The issue of justice is obviously of paramount importance for the criminal justice system. According to common sense, as well as most philosophical perspectives on the matter, it should be concerned with providing individuals with their just deserts based on whether they support or violate the social contract. However, Rawls (1985) rightfully notes that the attempts to apply generalist moral theories to practical political matters are fraught with numerous difficulties. Considering this, it may be reasonable to assume that criminal justice, as a distinct field of policy, should have its own practice-oriented approach to defining and executing justice. Theories of justice developed by Rawls (1985) and Nozick (1973) are interesting examples to discuss from this perspective. The two philosophers hardly agree on anything except the value of liberties, but Rawls’s (1985) approach seems to be more applicable because it focuses attention on the social context of crime.
Rawls’s (1985) theory of distributive justice is a spin on traditional liberal utilitarian thought that concentrates on providing a framework for a fruitful coexistence and cooperation of citizens in a constitutional democracy. He explains the lack of such a framework by the competition of two philosophical theories: one focused on individual rights of property, freedom of conscience, etc., and another concerned with political liberties in public life (Rawls, 1985). The contrast between the two is that the first is focused on safeguarding individuals, while the second addresses the concerns of equal political participation for the common good. Rawls (1985) aims to solve the tension between these perspectives by providing two guiding principles of justice. The first principle is that “each person has an equal right to a fully adequate scheme of equal basic rights and liberties” (Rawls, 1985, p. 227). The second one poses that social and economic inequalities should be attached to positions accessible to everyone and that the changes to the distribution of public goods should predominantly benefit the most disadvantaged (Rawls, 1985). This concern with the distribution of holdings is what makes this theory of justice “distributive.”
Nozick’s (1973) theory of justice is written as a response to Rawls’s original 1971 work Theory of Justice – so much, in fact, that he structures most of his argument as the criticism of Rawls. His point of departure is that his opponent’s principles essentially contradict each other. After carefully analyzing Rawls’s argument, he deconstructs it to the most basic premise that lies at the core of the second principle. This premise, as Nozick (1973) formulates it, is that “holdings ought to be equal, unless there is a (weighty) moral reason why they ought to be unequal” (p. 117). However, as Nozick (1973) points out, there is no justification present for why holdings have to be equal. In anything, the distributive theory of justice presumes that people, who are born unequal in talents and abilities, do not deserve their natural assets. By depriving people of the entitlement to their natural capabilities, distributive justice essentially violates the liberty of the more endowed to use their capabilities to acquire holdings (Nozick, 1973). From this perspective, one may conclude that Rawls’s principles of liberty and difference are ultimately not compatible.
Given the arguments listed above, it is hardly surprising that the two philosophers are not likely to agree, but there is at least one area where their views coincide. Both Rawls (1985) and Nozick (1973) assign great value to liberty, even though their interpretations thereof end up being very different. According to Rawls (1985), the “fully adequate scheme of equal basic rights and liberties” is important enough to actually list it as the first principle among the two. Even Nozick (1973) admits that “ranking the principle of liberty as lexicographically prior” makes it more important, although he still does not view it as an efficient way of addressing potential criticisms (p. 121). As for Nozick (1973) himself, the philosopher also argues that liberty is of paramount importance and should be safeguarded against unjust limitations. For him, the example of such a limitation would be the “more extensive [than minimally required ] state” encroaching upon individual freedoms, including that to exercise one’s natural capabilities (Nozick, 1973). Thus, the two philosophers can, at the very least, agree on the value of freedom.
This agreement, though, would not be particularly fruitful because the authors entertain very different notions of freedom. Nozick (1973) follows the concept of negative freedom, which interprets liberty as being free from governmental intervention. Rawls (1985), on the other hand, thinks in terms of positive freedom. According to him, conditioning wealth with “fair equality of opportunity “ gives people not the freedom from external intervention but the freedom to participate in their community more fruitfully (Rawls, 1985, p. 227). This difference between negative and positive freedom ultimately defines the authors’ approach to property. For Nozick (1973), the principle of justice in human possessions is historical rather than distributive and “depends upon what actually has happened” during the acquisition (p. 48). In other words, the main concern is whether the property is rightfully acquired, and it is the act of acquisition that is just or unjust. Rawls (1985), however, focuses on the end-state distribution of property and makes distribution rather than acquisition his main concern. Thus, the different conceptions of liberty entertained by the two philosophers eventually lead to different ideas of justice as related to property.
Considering how Nozick’s (1973) interpretation of justice is almost entirely focused on acquiring property, its application to the field of criminal justice would be very straightforward. In fact, the author gives at least one example of doing exactly that. When discussing the possible limitations of Rawls’s theory, he notes that no notions of increased public benefit can “entitle the thief to his ill-gotten gains” (Nozick, 1973, p. 48). From this perspective, justice is purely procedural and solely focused on the act of acquiring property. If this act is unlawful, then it is right for the criminal justice system to apprehend the culprits, force them to reimburse the damage, and administer appropriate punishment. This crime-and-punishment scheme is very forthright and can be appealing due to its very simplicity. However, this retributivist perspective perceives crime as a consequence of purely individual decisions motivated solely by one’s free will (Kelly, 2012). As a result, an attempt to apply Nozick’s (1973) theory of justice would disregard the broader context of related social issues that can promote or decrease criminality.
Conversely, Rawls’s (1985) theory of distributive justice allows focusing on social determinants of crime and addressing them. As mentioned above, Rawls (1985) stresses that, insofar as social and economic equalities exist, they should promote the “greatest benefit of the least advantaged members of society” (p. 227). Thus, applying this perspective draws attention to poverty and limited opportunity as moderating factors that can lead to an increase in criminality (Kelly, 2012). While for Nozick (1973), the opportunity to choose between crime and law-abidance is unconditional and universal, Rawls (1985) draws attention to external factors that can influence the decision. Ultimately, his theory seeks to promote positive liberty as access to opportunities other than crime. Moreover, Rawls (1985) openly posits that each person’s s scheme of liberties should be “compatible with a similar scheme for all” (p. 227). This emphasis on equal treatment allows focusing on the social issue of police profiling, which often manifests in disproportional arrest and prosecution rates for the same crimes across different demographics (Kelly, 2012). In short, Rawls’s (1985) theory is better suited to criminal justice because it addresses its broader social context.
To summarize, Rawls and Nozick entertain vastly different notions of justice. The first philosopher argues that justice should encompass equal and compatible liberties with a fair distribution of resources improving the situation of the least fortunate. The second points out that, when taken to a logical conclusion, Rawls’s second principle of difference as justified through distribution contradicts the principle of liberty. Devotion to liberty is probably the only thing that the two authors can agree upon, but it is underscored by the fact that they adhere to different interpretations of freedom as positive or negative. Ultimately, Nozick’s narrowly procedural focus on the means of acquiring possession would make its application to the field of criminal justice very simple and very shallow. Conversely, Rawls’s emphasis on positive freedom would allow addressing broader social issues related to crime, which makes his theory a more appealing alternative.
References
Kelly, E. I. (2012). Desert and fairness in criminal justice. Philosophical Topics, 40(1), 63-77.
Nozick, R. (1973). Distributive justice. Philosophy & Public Affairs, 3(1). 45-126.
Rawls, J. (1985). Justice as fairness: Political not metaphysical. Philosophy & Public Affairs, 14(3) 223-251.