practices that were held to be important to a minority group were being attacked simply for the comfort of the majority.

The second perspective we are going to look at equates justice with individual freedom. If you felt uneasy with the Niqab and Burqa ban discussed in the last section, whether you approve of them or not in practice, then this perspective may resonate with you. This is not a unified position as we will see later in this course. There are deep and contentious issues that divide this perspective, including the role of the market and the means to ensure that the least-advantaged members of society are taken care of. However, at base, what unites them is the position that actions and policies are ‘just’ when they respect the autonomy and agency of the individual. In Canada, this position is constitutionally entrenched in the Charter of Rights and Freedoms. It protects citizens from the power of the state and protects minorities from discrimination even if a discriminatory practice is supported by the majority. It has played an important role in supporting women’s rights, LGBTQ rights, language rights, and legal rights.

We also increasingly see reference to the importance of individual freedom internationally, for example in the UN Declaration of Human Rights, the Convention on the Elimination of Discrimination Against Women, or the Responsibility to Protect. Although, it should be noted that the Human Rights regime has not always been able to be fully, or even partially, realized in some cases – take the atrocities occurring of the Syrian Conflict for example.

But there have also been significant achievements. Some are concrete, for example, the conviction of Ratko Mladić who was sentenced to life imprisonment by the International Criminal Tribunal for Yugoslavia for his role in the Srebrenica massacre during the Bosnian War. Some are less concrete but perhaps more important, the idea of human security versus territorial security and the increasing recognition that peace and security are indivisible from human rights.

As we will see in subsequent modules, one of the strongest positions that defines justice through individual freedom argues that individual rights are not a means but an end in and of themselves. That as reasoning beings, humans have rights that we cannot justify breaching. Think back to our example in the last section, of banning the Niqab and Burqa. From this perspective, the comfort or happiness that the majority may get from such a ban cannot justify the breach of the individual rights of the women who choose to wear the Niqab or Burqa. This tension between individual rights and collective beliefs often sits uneasily in democratic states. Yet, for many, the rights and defence of individual freedom is a prerequisite for a just society. To test this position, let us look at another hard case to put pressure on the idea that justice requires the absolute protection of the autonomy and agency of the individual.

In the ‘ticking time bomb’ scenario, it is posited that a dirty bomb has been hidden in a high-density urban area. If it detonates, estimated casualties number in the thousands, possibly tens of thousands. The leader of the group who has placed the bomb has killed all his accomplices. This means only the remaining leader knows where the bomb is. He has been captured by the authorities. They have discovered on his smartphone a countdown to detonation and there is less than 2 hours to find and detonate the bomb. It has been suggested to bring in a specialist to torture the leader. The authorities recognize that torture may not produce the required information but all other means of finding the bomb have been exhausted. Unfortunately, at this moment, you are the most senior member on the scene and all of your superiors, particularly political superiors, are conspicuously absent. You are aware that to use torture is illegal. The choice to allow the leader to be tortured or not is entirely on you. If you choose to allow the specialist to use torture, there will be no limits placed on them. In so doing, you may get the location of the dirty bomb and therefore save thousands of lives. However, you may also be held to account for your decision, especially if unsuccessful in finding the bomb, and face imprisonment yourself. If you choose not to allow the use of torture, it is almost certain that thousands of innocent people will die. If we apply the welfare model of justice, the answer would be to allow the specialist to torture the leader. The potential happiness of thousands of people dying clearly outweighs the pain or even death of one suspect. However, if we apply the strongest form of the individual freedom model of justice, the answer is no, the lives of the many do not outweigh the rights of the individual. Again, this is intentionally a hard question. What if we make it harder?

In this scenario, the leader has been strapped to a table and connected to a machine that is designed to torture a suspect as a means of interrogation. You have to choose to inflict that pain. You will be the one to torture the suspect. Does this make the choice harder? It shouldn’t according to the welfare model. But for most people, it is harder. Why? How does this influence our understanding of individual freedom and justice?

The third perspective we are going to look at is justice defined as virtue. To contextualize this perspective, think back to our discussion of torture and the ticking time bomb scenario. Even if people are uncomfortable with the idea of torturing someone in order to save many more lives, quite a few people would still side with the utilitarian approach that it would be ‘just’ to do so. But what if we make the scenario even harder. What if the only way to break the suspect, to save the many lives that will be lost if the bomb goes off, is to harm his wife or his children. Would you be willing to harm the innocent to save lives? Would you be willing to torture the innocent?

For those who identify with a utilitarian understanding of justice, the answer should still be yes, but many would be deeply conflicted. Why? The calculus has not changed. The many would still be saved by the sacrificing of the few. But we are less conflicted when we can place the blame on the person we are going to harm or allow to be harmed. This is because, at an intuitive level, many people believe that to harm the innocent is wrong. It is unjust. One way to understand this reticence is by understanding justice as virtue. From this perspective, a policy or action is ‘just’ if it affirms important societal values, or virtues. In other words, if it promotes the common good. While most modern debates on ethics fall into the welfare or freedom camps, there is often a residual element of the virtue argument present. Take the example from the chapter on price gouging after a natural disaster. The welfare perspective might argue that price gouging is ok because in the end, it encourages the provision of much-needed goods and services in a devasted area. The freedom approach to justice might agree that price gouging is ok because it allows the market to operate freely. It allows individuals to place their own value on the goods and services that they freely exchange in the market. However, while both perspectives can defend price gouging, there often remains a mental irritant to agreeing with either position. A sense that while price gouging can be defended, it is still unjust. That it is unjust to reward greed and predatory practices. That such practices and the people that employ them do not contribute to the common good.

Justice as virtue is determined by the actions of people as virtuous or not rather than rules to be followed. However, there is also a reason why most contemporary debates on justice often default to the welfare or freedom perspectives. These perspectives offer relatively firm guidance on what we should or should not do: maximize welfare via a utility calculation or respect individual freedom. And these are entirely defensible positions. On the other hand, the virtue perspective is more nuanced and contextual, not easily lending itself to informing specific conduct. This can result from different virtues being at odds. For example, what should one do when honesty and friendship collide or justice and mercy. There is also the problem of relativism: what is a virtue to one community may not be for another across both time and space. This becomes especially problematic when the laws of the state are used to enforce a particular virtue.

Let us take a look at a hard case for the ‘justice as virtue’ position and in particular taking into account the worry of relativism. The tension between virtue ethics and relativism can be identified when we look at the list of virtues across time and space. For example, if we compile a list of virtues in Canada of 1867 and Canada today or Canada today and Myanmar today, they would be vastly different. This is because what is considered virtuous and the ranking of virtue vary widely for each in time and place and therefore what is just, is relative. It is defined by the society in which the action is taking place, most often by the majority. As such, such virtues can also be discriminatory.

Let us consider LGBTQ rights in Canada as an example.

While under British Colonial rule, homosexuality was illegal in the colonies and the act of sodomy was punishable by death. From Confederation to the 1960s, the laws pertaining to homosexuality were purposefully ambiguous, allowing great latitude to law enforcement. Until 1948, homosexuals could be charged with gross indecency. Between 1948 and 1961, new laws introduced labels such as criminal sexual psychopath and dangerous sexual offender. This last label, dangerous sexual offender, was applied to anyone who is likely to commit a sexual offence thereby making any non-celibate gay person a criminal. In the 1950s and 1960s, the ‘fruit machine’ was used to eliminate gay men in the civil service, the RCMP, and the military. The ‘fruit machine’ would expose subjects to pornographic images and test for pupil dilation. A watershed moment in the rights of the LGBTQ community would come with the case of Everett Klippert. In 1960, Mr Klippert, originally from Kindersley Saskatchewan but raised in Calgary was arrested and plead guilty to 18 counts of gross indecency and served four years in prison. In 1965, he was questioned by the police in regard to an act of arson at a mine in the Northwest Territories. During the interrogation, he admitted to having sex with four men and was again convicted of gross indecency and sentenced to three years in prison. Since Mr. Klippert was a repeat offender, the Crown sought to have him designated as a dangerous sexual offender. After being examined by the prison psychiatrists, he was diagnosed as an incurable homosexual and designated as such. He was sentenced to life in prison which was upheld by the Supreme Court of Canada. He wouldn’t be released until 1971. However, the injustice of Mr. Klippert’s case and the changing social mores in the late 1960s both in Canada and other countries such as the US and the UK, the rights of the LGBTQ community would begin to improve. In 1971, the first protests for gay rights took place in Ottawa and Vancouver. The Pride celebration took place in Toronto in 1972. In 1977, Québec amended its Human Rights Code to prohibit discrimination based on sexual orientation. In 1981, in response to the Toronto Police arresting 300 men in bathhouses, 3,000 people protested in the streets. However, such raids would continue until 2002. In 1982, under the Charter of Rights and Freedoms, the right to non-discrimination was enshrined in the Constitution. It wouldn’t be until 1995 that the Supreme Court would rule that this right of non-discrimination would apply to sexual orientation. In 1996, this was included in the Canadian Human Rights Act. Many of the provinces would follow suit and, in 1998, the Supreme Court Ruled that Alberta’s human rights legislation must include non-discrimination of sexual orientation. This was based on the trial of Delwin Vriend, a teacher fired for being gay. However, persecution has persisted. For example, due to the scare of HIV/AIDS in the 1980s, gay men could not donate blood until 2013. And even now, they can only do so if they have not had sex with a man for at least 3 months. Other victories for the LGBTQ community include lifting the ban on military service in 1992, the right for gays and lesbians to apply for refugee status in 1994, and the right of same-sex couples to adopt children in 1995. In 1999, the rights of common-law relationships were recognized for same-sex couples. In 2005, same-sex marriage was federally recognized.

Since then, while there have been a series of advances in both the legal and social acceptance of LGBTQ rights, issues remain, particularly around social practices. So, what do we make of this from the perspective of justice as defined by virtue? If virtue and thus justice is defined by the moral position and action of the majority within a particular society, the persecution of the LGBTQ community until 1998 would be considered just. And yet most people today would rightly take issue with that position. Moreover, so would contemporary law which has enshrined non-discrimination based on sexual orientation since 1998. And before we take too much solace in the evolution of social mores in Canada, it is important to think back to the discussion on the Niqab and Burqa ban. In 2015, 82% of Canadians supported a ban on these Muslim garments at citizenship ceremonies. Further Bill C62 in Quebec attempted to impose broader bans similar to those in other European states. Aren’t these policies also discriminatory based on majority norms? Therefore, defining justice through virtue does offer some powerful insight, it can also justify injustice.

This module has sought to introduce and problematize the concept of justice. We discussed the idea of justice being defined by welfare maximization. How do we generate the greatest amount of happiness for the greatest number of people? This is an important discussion and we will see in subsequent modules that it offers some powerful insight into defining justice and achieving social good. However, as we also saw, the utility calculus at the heart of welfare maximization can produce outcomes that many may feel are unjust. The example we used was how a ban on the Niqab and Burqa in citizenship ceremonies would maximize the happiness of the majority but at a cost to those who believe the wearing such garments are important to their religious identity. The second means of operationalizing justice that we looked at is through individual freedom. From this perspective, policies and acts which respect the autonomy and agency of the individual are just. This is a powerful argument, that gives agency to people who can operate freely in the market to achieve what they believe to be just. The strongest position from this perspective posits individual rights as absolute. However, as we saw with the ticking time bomb scenario, are these individual rights absolute? Or are there cases where justice can be served by sacrificing the rights of people who have done terrible things? The final perspective we have looked at is justice defined through virtue. As we saw in the example of price gouging, we do make judgements about justice based on what people do, on what people deserve, on means as well as ends. There are some powerful arguments here. When we discuss virtue, we are not looking at rules but rather at the qualities of people and their actions that lead us towards the good life. However, as we saw in the case of LGBTQ rights in Canada, defining virtue can also be relative and as such can be coercive. There is the danger that the majority will define virtue in such a way that can be detrimental to a minority group, it can cause real harm. These three positions and some variants within them will be explored in much more depth in the following modules. For now, reflect on how each position answers some questions of justice but is also challenged by others. And reflect on how by asking hard questions and introducing hard cases, we can push our beliefs on what is just, what is a good society, and what is the good life.

Justice can be defined by welfare maximization. In other words, policies or actions are just when they provide the greatest good for the greatest number of people. This is a form of cost benefit analysis. Does the happiness generated by the act or policy out weigh the costs or suffering that is also generated? This is also called utility calculus. This perspective is often used in economic policy, particularly trade policy. But it also has some weaknesses. For example, in the module, we introduced the government ban on the wearing the Niqab or Burqa during citizenship ceremonies. According to polling 82% of Canadians approved of this ban. It was also estimated that the ban would likely only affect approximately 100 women directly. From this perspective the utility calculus is quite clear, the happiness generated far outweighs the suffering generated. Even if we suppose that all of the roughly 1 million Muslims in Canada were offended by this policy, the cost benefit analysis still firmly comes out in favour of the ban. But is such a ban just? This is more contested. Even for those who approve of the ban in principle, there is till many who feel it is unjust to ask a minority to sacrifice something that is important to their identity in order to make the majority more comfortable.

Justice can be defined by individual freedom. In other words, policies or actions are just when they respect the autonomy and agency of the individual. We will see in future modules that this is not a homogenous perspective especially regarding the role of the market and how to protect the most vulnerable segments of society. This perspective is the basis of the Charter of Rights and Freedoms domestically and the Universal Declaration of Human Rights internationally. The strongest strain of this perspective argues that some individual rights are so universal that you may not breach them under any circumstances. We question this perspective with the idea of the ticking time bomb scenario. If the torture of a terrorist, which is a fundamental breach of their human rights, is the only means to possibly stop the detonation of a nuclear bomb, is that just? This is a hard case even for those who believe justice is best achieved by respecting individual rights.

Justice can be defined by virtue. In other words, policies or actions are just when they affirm important societal values or virtues. This is best exemplified by comparing the virtue perspective to the welfare and individual perspectives in the case of price gouging after a natural disaster. Both the welfare and individual perspectives can agree that price gouging is ok according to their own logic. But even if you can intellectually justify price gouging, for many there remains an irritant, that this is still unjust. From the virtue perspective, that irritant is explained by the fact the greed and preying on the vulnerable are by their nature unjust. The virtue perspective is different than the previous two in that it is not focusing on the ends. It is focusing on conduct and who deserves what. We also looked at a hard case for the virtue perspective. It is argued that virtue can be relative, meaning that what is just depends on the values of the community. From this perspective, we ask if the discrimination against the LGBTQ community, particularly prior to 1998, was just? Very few people if anybody would argue yes by today’s standards. But it would certainly have been judged so by many in the 1950s or even the 1960s.

Moral dilemmas make us question our own beliefs with both real examples and contrived thought experiments. Such Moral dilemmas force us to confront what we believe to be true, right, moral, and just. They intentionally put our convictions to the test, pushing us into dialectic reasoning between our principles and hard cases. In finding a synthesis between them, we are better able to understand and pursue justice both individually and collectively.

The ticking time bomb scenario provides insight to all three approaches to justice. The scenario: a terrorist has planted three bombs in a city. The terrorist has been captured and their phone indicates the bombs will go off in less than three hours. There are no leads and no hope of finding the bombs on time. Do you use torture to try to find out where the bombs are? For those who define justice through one of the strongest variants of individual freedom, the answer should be no. But even for those who believe in this position, it would be a hard case. From the perspective of justice defined by welfare, the decision is easy. The utility calculus would suggest the happiness that would be felt by the many who were not killed far out weighs the pain to be born by the terrorist who would be tortured. But what if we have to torture the terrorist’s wife, or his children? From those who define justice through welfare, the utility calculus hasn’t changed, the answer should still be yes. But for many that is a much harder choice and there is no real justification why that should be so. From the virtue definition of justice, the answer is obvious. The innocent do not deserve to be tortured and to do so is unjust.