Ethical Subjectivism: Part 8

Justice and Punishment: What is Right and Fair?

In this section I come to some of the most difficult problems in ethics, ones I generally try to avoid. Nonetheless, what one ought to do cannot be determined without having some conception of justice. Humans being what they are, enforcement including punishment has to be a part of justice.

Included in this section are the related problems of generalization and similar circumstances. We must come to some general view about what is right, or how it is determined, or both. And, we must consider why people do what is right or wrong. This is a very complex set of issues, deserving of the many volumes written about them. My main purpose in  this work is to indicate how we might deal with this aspect of ethics within this normative network theory.

Our concern with justice, fairness and the like begins in infancy as egotistic demands. Infants want to be fed, cleaned and admired. They have methods of obtaining their wants, including gurgling, laughing, screaming and having a fit or temper tantrum. Those responsible for the infant's care - parents, siblings and other family members - are acutely sensitive to all of the infant's doings. Oddly enough, more remote acquaintances are even more sensitive to screeches, kicking and other communications emanating from infants. The positive or negative reactions of those around the family serves to reinforce of infant demands. Further, the interest of predators is aroused by the sights and sounds of a possibly unprotected infant, because that would be an easy mark. Possible predation  also serves to reinforce infant demands.

The reason infant noises and behavior work is not that infants have any power to satisfy themselves; on the contrary, they are almost totally helpless. They work because the mammalian brain is programmed to respond to them. Almost everyone has the same sensitivity to infant demands. Different adults of the same or other species and families just react to those demands differently, depending on their perceived relationship to the infant, a reaction which is also programmed. Among social species, such H. sapiens, infant demands serve to keep the family and tribe together just because of those programmed reactions. Mothers, especially, respond to their infants because of biochemical reactions that are the basis of bonding. Neural programming and mammalian chemistry are powerful tools which infants use to control the world from birth.

It seems not unreasonable to suppose that, from birth, infants view what is right according to how they are treated. From where they lie, getting food, clothing and attention when they want it is right, and other things are either indifferent or wrong. The infant starts by feeling entitled to good treatment: it demands what it wants. What is fair for an infant is fulfillment of its demands. Anything less is unfair. I think children always feel any restriction or punishment is unfair.

That sense of entitlement continues throughout life.  Everyone demands what they want, if they can. In the socialization process we learn not to express many of our wants because they impinge on the desires of others. I think there is always a conflict between our sense of self, of entitlement, and what we may have and do in  social contexts. The socialized person is part of an interactive network. The adult lives with a bruised ego,  so society reflects that. When there is a scarcity of goods, social norms bruise egos some more in order to distribute those goods fairly. Even when there is a surplus - for example, the excessive amount of sugar in food products - society must bruise egos "for our own good." We may think it unfair that we should not eat junk food, but our bodies will probably thank us for being restrained.

What is right or fair is determined in a social context, at least among intelligent adults capable of moral judgement (i.e., moral agents). Human beings don't start out as moral agents. They learn how to use ethical principles, make moral judgements and act morally as they grow up. I take that as a fact, which implies that there is no built-in intuition or moral faculty. Ethical behavior is based on individual learning and application of social norms. Those norms are stored in our culture; i.e., culture is social memory. Individual performance in the social context is noticed, and affects what others do. To the extent that a performance is associated with some social norm, the future application of that norm may be altered. When a performance reinforces a norm, it is an instance. When it alters the norm, it is  precedent. Since social norms are stored as individual memories, each somewhat different, the effect of a performance on a norm varies from individual to individual. When individuals affected by a performance subsequently use a social norm, their behavior may be changed as a result of the changed norm, which, in turn, propagates another wave of changes in the norm. In other words, social acts start chain reactions which behave like interfering light waves. The social network is composed of particular individuals, but is observed as an interference pattern or hologram. This analogy captures the sense of ethical principles that they are everywhere and nowhere at once.

Right or Good or What?

We ought to do what is right. Is this a tautology? Or is there is some other meaning to "ought" which encompasses more than "right," or vice versa.

I think "right" is a far less confused word than "ought," simply because we can associate it with "correct" or "required." The right answer is always the one demanded by the problem. It doesn't matter that different problems have different procedural rules: right applies to the choice of rules and solutions. When we work a problem, we might get the right answer using the wrong methods, or the wrong answer with the right methods, so methods and answers are two different things. There is also, always, a third factor in being right: using the correct principles or premises. Thus, in the simple problem 1 + 2 = 3, I must assume the problem is arithmetical,  I must know how to add, and I must know the numerical symbol tables in order to state solutions. Right, as used in logical, mathematical and scientific problems has a fairly definite meaning which allows students to take courses in those subjects and professors to give and grade exams. If nothing else, "right" means what the consensus says it is when it comes to matters of fact.

In ethics, however, the word is routinely overanalyzed and confuted with "good," a very slippery term. Because "right" is also a word for a moral or legal claim on others, some writers confuse what is right with someone's rights. But, having a legal right does not make a claim right or good, just legal. Having a moral right is usually derivative from some other ethical principle or maxim. It is sometimes asserted that moral rights stand on their own, as in "unalienable rights" or "inherent rights." I don't think this last position is tenable, as those making the claim would have to make some other arguments supporting it. Why is a right unalienable? Is it given by the gods or nature? Where would I find what is inherent? So, it is very doubtful that moral rights are self-standing and, if so, an independent determination needs to be made of the moral basis of that right. The question is, 'is it right that someone has that right?' This brings us back to an inquiry into what is right in the first sense, whether the conclusion is correct. Ethically right simply means morally correct, the morally approved answer to a problem. In this sense, "ethically right" or "morally right" is a specific application of the first sense, correctness, and means the same thing as "ethical" or "moral." For the reason that right is a synonym, and to avoid confusion with rights, I generally prefer not to use the word at all. (In case I do use it, I hope my intended sense of it will be clear from the context.)

A more serious problem is the association of ethically right with good. Does doing what is right bring about The Good? Does it create any good? In order to answer any questions about right when it is associated with good, we have to examine good. "Good" is another term I try to avoid, because I think it is hopelessly mired in endless, ancient discussions. There is the Platonic Good, and the religious connection of Good with the gods. Then there are economic, social and personal goods, instrumental goods, various ends which are alleged to be good, etc. Just what is morally good? I think the term is illustrated by Aesop's overloaded donkey. That beast got smart and dumped the excess baggage. I would prefer to solve the problem the same way.

I don't make any a priori connection between right and good. It is not at all clear to me that doing what is right always leads to what I would call good. If I like a result, I might call it good, but usually that isn't any help in predicting more results. In such cases, good is just an expression of my emotional state (it feels good) or my approval (it was the right result). It is true that, if I felt something was good, I might be motivated to repeat the experience, if I have any control over having that experience. In the welter of goods heaped on us by ourselves and our ancestors for five or ten thousand years, some of them might have something to do with what is ethically or morally right; then, again. maybe most  are irrelevant. For practical reasons - I don't want to write many volumes just to distinguish the varieties of good - the simplest thing to do is eject the term from this discussion, except in  specific cases where we can determine a specific use or definition.

The same problem occurs with "ought" and "should," but I am more sympathetic to these words as I believe they can be pinned down to motivations - feelings. When we say that someone should do something, we are making a recommendation. "Should" is usually an urging to do something, for which the one urging can provide reasons. Sometimes "should" is used in the sense of ought, which is a much stronger urging, more like a command. Kant certainly took "ought" in the sense of a command, rather than an urging, and did not discuss "should." At this point, the difference between right and should or ought is already noticeable; that we ought to do what is right is not a tautology.

When "should" is used, as in 'I should do this,' there is a range of options in mind; viz., this, that and the other thing. So, the thing I should do is a selection from a background, and that implies a reason. Here, "reason" need not take on some abstract or intellectual tone, nor imply a faculty of reason, nor a moral faculty. Reason is simpliciter the method of making the choice. Maybe I should do this because I like blue and gold designs. Maybe I should do that because I need another cup of coffee. Maybe I should do the other thing because, after long reflection and calculation, it was the best ( most probable of success) thing to do. Reasons can be lots of different things, and all of them might be used to justify a should.

What I think distinguishes "should" from "ought" is the  urgency and range of the recommendation. Ought focuses on a very narrow range of performance: Do this! That focus also increases the sense of urgency or necessity of the ought, as in 'you ought to apply a tourniquet to stop the bleeding.' When urgent about a single performance, ought is a demand, not a recommendation.  To bring the terms in the same class, ought can be taken as the strong form of should. Like should, ought implies reasons for the performance it recommends, but these reasons are stronger in so far as they select a single performance or very narrow range of performances. In 'you ought to go to the store,'  "store" is potentially a variable specifying a range of performances which would fulfill the ought. But, in 'you ought to punch him out,' only one act will do. I note that the urgency of an ought is not related to the range of performances; rather, urgency is its emotional tone. 'You ought (as in must) to stop the bleeding,' is far more immediately directive than 'you ought to take your pills pretty soon,' even though both state a particular thing which needs to be done for a reason. Again, going to the store or other such oughts can be stated just as urgently as 'stop the bleeding.'

This last phrase points out a peculiarity of oughts: when they became direct commands, the words "ought" and "should" are no longer necessary. Commands go beyond recommendations. Although commands may have reasons to support them, they imply some mechanism of enforcement. Commands are external to the agent: the thinking has been done elsewhere. It is possible to disobey a command, but disobedience is not always involved in not doing what one ought or should. Kant tried to explain the sense of moral compulsion people often have by turning an ought into an imperative (i.e., a command). But, I think that is a strategic error, because commands remove voluntary choice from the performer to some other entity. In such cases, if there is any ethical issue, it lies with the one giving the orders, not with those following them. There is, of course, the exception that moral agents who obey commands by choice thereby accept onto themselves the full moral responsibility for what they do. Since moral responsibility includes not only what is done, but why it is done, prudent moral agents should fully inform themselves before acting. If, however, a moral agent chooses to blindly obey, that is, to become a zombie, that individual cannot object to anything that might befall it if and when the command is called to account. 'Following my orders' is only an excuse when no thought was ever given to obedience; i.e., the performer is a robot.

'You ought to do what is right' means 'you ought to do what we have already determined are the correct solutions to the problems before you. But, doing something because we believe it is right is not always doing what we ought, because we might be mistaken or misinformed about what we ought to do. The problem gets worse when we ask whether doing what is right produces the good, or any good. The same is true of the relationship between ought and good.

The upshot of this initial discussion is that good, right and ought (or should) are all different things. Before proceeding, I need to bring about a few other ideas.

Fairness

This seemingly simple word is just as hard to define as right or good, perhaps because each person has a different understanding of it. What seems fair to me is not necessarily fair to you.

"Fair" has social dimensions that are potentially lacking in right, good or ought, because what is fair always involves more than one person. Our moral agent on a desert island might imagine itself doing what is right or good, or what one ought to do, based on preconceived ideas or whatever it fancies. On the other hand, it is difficult to say whether the isolated moral agent is fair or does something fairly in the absence of some external reference; i.e., "fair" is always relative.

If it is correct that fairness is social in nature, it certainly qualifies as an ethical concern in normative networks. But, is fairness a principle, a collection of principles, or a maxim or a class of maxims? The maxim "Be Fair" commands our being fair, what does that mean in the absence of additional instruction? Since Rawls introduced the doctrine of Justice as Fairness thirty years ago, we cannot avoid taking positions on that connection as well: is there a greater content in Justice than fairness alone?

There are different forms relevant to fairness. With Rawls, I take the basic form to be adjectival or adverbial - descriptive and modifying, not a  noun or verb. The reason for this priority is the interpersonal nature of fairness. Someone might be considered a fair person, meaning that person renders fair judgements; not that fair is personal quality. It could be that personal beliefs or habits, or some combination of skills, or a special situation in society, leads to rendering fair judgements. In such cases, that person has a disposition or situation of fairness which, presumably, others similarly endowed might also have. Such people in different situations might be considered unfair. For example, after Hitler rose to power, many of the same Judges considered fair under the Weimar Republic became unfair under the Nazi regime. In many cases, they applied the same rules to the cases before them during both regimes, but used different basic laws as starting points. In describing those Judges, two things are involved: the ethical nature of the law and the ethical nature of the procedures.

Procedural fairness is very similar to right in the sense of being correct. Procedural fairness, or due process as it is commonly called, assumes certain rules are followed; i.e., there are the rules and the application. It is much easier to determine whether procedural fairness applies in the application than in the formulation of the rules. Rules specify how we are to make judgements, so anyone familiar with the rules can examine what was done and determine whether the rules were followed. Procedural fairness is much like solving the problem 17 * 59, in which the steps and the conventional solution (1003) are known, assuming the truth of number theory. When a judge follows the rules, the judgement is said to be fair; i.e., due process was rendered. This is not a property of the judge, but of the judging. In this sense, being fair is also being right; i.e., correct.

But how do we know whether the rules are right, or whether the right rules were applied? The easier case is the application of irrelevant rules, which is the same as the misapplying the rules. If asked to multiply 17 * 59, but, instead, I divide or subtract them, I do not understand what multiply means. Judgements involving the wrong rules are not fair because they cannot be right. Whether the judge is immoral in making unfair judgements will depend on the circumstances of the error: perhaps the judge is insufficiently trained, read the wrong books or has some other quirk that leads to misunderstanding this case (but all the cases are OK). In such cases, the judge made an error (hopefully correctable) resulting in an unfair judgement, but we wouldn't yet label the judge unfair. But, if the judge persistently judged unfairly by misinterpreting the rules, or bringing in extraneous rules, as used to happen routinely when persons of color were tried in American Courts, the judge may be biased, so called unfair. These sorts of problems can be straightened out by putting the correct rule book before the judge, by retraining or replacing the judge.

What the foregoing does not resolve is the rightness of the rules. When the content of the rules is considered right (correct), they embody substantial fairness. Substantial fairness is constitutional, not procedural. Substantial fairness comes in two parts: the setting of the rules by which judgements are made and the premises of the system. Due process assumes the rules are correct because substantial fairness says so. Due process assumes the claims of rightness or goodness are correct because substantial fairness says so. This model of fairness generally follows commonly accepted ideas about the structure of mathematical systems. There are premises and rules of logic which, taken together in a certain way, allow deduction of true statements (theorems). Once the premises and rules are set, controversies disappear excepting those involving competent application (as discussed above). So, how do we determine what is fair in the first place?

Substantial fairness results from a set of assumptions about ethics and methodology. There are several traditional approaches to explaining fairness. An Enlightenment idea is that fairness is included in the Social Contract; i.e., it is what the parties agree. Plato, theologians and other authoritarians said it is what appropriate authorities say it is. Aristotle thought it is what educated people feel it is. In a way, Hume's intuitionism and subsequent English schools of thought follow Aristotle. Hume, Kant and others thought fairness is an aspect of a built-in moral faculty which acts through another built-in faculty, reason. Utilitarians think it can be calculated in some way. Natural law theorists generally believe it is something inherent in human nature, which is close to what the current crop of biologists claim in "biological naturalism." Although this list may not be accurate or exhaustive or fair, it illustrates that most philosophers start with the individual, not society, in treating ethical issues. My central thesis is that ethics is a production, an artifact, of society, so that is the appropriate starting point in determining what is fair.

I must claim that various societies have different notions of fairness because I believe that is the fact of the matter. One of the things that complicates diplomacy is just how different cultures are! Americans, for example, are incredibly Puritanical about sex compared to most other cultures. In China and much of Asia, bribes and payoffs are commonplace because they have been part of the economic and political structure for thousands of years. Mandarins depended on bribes for services rendered, because the government did not pay them well enough and generally looked the other way. Those taking bribes took the risk that, should they lose favor with higher powers, their corruption would be used to condemn them, which was a reason higher powers looked the other way when it suited them. That sort of system depends entirely on human relations, not some abstract assessment of value as in Western Capitalism. Before the 1911 Chinese Revolution, Mandarins were selected  by tests about traditional subjects that emphasized analysis, writing and interpretation. Western managers are selected for their technical abilities; i.e., by tests in mathematics, science and economics that demonstrate the ability to get the correct answer. When riding a commuter train the other day, I noticed the fellow next to me was reading Getting to Yes, a negotiator's training book. One of the sections was, 'Take the People Out of the Problem' (my paraphrase), which is a typically Western way of looking at management. The Mandarin's way is 'Satisfy the people who bring a problem.' Westerners typically feel the Mandarin system is entirely corrupt, but Easterners feel Western ways are inhumane. Who is right? I think neither or both.

Whatever the particulars of fairness in a culture, the acculturated (those participating in the culture) must feel sufficiently satisfied in its application for that form of fairness to continue. This is due to folk wisdom: people vote with their feet. When enough people are dissatisfied long enough, either injustice or the unjust disappear. Because those in authority can rule by fear for long periods, fairness can be smothered during that time. Modern experience is that the duration of repression largely coincides with the life of a tyrant- one or two generations. It is true that insidious forms of unfairness, such as apartheid, religious intolerance and other forms of bigotry, have lasted much longer than tyranny. That is probably because, in those cases, each sub-culture has its own, stable version of justice which is at odds with the other versions of justice. Participants in those sub-cultures are satisfied with what they have, and are willing to fight the others for survival or dominance. The difference between sub-cultures that last for centuries or longer, and tyrannies that only last a lifetime, is very likely one of scale. Tyrannies are rarely close to the people. They are created in unusual circumstances which forces many local entities to accept one rule. When the skills of a particular tyrant or the underlying circumstances change, that tyranny ends.

Suppose the Roman Empire is offered as a counter example of a tyranny that succeeded for much longer times. I will accept that objection, but only as an unlikely exception and with modification. The Romans often granted localities self-government, if only they would recognize Roman suzerainty when it counted. Roman law was acknowledged in international matters, but the local law often prevailed in much else. When the Romans believed they would never rule their conquest, they leveled it, as was the case for Carthage or the later Jewish diaspora. It is also worth noting that a cabal of Romans often overthrew the reigning Caesar, so assuming the Imperial throne was a dangerous undertaking. In fact, the Imperial system was unstable in many respects, and that was a factor leading to the Fall.

The British Empire is a much better counter-example, as the British ruled ruthlessly over the native peoples of regions they conquered  One result is the widespread use of English in places such as India and China, and the continued global dominance of English-speaking peoples. I think what the British Empire shows is that people will knuckle under if sufficient force is applied long enough. That is probably what happened in Gaul and some other territories of the Roman Empire as well. The Catholic Church ruthlessly wiped out the older, pagan worship of the Horned God in Europe, but also accepted many mystery and mother-worship cults into its midst.

These examples do not negate the point that people will vote with their feet when given the chance. Despite British rule, the Hindu and Muslim populations of India did not give up their aspirations for home rule and independence. In the end, the Romans failed to Romanize the warlike Celts, who became today's pugnacious Irish and Scotts. Catholic arrogance eventually inspired Martin Luther to rebel, and Henry VIII to declare England's independence, not just from the Roman Church, but from the Continent as well. In the end, two historic continental attempts to control England failed: first that of Julius Caesar and then that of the Normans. Cultures close to the people prevail, even after centuries of repression. Popular culture is often modified by the overburden, but it is still recognizable. Thus, American teenagers learn something of Beowulf and Chaucer, still readable despite the many centuries since the writing. The same is true in India, China and other places. Cultures only die when all their practitioners are exterminated. (The most efficient method of liquidating cultures is abandonment, which is happening all over the world as young people flee rural areas for the Big City. The excitement, glitter and vices of modernity are especially attractive to the young, who always declare the backwaters of their origin "boring.")

Modern, industrial, information-age civilization might succeed where all others have failed in homogenizing the world's cultures. Until everything is melted by the rays emanating from TV and computer screens, there are still remain local ways of doing things. Not all of us have the same standard of fairness. That, it seems to me, is an important fact because it reveals that there are many possible implementations of justice based on different concepts of fairness. In a future that has only one, mass culture it will be very difficult to appreciate this point, but noting historical developments should make it easier.

Besides the sufficient approval of its cultural participants, is there more that can be said about fairness? I take Sufficient Approval as a general (not universal!) principle which endorses a specific implementation of fairness. Besides approval, there is also a general principle of Moral Decidability: the premises and methods of the system should make it possible to decide cases. Many decisions might be based on  precedent, but Moral Decidability needs to include methods of creating new precedents. New situations are happening all the time, so some method of decided them is required. Ethical decisions are not just pulled out of thin air; they are moral judgements based on ethical principles. Therefore, fairness demands Reflection which fixes the case to principles. Moral Decidability may need even more than Reflection; sometimes, novel principles may have to be invented.

In the post-World War II period, civilized people everywhere were presented with some new ethical problems. What to do about the Holocaust? What about the use of atomic weapons? While most people in the West accept the legal remedies of the Holocaust adopted at the Nuremberg trials, debate still rages about HiroshimaNagasaki. For the first time that I know about, Nuremberg established the principle that following orders is not prima facie a valid excuse for otherwise illegal behavior. This principle is even more important than the punishment of Nazi leaders, as it can be argued that hanging those officials was merely another case of  oppression of the vanquished by the victor (which has happened a lot in History). It is true that, secondary to guilt for crimes against humanity, the Nazis were found guilty of concocting those crimes. This secondary principle has recently been more elevated by the trial of former Serbian President Milosevic, in which the fact that crimes against humanity were committed during his tenure in office is itself a major reason for conviction. There is a presumption that holding high office makes one responsible for what happens while one is in office. This presumption is an extension of the first principle about following orders: both the superior and inferior are guilty when they carry out illegal acts. The inferior is guilty of doing the thing, and the superior is guilty of conspiracy and as an accessory to the fact. Overall, what Nuremberg established was the principle that, from start to finish, everyone involved in crimes must be tried and justice rendered. Crimes Against Humanity was a new ethical criterion (a moral maxim that has gained Sufficient Approval), and the thoroughness of prosecution a new instance of Moral Decidability.

On the other hand, nothing of substance has yet come out of the United States' atomic bombings of Japan. Nuclear weapons have increased many thousand fold and proliferated to some of the most antagonistic nations on this planet. There is no prospect the United States will ever be punished for its deeds, if only because it was the victor. Oddly enough, the acts of the Japanese against the Chinese, Koreans and others before and during World War II have also gone largely untried and unpunished. The Nuremberg codes clearly apply to what the Japanese did, and a few high officials such as Gen. Tojo were hung. But, the Japanese government had the good luck to understand its new, subservient position in the world and became the staunch ally of the West against the rapidly expanding Communist East. I believe Gen. MacArthur, virulent anti-communist that he was, understood the strategic significance of Japan before he set foot on the Missouri to administer the Unconditional Surrender. (For example, it had already been decided the Emperor would be exempted from punishment, so Imperial Japan would remain, only temporarily humiliated.)

In general, we cannot define fairness. The foregoing examples are intended to show that fairness is only exemplified by its implementation in laws and systems of justice.

To make that claim is also to deny that there is any such thing as Justice, but to affirm that there are justices. It is commonly observed that what passes for justice in one place is not the same as justice in another place. Each society has its own practices of procedural and substantial justice, which parallel concepts of fairness. But, is justice fairness? I think not, as we can say with a difference of meaning, just and fair. Something might be fair in both the procedural and substantial senses, yet unjust, and vice versa. Stalin's Show Trials arising out of purges during the 1930s were just, according to Stalin's Soviet law, but I think they were fundamentally unfair. The defendants were guilty of Stalin's displeasure, so were treasonous. The trials were intended as warnings to those who might harbor ill will toward Stalin. The trials were unfair to the defendants since the outcome was predetermined: Stalin used those prosecuted for his ends, not any other purpose. This illustrates that our notion of fairness extends to everyone, even the accused, whereas as justice might not. Of course, the same and other examples can be turned around, for, from Stalin's point of view, was it fair that some of his most trusted colleagues conspired against him? Robin Hood violated English law, including laws against robbery that apply in more places than England, yet he has been a popular hero. In movies made of the Robin Hood story, we are made to feel that his conviction for crimes such as robbery is unfair, because his greater purpose - taking from the rich and giving to the poor - is just. Yet, according to the local standards, Robin Hood's trial was both just and fair, because it followed established law that had Sufficient Approval. Popular sympathy with criminals has recurred in American History; as in the case of the Jesse James gang, Bonnie and Clyde and Black Bart. It is generally considered just that those criminals were punished, and even fair in the narrow sense of following the law, but popular sympathy was evoked by the sense that something was wrong with the government or the society of their times. In Victorian America, for example, there was resentment against banks and bankers, and the wealthy generally, for their ostentatious style of life and unhelpful, even punitive. attitudes toward farmers and working people. This robbing banks and trains was seen as a form of retributive justice, using a "higher standard"  than the law of the land. But, was it fair to rob and kill? Of course not.

I think those and many more anomalies show that justice and fairness are two different things. They also show that people have different conceptions of both things which they apply differently in various situations. For example, there is the idea of "levels" of justice which is commonly implemented in governmental structures as a hierarchy of Courts. Curiously, in the West, the final level of justice is a Supreme Court in which a few, appointed people pronounce on cases. While their judgements are seen to have some basis in law, they are also enabled to make judgements which change the law. Thus, what is the law comes down to the opinion of a few, highly placed people. That procedure is generally considered just, but derided as unfair. American Conservatives, for example, believe judicial interpretation is making of law, thus unfair. On the other hand, it is not clear whether Affirmative Action is just, given Constitutional protections of equality, but it is widely considered fair, given the abuses to which minorities have been subjected.

I was tempted to dichotomize justice and fairness along social and individual lines, but that would not conform to our ordinary usages. In fact, moral agents - certainly myself - consider both justice and fairness, whether separately or interchangeably, when making judgements. There is, however, an asymmetry, as I think justice is implemented in social institutions whereas fairness remains a term or concept or feeling. That is, we describe society and its institutions and acts as fair or not, and most people have opinions about the fairness of this or that. We do have laws and Courts that are supposed to embody the social concept of fairness in some way, but that is far less concrete than the what we call justice. Justice is implemented as a system in every society, whether it is as tribal chief, Emperor or High Court. Most modern nations have very complex systems of justice. What this reflects is the element of authority: justice is delivered based on authority. This fact implies a lot, for one that justice is more closely related to right than good. (But, does that make fairness more related to good?) Since justice is more social and concrete, and fairness more individual and nebulous, there is a sense in which fairness is prior to justice. In the system of normative networks, individual views of fairness are integrated to become the social outlook, which is the basis of justice. That does not mean that fairness is logically prior to justice, as the same integrative process applies to views of justice. Perhaps the easiest way to resolve this tangle is to say that "justice" has a double meaning, one parallel to fairness as an ethical concept and another represented in social institutions.

Punishment

So far, what we have learned is that right, good, fair and just are all difficult terms which have no certain meaning. This is not an unusual conclusion for those writing after G.E. Moore (Principia Ethica), but I decline to become an intuitionist or posit the real existence of those things in the world. I remain steadfast in my view that they are social constructs, the result of social interactions (the normative network). We can determine a meaning for each of them using sociological and psychological methods. In other words, we have to ask people what they think or believe about those terms of ethics. In most cases, those asked will not be able to give a coherent ("rational") account, but they can tell us how they use the terms by example. Thus, 'they should have hung XXX,' or 'YY's trial was unfair.' From those examples, we can try to determine what it was about  those events and processes that was just, fair or otherwise. Similarly, we can write down and analyze what people say is good or right. The hopeful outcome of such studies is exposure of social norms: 'thus and so is fair,' 'that is not just.' A secondary benefit of such studies is the production of statistical measures that show just how widespread (extensive) or deeply held (intensive) are such norms. Those statistical measures allow us to rank and correlate social norms, thereby teasing philosophers to come up with an explication, an ethical theory that gives moral concerns meaning. This last endeavor is not a scientific enterprise, but relies on all the foregoing steps scientists have taken. Since the scientific results are already explanatory, or at least expository, the only reason for engaging in ethics itself is the human tendency to want a "global picture," placement of things in an order that relates oneself to one's fellow creatures and the world. In this last sense, ethics is not strictly necessary, except to those who choose to take it into account.

That, unfortunately, introduces punishment, which I have concluded is necessary in this ethical theory. The necessity of punishment arises because, agreeing with Hobbes and others, people won't do what they ought unless under threat. I believe the basic rule applying to most social relations is 'whatever you can get away with.' Without punishment, society would soon devolve into anarchy. I am therefore forced to explain the role of punishment in morality, which requires me to examine why people behave ethically at all, and what principle justifies punishment.

First of all, punishment is the harm done to individuals sanctioned by authority. It is the inverse of reward, the benefitting of individuals, which is also sanctioned by authority. Punishment is usually considered an aspect of the system of justice, so in explaining and justifying it we are explicating justice. Because of its inverse relation to reward, explaining and justifying reward also explicates justice, provided the two things, reward and punishment, are symmetrically correlated. (If, however, we find that reward and punishment are disconnected, we would have to revise this account.) To bring the two things together initially, punishment is what is done about bad behavior, whereas reward is what is done about good behavior, whenever such behavior is (socially) noticed. Justice is about what is noticed.

Second, in "civilized" societies, most people are never punished severely during their lives. They might be fined for infractions, such as speeding tickets, but less than 3% of the population end up in jail. In very orderly societies, criminality is rare, usually represented in less than 1% of the population. When as happens among minorities in the United States, a very large proportion of the adult population has served time, there is reason to question the system of justice. After all, why should over 25% of all black men be jailed at least once, unless there is something inherently wrong with either the black men or the society that imprisons them? (I am of the persuasion that American society is permeated with racist culture, not that black men are born outlaws.) It is also true that many of those living in war zones and regions undergoing rapid social transitions suffer punishment, including mutilation, rape, torture and death. It is not clear whether those harms are unjust, even if I think them grossly unfair, because in most cases there is no organized system of justice. But, for the immediate purposes of this section, I will focus on orderly societies which have judicial procedures, where the authorization of punishment is not arbitrary (unlike war zones).

Why do people do what they do? This question is implied by the notion that moral agents ought to do anything at all, that there is any moral obligation. My answer is that people do things for thousands or millions of reasons, not just a few reasons. Here, "reason" is the explanation offered for an act when asked, as in 'I couldn't resist eating ice cream because it is so hot today' or 'I went to the store to buy groceries.' If that person is pressed for a further explanation, another answer connecting the first answer to a secondary answer might be offered, as in 'I needed to cool off' or 'I was hungry.' Eventually, the chain of explanations gets to rock bottom, to something like "hungry" which everyone is assumed to know about. If the examiner asks about "hungry," the appropriate response has to be, 'You know, hungry. Don't you get hungry?'  If our inquirer happens to be a man-made computer, it is probably impossible to explain the matter at all, if it never has the experience of hunger. In explaining deeds, external acts are ultimately related to internal states, which only each moral agent can report.

In alleging the multiplicity of reasons people have for doing things, I also mean to say that there is no single common moral thread. There may be common moral reasons, but I do not believe they are reducible in principle to some coordinated set. The various ethical theories - for instance, Idealism, Intuitionism, Naturalism, Realism, Stoicism, Utilitarianism - all offer explanations of moral activities which are, at one time or another, correct. Someone might go to a carnival rather than do housework in order to seek pleasure. Zealots might assail carnival goers through their bull horns and with leaflets, urging them to join the True Cause and Save the World or Themselves. More practical beggars may plead for donations to help save the environment instead of going on the Ferris Wheel,  while wily politicians shake hands and plump for votes so they will be able to clean things up. I fail to see the error of the Utilitarians or the Realists as their philosophies apply to specific situations, but I deny that any of them explain moral behavior in its generality. At best, the various ethical theories are tools people use to make their decisions. More usually, those theories explain some of the decisions made, which may or may not result in behavior. The upshot of my view is that most people do not actually act morally most of the time; i.e., ethics is irrelevant most of the time, but not always.

Ethical concepts are implemented in society through social norms and various mechanisms which guide behavior into approved channels. Social norms are carried in culture, that which is taught and learned from birth. The mechanisms of guidance are several including culture and law, which are formally inculcated into individuals by parents and schools and enforced through the institutions of justice. Infants and children are willful, but their misbehavior decreases as they become adults. As teenagers, we are stressful and challenging, but almost everyone finds a place in society and goes on to lead calm, orderly life. The serious instruments of justice apply only to a small fraction of the population, those for whom the processes of socialization have failed. Were it not for the application of justice, the disorderly would threaten the stability of society. So, there are originally two reasons for justice: the self-defense of society and the determination of social arrangements. Of these, the second is prior to the first, because defending something depends on knowing what is to be defended.

There are several theories of punishment, such as exile, isolation, retribution and rehabilitation. All of these are based on the ethical idea that society has a right of self-preservation, which implies the right of self-defense. Those rights are in analogy to the same rights of individuals, which society is also thought to inherit. While members of society retain the rights of self-defense and self-preservation, they give up some measure of those rights to social institutions. Paradoxically, it is the concession of those rights that creates them.

Before rights, there is the will to live, fear of harm and all the other biological desires. H. Sapiens probably was a social creature from the beginning, if only because reproduction and propagation of the species required it. Each of us is defenseless for many years, which puts our mothers at risk as well. Without some form of social protection, which, by elimination, requires male participation, no one would survive. Just how vulnerable we are, even with social support, is suggested by the sparseness of the paleontological records of human existence. Our predecessors were never abundant until ancient times. They were nearly exterminated several times, but the survivors were incredibly fortunate: they, and we, benefitted from misfortune. We apparently owe our language and conceptual abilities, and I this work, to the last near extinction, about 250,000 years ago.

DeWaals and others have pointed out that mechanisms of social cohesion in chimpanzees and bonobos are parallel to human social arrangements. As social creatures from the start, social regulation is implicit in every aspect of our lives, including punishment. In other words, habitual behavior and social rituals predate official society, consciously formulated and implemented. Those habits and rituals are historically pre-moral; i.e., before any ethical conceptions. That fact may create a problem for this theory, as it may be objected that, if social norms are embedded in society, not in individuals, why aren't bonobos moral? The distinction I make is whether, at some point, voluntary choice was applied in deciding the social norms. Prior to recorded history, we have no idea how or whether ancient humans actually formulated their ethical concepts. We can speculate on what those prehistoric ancients might have done, based on our feelings that they must have been similar to ourselves. But, we do not know much about what the ancients decided in their daily lives, and we do not now know whether chimpanzees and bonobos decide anything in the sense required of moral agents. Until sometime after the invention of writing, there was no proof that human beings had those concerns.

What studies by primatologists and other ethologists show is that social animals develop social norms and institutions because they are social, not because they are intelligent or conscious. In other words, there is something about the association of creatures into societies that creates the norms. Grazing animals that herd follow certain behavioral patterns because they gather in herds, not because of which species they are. Similarly, most of those hunting the grazing animals use the same strategies, which is evident when watching "nature" films about the great Serengeti Plain. (Human hunters, while having far better tools, use the same strategies as the big cats that hunt primates.) Again, the norms, strategies and behavior are the result of social interactions, not something invented by individuals. Lions are taught to hunt by their mothers and aunts, while their prey instinctively follow the herd. Lion prides have their unique tricks, so hunting  techniques are adapted to local circumstances. But that sort of intelligence - it is intelligent behavior - is not yet indicative of moral judgement. At least, I don't know of instances in which lions or chimpanzees considered whether their activities are ethical, although some of DeWaal's examples of chimpanzee behavior certainly suggest something moral is going on.

The behaviors which are classical subjects of moral concerns were established thousands or millions of years ago. That fact does not undermine ethics, but only explains how the target behaviors evolved. Ethical questions - what ought we do? - apply to behavior, whether or not long established, provided that those activities can be modified by voluntary choice. If we do something involuntarily, as in knee jerk reactions, very little can be said about the morality of that act. Punishment is one of those long established facts of human society. According to DeWaals, it is also a fact of chimpanzee society, although less so in bonobo society. That there are differences among the social primates in the incidence and uses of punishment indicates that different social arrangements are possible. Punishment is neither necessary nor inevitable, which intensifies the need for justifying its human uses.

Punishment does not work when used indiscriminately, as happens in authoritarian societies. The widespread use of punishment, which harms members of society, eventually degrades social performance and leads to revolution. Spartacus may have failed in overthrowing Rome, but his story lived on. The Romans were repeatedly faced with rebellions which they put down ruthlessly, as happened in London, until they weren't able to do so. When the oppressed saw the weakness of their conquerors, they struck back. After several sacks of Rome, a city of half a million was reduced to a few thousand or less. The lesson I draw from history is that societies must limit themselves in punishing miscreants.