Honore
Honore
Honore
A. M. Honor6*
This article re-examines the concept of social justice. Some justification may
be desirable for writing on a topic which has been so luxuriantly treated in the
past. Professor Del Vecchio's work,' translated by Professor Campbell, contains
a very full account of the history of the literature. A number of reasons may
however be adduced for a fresh attempt to analyze this concept.
First, the choice of topic happily coincides with the appointment of F. R.
Scott, Dean of the McGill Law School, who has been actively concerned in
establishing before the courts the right of citizens to be free from arbitrary
restrictions. Secondly, in an issue of the McGill Law Journal concerned with
civil rights, it seems not inappropriate that the notion of social justice should
have its place. It is true that civil rights are designed to secure interests other
than justice, for instance liberty, but in any treatment of civil rights and any
consideration of the object of civil rights legislation, justice must have its place.
Thirdly, during the last century the emphasis has shifted from analysis of
justice tout court to that of social justice. Indeed justice by itself no longer arouses
the responses it once did. Perhaps this is because modern social and economic
developments have made it clear that individual justice, justice between wrong-
doer and victim is only a partial and incomplete form of justice. We find
that in this century the notion of social justice has everywhere received atten-
tion. For instance, the development of the welfare state is generally thought
of as an application of the notion. The interest of the Catholic Church in social
justice is born out in many passages of the recent encyclical Mater et MAgistra
of PopeJohn XXIII." The cry for equality of opportunity for the underprivileged
is increasingly heard, and underdeveloped countries are increasingly thought
to have claims on more developed economies for the capital and technique
necessary to develop them. All these phenomena, it would generally be
agreed, illustrate the importance of the notion of social justice in the modern
consciousness. 3
*Rcadcr in Roman Dutch Law, Oxford University; Visiting Professor of Law, McGill University,
1961.
'Del Vecchio, Justice, translated by A. H. Campbell (Edinburgh, 1952), to which I am greatly
indebted. Cf. Sidgwick, The Method of Ethics, ch. 6. Perelman, De la justice. Ross, On Law anI
Justice, ch. 12.
L'encyclique Mater et Magistra, introduction by C. Ryan (Montreal, 1961) pp. 52, 57, 69, 95.
'For the earliest discussions see Romagnosi, Genesi deldirittopenale V. ii. s. 943, 497, 948. Rosmini,
La CostittrioncSecondo la Guistkia Sociale (1848). Hobhouse, Elements of Social Jostice (1922); Gillet,
Conscience Chrtienne et Justice Sociale (1922).
McGILL LAW JOURNAL (Vol. 8
or put forward a claim to fair treatment, there are at least six principles of
justice to be distinguished.
crime and delict was not in the fourth century B.C. a very distinct one and in
consequence he seems not to have marked it clearly. From a modern point of
view it is desirable to make this distinction and accordingly what is here
called the justice of transactions is not identical with Aristotle's rectificatory
justice, but is confined to those situations where it is fair that one citizen
should restore something to another citizen, compensate him for a wrong
or pay him for goods or services rendered. This form of justice, unlike justice
between citizen and State, presupposes that some transaction has taken place
between the claimant and the person against whom the claim or complaint is
made. Such a transaction may be a direct one, as when there is a contract be-
tween parties, or where the claimant is the victim of a delict committed by the
other party, or again when the dealings between the parties have given rise to
a claim for unjust enrichment. On the other hand the transaction may be
indirect, as in certain cases of contract in favour of or binding third parties, of
unjust enrichment by or against third parties and of delicts affecting third
parties. This does not affect the description of the form of justice involved,
namely the justice of transactions, because the claim is one by an individual
citizen against another individual citizen without reference to the remaining
members of society, and always arises from a particular transaction.
The object of this form of justice is, then, the restoration of the original
position or its equivalent. It seems proper to call this a form of individual,
not of social justice, 14 since the claim to which it gives rise is directed solely
toward other individual citizens and cannot be conceived as a claim against
other members of society as a whole. Nor does it involve a comparison of the
treatment received by the claimant with the treatment accorded to others.
From a social point of view the restoration of the status quo or of a state of
affairs that approximates to it, although in itself a fair objective, does not
necessarily produce a situation which would be described as a completely fair
one.' 5 This is because the status quo is not necessarily itself regarded as rep-
resenting a fair allocation of advantages among members of society. This form
of justice therefore possesses a conservative tendency1" and, while it would be
unfair not to give effect to it, we cannot conclude that the state of affairs
produced, when effect has been given to it, is a fair state of affairs.
But, so far, this only means that cases alike in the respect prescribed by the
rules should be treated alike, not that cases alike in some other respect should
be so treated. Thus if the rules prescribe that every adult citizen shall have the
right to vote, this means merely that cases alike in that they are cases of adult
male citizens shall be treated in that way, namely by being allowed to vote.
Where human beings are concerned there are always similarities and differences
between any two members of the class in question. The principle of treating
like cases alike is therefore an empty, though as we shall see not a merely formal
one, until we know in what respect the cases are supposed to be like or unlike.
If the rules prescribed that those of a certain height or religious belief should
alone be allowed to vote, this would be condemned as constituting an unfair
discrimination against those not of the right height or religion. Yet a judge
or official, who applied these rules impartially, though he would be discriminat-
ing unfairly, from one point of view, against the underprivileged category,
would in doing so conform to the rules laid down; and in that case his conduct
could not be called unfair or unjust, so far as the principle of conformity to rule
is concerned. Thus persons not of the prescribed height or religious belief, who
were denied the right to vote, could not complain of unfair treatment in relation
to other persons falling within the same category.
2
It is perhaps worth noting that, contrary to what is sometimes asserted,
the principle of conformity to ru'e cannot be made to yield the principle "treat
unlike cases unlike". Thus if a rule prescribes that adult male citizens shall have
the right to vote, this means that those men who are alike in possessing the
characteristics of being adult male and citizens should be treated alike in respect
of the right to vote. But we cannot conclude, and it may be quite false to assert,
that those who do not fall into this category are to be denied the right to vote,
for instance that adult women who are citizens have no right to vote. It is a
merely contingent matter whether such a rule should be interpreted e contrario
so as to exclude the right to vote in the case of all those who do not fall into the
category mentioned. Nor does the fact that a certain category of men are
forbidden to act in a certain way, for instance, hotelkeepers to operate without a
liquor license, imply that the conduct in question is permissible in the case of
persons not falling within the category mentioned. It does not follow from the
fact that hotelkeepers may not operate without a liquor license that all other
members of society may do so.
The principle "treat unlike cases unlike" is in fact not part of the notion of
justice, or of social justice in particular, and represents rather an inaccurate way
2
of stating the following idea. There are certain principles of discrimination,
such as the principle of justice according to desert,2 2 of justice according to
choice and of justice according to need;2 3 and, according to these, it is not
20
E.g. Hart, The Concept of Law, 155.
"Below p. 86.
"Below p. 93.
23BeIow p. 91.
M GILL LAW JOURNAL [Vol. 8
unfair to treat cases which are dissimilar in respect of the criteria listed in a
dissimilar way. But this does not carry with it the conclusion that it is fair
so to treat them, because the fairness of the treatment depends not merely on the
presence or absence of factors justifying discrimination, but on the principles of
social justice, of which the demand for conformity to rule is only one. It does
not follow from the fact that discrimation is sometimes fair that it is fair
whenever the rules happen to prescribe discriminatory treatment.
Furthermore the maxim "treat unlike cases unlike", even if it represented the
truth, would only apply when the conditions, subject to which the rules
prescribed unlike treatment, were actually obtained. In the case of the justice of
conformity to rule it must be stressed that the existence of a rule, prescribing
certain treatment for persons in a certain category, does not necessarily entail
the existence of a rule prescribing different treatment for persons not in that
category.
The claim of each man to be treated no less favourably than his fellow-man,
if both fall within the category prescribed by the rule and both fulfill the
conditions mentioned in it, is not the empty generality which at first sight it
appears to be. Thus, it is not confined to dases where the rule involved is a legal
one. It would be regarded as unfair for a father, who had a habit of giving his
married children $100 each for Christmas and his unmarried children $50 each,
to abandon this practice or habit without warning and to give his unmarried
children $100 each, his married children $50 each. The reason why this would
be condemned as unfair is that the claim that our fellow-men should conform to
rule is not based merely on the fact that the rules under consideration are legally
or morally binding, that is, are prescriptive rules. The principle of conformity
is not merely regarded as giving each member of society a legal or moral right
to equal treatment, but is partly based on the fact that failure to conform to
rules, whether binding or not, disappoints expectation reasonably entertained,
infringes human dignity and so is unfair from a second point of view. What is
involved when rules are jettisoned is not merely discrimination when there is
an obligation, moral or legal, not to discriminate; discrimination is objection-
able whenever it disappoints or defies expectations reasonably entertained.
The demand for conformity to rule is therefore partly based on a claim for
consistent treatment, whether obligatory or not. Nor does it matter whether
the course of conduct, which consistency has demanded, is itself rational or not.
In the case of the father and the Christmas present, the father has changed from
a rational mode of distribution, namely one based on the need of his children,
to an irrational mode which disregards their needs. But it would also have been
unfair to the unmarried children, if the father had previously given the un-
married children $100 for Christmas and the married ones $50, to change
without warning and thereafter to give the unmarried children $50, the married
children $100. This is true despite the fact that the father would then have
changed from an irrational mode of distribution to a rational one basied on need.
No. 2] SOCIAL JUSTICE
The reason why the change would be unfair is that it would disappoint the
expectations which the unmarried children have reasonably formed, and
affront their dignity.
The demand for conformity to rule prevails in practice even when the rule
in question is a mere habit and not morally or legally binding. Of course it
does not operate unless some advantage or disadvantage to the claimant, the
individual citizen, is involved. Thus, it may be immaterial to A whether B
follows the usual habit of taking off his hat when he meets a lady. A is not
entitled to demand conformity to habit or rule in this case, because he derives
no advantage from it. But it is otherwise if we consider the point of view of
the lady whom we may call C. She has in the past had the advantage of B's
courtesy and so is entitled to complain if B without warning abandons his
former habit and keeps his hat on when he meets C. What is more, she can
complain of unfair treatment if B continues to take off his hat when he meets
another lady, E, since this, besides disappointing her expectations, infringes
her dignity. The demand for conformity to rule does not therefore essentially
depend on the character of the habit or obligation involved, but on the existence
of a regular practice which gives rise or may reasonably give rise to an expecta-
tion on the part of the citizen affected, whether to his advantage or his disad-
vantage, that the rule will be adhered to. The citizen is entitled to protection
against irregular or unusual discrimination.
Now such a principle cannot be described as one of a merely formal character.
The protection of reasonable expectations and of human dignity is the protection
of a substantial interest and illustrates a form of social justice. Of course it is
not the whole of social justice but it constitutes a necessary element in that
notion. It is in fact one part of what man as man is entitled to demand of his
fellow man: equal treatment in so far as the fulfillment of reasonable expecta-
tions is concerned.
It remains true, however, that the rules to which conformity has been
demanded may be of an oppressive or iniquitous sort. They may, for instance,
involve unfair discrimination on the basis of race or religion, as in the case of
the Nuremberg anti-Jewish laws and the apartheidlaws in South Africa. The
rigorous and impartial enforcement of such laws may well be called, in a certain
sense, not unfair. Harsh though they may be, impartial enforcement will be
held less unfair to the person against whom they are enforced than if their
application was partial or capricious. On the other hand, it would be wrong
to describe the rigorous and impartial enforcement of rules or laws which are
in themselves unfair as being itself a fair or just action, or as producing a fair
result.2 4 The way to describe this situation is rather to say that provided the
rules are followed, the enforcement of them against A and B indiscriminately
is not unfair to either, whereas the enforcement of them in the case of A would
'4An extreme form of the view that (legal) rules cannot be unjust is stated by Hobbes, Leviathan,
ch. 30.
McGILL LAW JOURNAL (Vol. 8
be unfair to A if B, who fell within the same rules, because he fulfilled the
conditions laid down for their application, was not treated as prescribed by
the rules. Conformity to an unfair rule does not create a fair or just result but
rather one which is not unfair relatively to any individual person falling within
the rules who receives the treatment prescribed by it. We cannot in fact say of
a particular situation such as this that the result is either fair or unfair. The
dilemma cannot properly here be imposed. We may conclude that conformity
to rule is a necessary element in the notion of social justice but is not conclusive
of the fairness of the result produced when it is applied. It is an element in the
notion of social justice because it expresses a demand properly voiced by men
as members of society against their fellow men: but it is not the whole of
what they may properly and fairly demand.
performance is. 2 8 The reason why it is fair to appoint the best qualified, i.e.
the most promising candidate is that, although this cannot be regarded as a
reward for past work, it can be based on the promise of future work. A, who is
likely to achieve more than the other candidate B, is therefore the right person
to appoint. It seems then that the principle of desert can be applied either when
advantages or disadvantages are allotted according to actual performance or
when they are allotted on the basis of potential performance.
Similarly, it may sometimes be fair to punish an offender who is potentially
very dangerous more severely than one who is less dangerous, though their past
conduct has been similar; so that in this type of case too, potential performance
may be taken into account. The principle however is one to be applied with
caution: potential performance is a criterion of desert primarily when there is
no adequate evidence of actual performance.
A second point requiring elucidation is this. The principle of distribution
according to desert seems to depend on the notion of proportion. 29 According
to some, this is a key notion in the analysis of the concept of justice as a whole.
But it seems that, the notion of proportion, though important, can easily be
overstressed. For one thing, there are situations where this notion does not
apply, even when the principle of justice according to desert is in question.
Suppose that one theatre ticket or one school place is available for distribution.
A and B are the claimants. A distribution proportional to desert or proportional
to any other factor, such as need, is here impossible, since the ticket or school
place is indivisible. What is here regarded as fair is that priority should be
assigned to the claimant with the greatest merit or desert, not that the thing
available for distribution should be distributed in proportion to the merits of
the various claimants. The notion of proportion therefore must be supplemented
by that of priority, in order to cater to those, cases in which the distribution
of indivisible advantages is in question. The citizen with the greater desert has
the prior and greater claim, not just the greater claim to those goods which are
to be allocated.
Thirdly, the notion of distribution can itself be criticised as apt to mislead
in some contexts. The picture apt to be conjured up by it is that of material
goods being allocated to different members of society. No rational distinction
however can be drawn between the following categories of 'advantage', using
that word in a wide sense: (A) material goods, (B) incorporeal things such as
copyrights, contractual rights, etc., (C) interests which are not legally regarded
as property but which are legally protected, such as life, health, honour,
reputation, and (D) opportunities or facilities such as the right to vote, to
"t Alternatively, allocation according to capacity might be regarded as a separate principle of
(discriminatory) justice. Hart, op. cit., 159. Raphael, op. cit., 21 Philosophy 125 fT. Although the
latter plausibly argues that allocation on the basis of capacity does not involve inequality, though
it does involve differentiation, I think it safer to assume that it does or may involve inequality
sometimes.
29Aristotle, Nicomacl,aen Ethier, Book 5, ch. 1-3.
No. 2] SOCIAL JUSTICE
have free education, to leave property by will, travel, etc. These latter are not
protected primarily by legal claims but involve the exercise of legal powers
coupled with privileges. It seems that interests such as life, health, etc., can
with difficulty be thought of as distributedby society to its members. We can
all agree that, if it were necessary to choose between saving the life of A or B,
it would be proper to consider the merits or deserts of them both before making
a decision. It would not be unfair to select the more deserving, if such a painful
choice had to be made. Similarly as regards health, if there were time and
opportunity to operate on one of two persons A and B in order to save his
eyesight, it would not be unfair to select the more deserving of the two. But it
would not be natural to speak of such a choice as involving the 'distribution'
of life or health between the two. It is for this reason that the terminology
of Aristotle, namely that of distributive justice, hardly seems adequate to
express the principle of justice according to desert.3 0 It is more accurate to
think of this form of justice as one according to which claims, whether to
property in the legal sense or not, are to depend upon the relative merits of the
claimants.
Finally there is the question whether, as I have so far assumed, punishment
is rightly thought of as illustrating a form of justice according to desert.
Clearly there is no complete parallel between reward according to desert and
punishment according to desert. This is best seen by considering the claim of
the citizen who is entitled to demand fair treatment and complain of unfair
treatment. The citizen who deserves a greater reward is entitled to claim it
and to complain if he does not receive it. But the citizen who deserves a greater
punishment is not entitled to nor would he in fact claim it. No unfairness
to him is involved in failing to assign to him the appropriate or indeed any
punishment. The failure to see this stems from a failure to think of justice
as involving claims.3"
Nevertheless a person who has committed a wrong may be unfairly treated
by being punished in circumstances such as the following. Suppose that A and B
have each committed a crime of similar magnitude and type, for instance, that
each has stolen an automobile. Primafacie it is unfair to B to punish him by
sentencing him to a year's imprisonment for a crime similar to that for which A
receives only six months' imprisonment.3 2 That is to say, B has a claim not to
be punished more severely than a person who has committed a crime similar in
3
OAristotle's position could however be improved by adding to the notion of distributive justice
that of redistributivejustice. But even this is not quite adequate for cases such as those mentioned in
the text.
t
K laims are psychologically primary, as Rousseau noted: "lepremier sentiment de ]a justice ne
nous vient pas de celle que nous devons, mais de celle que nous est due". Emile II, 87.
2'As I am concerned to analyse the modern concept of justice it seems immaterial that Aristotle
thought it unjust that a free man and a slave should be punished equally for the same offence. See
Mqna Moralia i XXXIV 1194a 31. Usually such discrimination is nowadays openly based on utility,
not justice, or on the spurious reasoning that some persons, e.g. negroes, are less sensitive to suffering
than others.
McGILL LAW JOURNAL [Vol. 8
magnitude and type. In the same way when rewards are being considered, a
person who has done the same amount and quality of work as another has a
claim not to be rewarded less than the other. This does not entail that a person
punished no more severely than a person who has committed an equally serious
offence has been fairly punished. It means only that he is not unfairly punished
so far as his relation with the other offender is concerned. 3 In order that he
should be said to be fairly punished, it would be necessary to show that the
level of punishment is itself fair, a point to which I advert later. It would also
be necessary to show that the rule for the breach of which he has been punished
is itself a fair one. Even then, it is necessary to point out that justice and fairness
are not the only factors involved in punishment and indeed, on one view, ought
not to be taken into consideration at all. Regard for the protection of society
and for the perfection of the individual also have their necessary and perhaps
predominant place among the objectives that those who legislate or judge
should bear in mind.
There is another respect in which the parallel between earning a reward and
earning a punishment breaks down. We have seen that besides the question of
allocation of rewards in a certain proportion and according to a certain priority,
there is or may be a residuary problem about the allocation of surpluses, that is,
of benefits surplus to those which the principle of justice based upon desert
requires to be allocated. But there is no similar question whether the whole of
all possible or available punishments should be allocated to wrongdoers, that
is to say there is no question about the distribution of surplus disadvantages.
It is immaterial from the point of view of justice whether prisons are kept full
and hangmen busy. Indeed no one would think of arguing that this is the case,
while on the other hand an argument that it is fair to distribute all available
advantages to the members of society is certainly a plausible one.
This perhaps teaches us something about the scope of the principle of justice
according to desert. As already mentioned, this principle involves the notion
of proportion and priority, of greater or lesser rewards or punishments. But
these are relative notions, and there remains a further problem, namely a
problem of the level of revards and punishments. How are we to fix the appropriate
level of each? It seems natural to say that the levels of rewards and punishments
should be fixed in such a way as to maximize rewards for advantages and to
minimize punishments or disadvantages. In other words the level of rewards,
should be as high as possible, or at any rate should be at the highest level
compatible with the demands of other values such as preservation of society
and individual liberty. Again the level of punishment should be as low as
possible, that is to say should be set at the lowest level compatible with the
protection of society from the depredations of wrongdoers. But neither of these
principles bearing on the level of reward and punishment can be derived from the
principle of justice according to desert, unless we say, what is highly im-
a.,The idea of demerit ... signifies the removal of a claim normally present... justice stands aside,
for it is satisfied that its claims raise no obstruction". Raphael, 51 P.A.S. 178.
No. 2] SOCIAL JUSTICE
that the satisfaction of needs is not something which they are entitled to claim
as members of society rather than by virtue of their choice of conduct.
The principle of justice according to need is one which would generally be
recognized at least in appropriate cases. Thus if a gift of $100 is to be distributed
between A and B, the fact that A's need is greater than B's would be a factor
fairly taken into consideration and would justify giving A a greater share.
Nor is the notion confined to the distribution of gifts. A person in need, for
instance, a person who is unemployed or ill, is regarded as having a claim,
derived from his need, to a contribution by his fellow men, to help to relieve
his lack of earnings and his ill health respectively. 6 In fixing salaries and
wages the need of citizens is often taken into account. Thus where one employee
is married and has a family he is often awarded more than an employee doing
similar work who is unmarried. A comparable principle is often observed in
the imposition of burdens. Thus progressive taxation according to income or,
in the case of estate duties, to capital rests on the principle that the need of
those who have a higher income or have greater capital assets is less than that
of the persons who have a lower income or capital assets. The need principle
like the merit principle therefore applies not merely to the allocation of
advantages but to the allocation of disadvantages. Again however the parallel
is not complete, since it would be wrong to assert that the person whose need
is less, because he is wealthy, has a claim to be taxed more heavily than a
person whose need is greater. The position would be more correctly stated if
we said that a person whose need is less is not unfairly treated in relation to
other taxpayers if he is taxed more than a person whose need is greater. But it
is not true to say that the tax imposed on him is necessarily fair since this in
turn is dependent upon whether the total level of taxation is itself fair.
It is plain that the principles of justice according to desert and justice
according to need can and often do conflict.3 7 The analysis of these notions does
not in itself enable us to say how such conflicts are to be resolved. Nevertheless
there would I think be agreement on a general approach to the resolution of
these conflicts. The different advantages which citizens claim and of the
deprivation of which they complain may be arranged in an order of importance.
Thus life may be regarded as more important than health, health than recreation
and so on, although all three are properly described as needs and as advantages
which men generally desire. -The order of importance depends partly on the
choice which most men would make if confronted with the alternative of
selecting one or the other. The hierarchy of importance will depend, then,
partly on the extent which the advantages in question are in fact desired, and
partly on the extent which they actually conduce to well-being, that is to a
happy and complete existence.
"$o distribution should undo excess, And each man have enough". (Shakespeare, King Lear
Act IV sc. 1: cited by Del Vecchio, op. cit., 148.)
3T
Del Veccbio, loc. cit. Aramburo, Filotofla del derecho 1 388.
No. 2] SOCIAL JUSTICE
Now the natural solution of the problem that arises when there is a conflict
between the principles of justice according to need and justice according to
desert will be somewhat as follows: the more important the advantage in
question the more weight will be given to the principle of justice according to
need. Conversely the less important the advantage in question the less weight
will be given to the principle of justice according to need and the greater
weight to the principle of justice according to desert. Thus if A's life is in
danger his need would generally be held to prevail over his lack of desert, no
matter how extreme. It would be thought that he had a claim to be rescued
or to receive the appropriate medical treatment even if he had done nothing
especially deserving during his life or had been guilty of serious misconduct.
It is of course a matter of controversy where the point comes at which demerit
outweighs the claim to life which every member of society normally is thought
to possess. The controversy about capital punishment illustrates this very
clearly. On the other hand if the question was whether an opportunity of
recreation, such as a place on a football team, should be afforded to A or B, and
A was a better footballer than B, A's deserts would normally be held to out-
weigh the greater need which B could adduce on the ground that he had fewer
opportunities for recreation. This is because recreation is a less important need
than health or life. There will be intermediate cases where the weight of the
conflicting principles is more nearly equal and then it will be a delicate question
to strike a balance.
If this analysis is correct, the principle of justice according to need is
regarded, at least by our modern consciousness, as a more fundamental one than
the principle of justice according to desert. It is more fundamental in the
sense that it is held to outweigh the latter principle when those advantages
which are of fundamental importance, that is, those which are most generally
esteemed and are most conducive to a full existence, are concerned. However,
just as in the case of justice according to desert, it would be found that there
are problems falling outside its scope: for instance the problem of the relative
claims of those citizens whose needs have been satisfied. Such cases might be
covered by the desert principle but, again, we have seen that this has itself a
limited scope and in principle does not solve the problem of the appropriate
level of reward and punishment.
men are entitled merely as members of society and apart from their choice or
conduct to claim any advantages from their fellow men. If they are so entitled,
what is it which they are entitled to claim?
It is already clear that mcn are entitled merely as such to claim something
from their fellow men, namely conformity to rules whatever they may be. This
claim is based in part on the notion that reasonable expectations should not
be disappointed, in part on the notion that that form of discrimination is
objectionable, as an affront to B's dignity, which fulfills the expectations of
A but disappoints those of B. This, as we have seen, is a form of social justice
because it expresses a claim that belongs to man as man apart from his conduct
or choice. Again, we have seen that, when the notion of justice according
to need was examined, another form of social justice emerged, namely that
according to which men have a claim as men to those advantages which are
necessary in order that a decent and full life may be made possible.
It would be surprising if the principle of social justice 3 1
protected the single
types of interest already examined, namely the interest in conformity to rule
and the interest of those who are in need, and not other human interests.
Once it is admitted, indeed, that reasonable expectations are the subject of fair
claims by men as men, there seems no principle by which we can deny the
existence of similar claims, not only in the case of bodily health, shelter, food,
clothing and other advantages which would rank as necessities, but also of
recreation, travel, opportunities for amusement and education and those other
advantages which might not be classified, at least in all societies, as human
needs.
Again, it would be surprising if one particular form of discrimination,
namely discrimination between persons in respect of their reasonable expecta-
tions, were regarded as objectionable and other forms of discrimination regarded
as acceptable. Can any rational distinction be drawn between discrimination
in respect of reasonable expectations and discrimination in respect of other
interests whether falling within the notion of necessary advantages or not?
Clearly a wider principle is involved and we must ask in what this principle
consists.
A number of arguments tend to show that the wider principle of social
justice consists simply in the claims of all men to all advantages and to an
equal share in all advantages which are commonly regarded as desirable and
which are in fact conducive to human well-being. The first is an argument
based on the analogy of the principle of the justice of conformity to rules.
The principle of conformity to rule involves not merely that discrimination is
objectionable but that any failure to conform to rule which disappoints reason-
able expectations can be criticised as unfair. Thus, if the principle that all men
3'For further discussions of the principle see Schratrenholzcr, So~iale Gcrtchtigkcit (1934); Hbffner,
Sotiale Gerehtigkitund So-iale Liebe (1935); Schuster, Das Verhatnis von justitia legalisund distributiva
zjrjurtitiasocialisin "Quad.an.': Scholastik XI 225-242; Brucculkri, La giusti'iasociale (3rd cd. 1942).
Montano, Justicia ocial y reforma constitutional(1948).
McGILL LAW JOURNAL [Vol. 8
have a right that their reasonable expectations should not be disappointed is
extended to other advantages, we arrive at the proposition that all men have a
claim to an equal share in all such advantages, and this is the principle of
social justice for which I am contending.
The second argument is of an empirical character. We observe in practice
that the claim to equal treatment naturally commends itself at least at the
present day to most people. In fact children begin from an early age to advance
this claim vis-A-vis other members of the family. Parents notice that the basic
demand made by their children is for equal treatment in all respects; the excep-
tions which are made to this on the ground of desert or choice are of a sophisti-
cated character and come to be accepted only when children attain a certain
degree of understanding. They are modifications of the basic demand for
equal treatment in all respects.
This demand is not confined to food, toys or material things but extends to
opportunities for entertainment, recreation, education, travel, etc., and is in-
deed of a quite general character. The family being the basic unit of society
or at least the unit to which we are all introduced first, it seems likely that
the demand voiced by adults for equal treatment is modeled perhaps uncon-
sciously on the habits they have acquired as children of demanding equal treat-
ment from their parents. In other words the demand for fair treatment which
children formulate as children in respect of their parents becomes the demand
which adults formulate as members of society in respect of their fellow men.
It is true that the demand for equal treatment is not identical with the equal
claim of all men to all advantages and to an equal share in all advantages.
'Treatment' covers a wide spectrum but not the whole field of vision. However
the step by which this becomes generalized to cover those advantages which
do not strictly speaking consist in treatment by our fellow men is a natural one.
A third argument is as follows: there exists a general conviction in modern
society that all unjustifiable or irrational discrimination is objectionable. This is
not a mere formulation of the demand for consistency which forms an important
element in the notion of conformity to rule. Irrational or inconsistent behaviour
is open to criticism even when human beings are not involved or affected by
it. Thus a person who gives one rose bush twice as much water as another
apparently similar bush may readily be called upon to explain his action and to
justify it, though he cannot be accused of unfairness.
It is arguable that our judgment would be different even when a non-human
but conscious being such as an animal is involved. 40 Thus if a man gives one
cat twice as much milk as a cat of a similar size and appetite, it will be thought
that his conduct not merely calls for explanation and justification, but is open
to criticism that he is acting unfairly toward the cat who receives less. This
40On justice among animals sce Dcl Vccchio, op. cit., 99 ff. Salt, Ls droits de ranimal considirls
danr leurrapportarec le progrts social (1900); Goreti, L'animralequal soggtto di diritto, Riv. di filosofia
XIX No. 4, pp. 341,-369.
No. 2] SOCIAL JUSTICE
criticism clearly depends upon the assumption that the less-privileged cat is
capable of knowing that he is receiving less than his fellow. The notion
involved seems to be that the consciousness that a rational creature is subject
to discrimination is itself an evil or disadvantage to be avoided as far as possible.
This is true in particular if the notions of justice according to merit or need
do not modify our assessment of the situation. Thus suppose two cats are
equally deserving and suppose that neither needs more milk in order to live
happily. It still remains true that it is objectionable to discriminate between
them.
The point can be made more forcibly in relation to children, of whose
consciousness of discrimination we are in no doubt. When adult human beings
are in question, the discrimination is still more keenly felt to be unfair, since
they have a fuller appreciation than children of what it involves. It is true
that discrimination appears objectionable chiefly to those who think of them-
selves as belonging to the same category as those against whom the discrimina-
tion operates, (cats, children in the same family) or as belonging to a superior
category, namely one which in the opinion of the person in question is entitled
to more than the category against which discrimination operates. Thus if white
men think that white men belong to a category superior to negroes they will not
find discrimination against negroes and in favour of white men objectionable
though they will find discrimination of the opposite type objectionable. But
such belief in superior and inferior categories is not innate; it has to be learned.
We naturally and unreflectively think of ourselves as belonging to the same
category as our fellow men. A child does not naturally entertain notions of
separate social, racial, religious or economic categories, but has to be taught
them.
It is perhaps not easy at first sight to state what exactly the notion of discri-
mination means. 4 Discrimination must mean discrimination between classes
which have something in common, in this case between human beings who
clearly have many characteristics in common. It most naturally applies to the
denial of opportunities to A which are accorded to B, e.g. opportunities of
education, travel, using public transport, etc. Similarly the refusal to distribute
to A goods that are distributed to B would be regarded as a form of discrimina-
tion. But are we to describe as discrimination the inaction of a person or govern-
ment who does not intervene in the affairs of society, for instance, does not
provide free education for anyone and leaves each family to fend for itself so
far as education is concerned. Strictly speaking it would seem that no discrimi-
nation is involved in such conduct or inaction. All that is done is to give
effect to the liberal notions of the last century that each person should fend for
himself and that the State should refrain from interfering in the affairs of its
4In one sense 'discrimination' is consistent with equal treatment. Thus, if A likes whisky and
B likes beer, it is consistent with the principle of equal claims to give each what he likes; yet, in a
certain sense to do so is to discriminate i.e. to differentiate between the two. But 'discrimination'
is here used of those differentiations which produce unequal satisfactions.
McGILL LAW JOURNAL (Vol. 8
laws merely give effect to this choice, or that members of one race have less
urgent and compelling needs than those of another; or finally that members of
one race are less deserving and meritorious or 'capable' than another. The
latter argument was the one which Aristotle adopted in his attempt to justify
discrimination between free and slave, Greek and barbarian. 43 He asserted that
in principle the capacity; that is to say, the potential achievement of slave
and barbarian was different. It will be seen that the flaw in this argument
resides partly in errors of fact,. for instance in a false belief in the different
capacities of different races, where this is not borne out by the evidence, or in
a belief that people prefer discrimination when in fact they do not. Partly the
flaw lies in a failure to recognize that these justifications are exceptions to the
general principle of equal claims.
Secondly, it may be argued that the list of exceptions is so long and vague
as to empty the general principle of any real content. But it would seem that
the exceptions are in fact limited to those listed. An apparent further exception
occurs in the case of those incapacities which the law imposes on those incapable
of managing their own affairs, such as minors and prodigals.
The desirability of imposing these restrictions rests on the fact that, if they
are not imposed, the interests of the person concerned may be harmed; but this
is not in itself a fair reason for intervening, otherwise one might fairly intervene
in the affairs of another in a manner involving discrimination against him
whenever it was in his interests to do so. This would certainly not be an
acceptable principle.
The restrictions in question rest partly on the principle of justice according
to need, partly on that of justice according to choice. 44 Since there is a hierarchy
of advantages, it may be fair to restrict or refuse a lesser advantage in order to
preserve one of which the person concerned has a greater need. Hence a minor
may be prevented from alienating immoveables in order to preserve the greater
advantage of his claim to a home and shelter which is more important than
the power of alienating property.
But the restrictions rest in part on the principle of justice according to choice,
since a minor along with other categories of persons under disability is thought
of as incapable of making a free and considered choice. Just as by the principle
of justice according to choice those who choose to forego their claims are
entitled to nothing, so those who choose to claim benefits but whose choice
is imperfect are entitled to less in certain cases. In some such instances, but
not all, the principle of justice according to desert also plays a part.
It has not been shown therefore that any principles of discrimination other
than those listed are in fact accepted as forming part of the notion of justice.
Although these principles cover a wide field, they are not all of equal
3
4 politiS i,ch. ii, 3-22.
"4And, still more, on social utility; but the latter is not a principle of justice or equity; it is a
political and legal value which often conflicts with justice. Raphael, op. cit., 21 Philosophy 131.
McGILL LAW JOURNAL (Vol. 8
importance. Thus, the justice of conformity to rule being based on the idea of
protecting reasonable expectations, is consistent with change, since when
reasonable notice of changes in rules or habits has been given, then the unfair-
ness of departing from rules previously accepted disappears. Indeed even without
such notice, the principle of conformity to rule is, according to the notion of
equity, subject to some limited modifications in the interest of justice according
to merit and need. The notion of equity is not however accepted everywhere.
In a conflict between the principles of justice according to choice and the other
principles of discrimination the former will prevail, since a citizen may
voluntarily forego that which his desert or need or expectation reasonably
entitles him to demand. When there is a conflict between the principles of
justice according to desert and justice according to need we have seen that the
latter prevails when the more fundamental advantages such as life and health
are in jeopardy. From this we can draw a conclusion of some importance for the
analysis of social justice.
If we say that the need principle has precedence so far as these fundamental
advantages are concerned, and that discrimination is justified in such cases
(the man who is most seriously ill is entitled to the one vacant hospital bed,
the man with the largest family to the one vacant house in the district) we
have in fact discovered a further part of the principle of social justice. For if
certain needs are regarded as having priority and as justifying discrimination,
this means that a certain principle of redistribution or equalization is regarded
as forming part of the notion of social justice. Thus if A is in good health,
B in bad health, B's claim to medical treatment based on need prevails over his
lack of desert and justifies discrimination in his favour.
The theory underlying this must be that B and A should be placed in the
same position, so far as health is concerned, before the .principles of non-
discrimination and of justice according to desert are applied to both of them.
To put the matter slightly differently, each man as man has a prior claim to at
least certain essential advantages and this will involve a redistribution or
equalization of at least certain such advantages. The word "redistribution"
is perhaps inadequate to describe a claim to preserve one's life or health; it
applies more appropriately to those advantages which fall within the legal
notion of property; but it is here used in the absence of a better term. Now this
claim for equalization or redistribution is something which belongs to man as
a member of society and is therefore part of the notion of social justice.
It may be objected that such claims belong to men only by virtue of their
particular circumstanccs, and not as members of society. Thus it may be said
that A's prior claim to health arises from the special circumstance that he is ill.
But though it is true that the fact that particular circumstances are taken into
account distinguishes this type of claim from the claim that rules should be
observed or from the principle of non-discrimination, the objects to which the
claim is directed, life, health, etc., are not variable and do not depend on
No. 2] SOCIAL JUSTICE
individual circumstances. The truth is merely that in many or most cases the
demand has already been satisfied and it is not necessary or sensible to voice it.
If however we recognize that such basic claims are entitled to prevail when
the most important advantages are in question, are we not bound to say that
similar claims exist in relation to other advantages, but may be overridden by
principles of discrimination such as the principle of justice according to desert?
For on what principle could it be said that justice demands that equal claims
be recognized in regard to the most important advantages but not in regard to
the less important? Surely such claims must form part of the notion of social
justice and must be entitled to prevail in the absence of countervailing factors
such as desert. These in turn will explain and justify what was noted in the
discussion of justice according to desert, that we naturally think that the level
of claims as opposed to their distribution should be maximized. This cannot
be explained on the desert principle, but is explained on the view that social
justice requires that all men have a claim to and to an equal share in all, not
merely the more important advantages.
So far a number of arguments have been adduced to show that the principle
of social justice requires that all men have an equal claim to an equal share in
all advantages, and that the principles of non-discrimination and conformity
to rule are merely subordinate aspects of this basic principle. This is to say
that they are subordinate principles applying directly to the principle of social
justice in order to preserve particular advantages, namely the fulfillment of
reasonable expectations and the preservation of human dignity, which requires
equal respect for all and is inconsistent with discrimination. Two objections
may now be considered: 1) Is this principle restricted to advantages or does it
also extend to disadvantages? 2) Does the principle of social justice consist in
equal claims or rather in equality of opportunity?
1. It seems clear that the principle of social justice is confined to goods and
does not extend to disadvantages. The even spread of misery over the face of
society is regarded as neither fair or desirable. Otherwise social justice might
consist in imprisoning all members of society except the jailors. As we have
seen before no man has a claim to disadvantageous treatment; at most the
infliction of such treatment on him may not be unfair to him in certain circum-
stances, for instance, when he has chosen to commit a criminal act.
2. On the second point an argument might be adduced as follows. Equality
of opportunity is the essence of social justice, because we mostly believe, not
that all advantages should be equally distributed to all men, but rather that,
provided that all men have equal opportunities, distribution should be made
according to desert." Thus we do not generally think that social justice
requires that the income of all should be equal. The formula of equal claims
should on this view be abandoned in favour of the principle of equal
opportunities.
4Raphael, op. cit. 90, puts the problem thus: have men a claim to equal happiness or only to an
equal chance of pursuing happiness?
McGILL LAW JOURNAL (Vol. 8
But what exactly is meant by equal opportunities? Those who argue along
these lines probably have in mind such facilities as schools, hospitals, etc.,
that is the provision of opportunities for acquiring knowledge, skill, health etc
which will conduce to good work and to the enjoyment of life. The equality
of opportunity envisaged is an equality of opportunities for acquiring that
bodily and mental equipment which, so far as the citizen is capable of acquiring
it, will enable him to compete fairly with his fellow-man. But fair competition
and fair opportunities in this context can only exist if each citizen has an equal
claim to those sources of opportunity, such as instruction, books, medical
attention, sport, space, radio and television facilities, etc., which will put him
on an equal footing with his fellow-men, so far as he is capable of profiting from
them. There is therefore no inconsistency between the assertion that each man
has an equal claim to all advantages, subject to discrimination on the basis of
desert, and the principle of equality of opportunity, if it is interpreted in the
way suggested.
The principle of equality of opportunity is however, on another inter-
pretation, rather wider than this. On this second interpretation it is not
necessarily confined to opportunities of ac~tuiring capital, human or inanimate,
in order to work and earn and so, if the citizen works better than his fellows,
to become entitled to better treatment than they. Equality of opportunity may
be taken to apply also to equality of opportunities for enjoyment, that is, for
the enjoyment of literature, art, music, sport, recreation, the countryside, and
all those other advantages which are not directly relevant to an increase in the
quality or quantity of one's work. Now if these opportunities are to be
provided the citizen has a corresponding claim to those things which are
necessary in order that he may profit from them, such as access to amusements,
parks, concerts, playing grounds, television facilities, etc. Whether therefore
we take opportunity as meaning opportunities for earnings or opportunities for
enjoyment, the idea of equality of opportunity implies the existence of equal
claims for all men to the means and facilities necessary in order to seize the
opportunities listed. Of course it is senseless to speak of a claim to enjoy
something which the citizen is incapable of enjoying or to do work which he
is incapable of doing. In this sense the formula of equality of opportunity
serves to mark the point that no amount of social justice will do more than
extend and develop the capacities of citizens to their limit, whatever those
limits may turn out to be. But properly understood equality of opportunity is not
inconsistent with, but on the contrary presupposes the notion of equal claims.
It will be as well to summarize our conclusions on the notion of social
justice. The principle of social justice resides in the idea that all men have
equal claims 46 to all advantages which are generally desired and which are in
16I have not explicitly dealt with the relation between justice and equality; but it is obvious that
on the analysis here suggested equality is the fundamental notion, whilst inequality, though some-
times fair, is a subsidiary one On equality see Del Vecchio. op. cit., ch. V. Aristotle, Mg,:a Mo,.
i 11182a 14; Metaph'ysica ) V, 9.9S b 29. X1ll IN' 1078 b 23
No. 2] SOCIAL JUSTICE
fact conducive to human perfection and human happiness. This has two main
aspects: first, the equalization of the human condition as far as capital assets,
human and inanimate, that is, the prerequisites of a good life are concerned.
This involves equal claims to the necessities of life, to life itself, health, food,
shelter, etc., and also equality of opportunity for both work and enjoyment.
The second aspect of the principle of social justice consists in the principles of
non-discrimination and conformity to rule. These ensure that what has been
accorded under the first heading will not be taken away subsequently. There
are some exceptions to the principle of social justice, in particular to the
principle of non-discrimination. These exceptions fall under subordinate
principles of justice such as the justice of transactions, justice according to
desert, justice according to choice and justice according to need. There are no
further exceptions to be found.
It would be wrong to seek to disguise the radical character of the principle
I have attempted to describe. 47 According to it, there can be no difference in
principle between such generally accepted ideas as that there should be universal
free education for all children and other ideas which are not necessarily accepted
by everyone: for instance the claim for free medical treatment for all, the claim
that victims of road accidents should be indemnified by society irrespective of
fault, and the claim that the surface of the earth should be redistributed in
proportion to the population of different regions, or that natural resources
should be redistributed proportionately to population. It would be easy to
multiply the radical conclusions which would follow from the acceptance of
the notion of social justice as I have outlined it.
Of course it is true that justice is not the only political, moral or legal value.
Liberty is equally important and its demands frequently conflict with those of
justice. The preservation of society and of the individual is still more important
and may conflict with both. But on a long view, we have every reason to fore-
see that the consequences inherent in the notion of social justice, as it has been
elucidated, will be clearer and will be voiced more widely and more persistently
as time goes by. They are indeed beginning to be voiced already: thus the
demand for aid for underdeveloped countries is part of the demand of social
justice on a world-wide scale. But the full implications of the principle have,
I am convinced, by no means yet penetrated the consciousness of our society.
Many sober citizens will be startled when they do.
SUMMARY
1. The principle of social justice requires that all men should have a claim
to and to an equal share in all those advantages which are commonly
desired and which conduce to human well-being.
2. This principle is not identical with the demand for equal treatment for all
men; it rather requires preferential treatment for the underprivileged, who
lack advantages possessed by others.
3. The principle of allocation according to need is a subordinate aspect of
social justice.
4. The principle of conformity to rule is also a subordinate aspect of social
justice. This principle is designed to secure to all men two advantages:
that their reasonable expectations will be fulfilled and their dignity
respected.
5. Discrimination is justified only: (1) to give effect to the principle stated in
2 above; (2) on the basis of the conduct, actual or potential or choice of
the person to be subjected to discrimination; (3) so far as the justice of
transactions and special relations requires it.
6. It is arguable that, given the rough equality of human beings, the equal
claim principle is the only principle likely in the long run to lead to social
stability.