A Creativist Philosophy of Justice

This theory attempts to encompass the different types of justice that people pursue – social justice, economic justice, criminal justice, environmental justice and so on, even including justice on the sporting field and at home. Common to all is the establishment of harmony between people who are in conflict or competition.

Competition is often so benign, for example an eisteddfod or a backyard cricket match, that including it within the scope of this discussion may seem over the top, but interactions of any kind where fairness might be questioned are surely matters for justice. For while I believe that justice is much more than fairness, it is real or perceived unfairness that makes us talk about justice in the first place.

My approach is to draw upon Creativist thought which sees life and goodness in terms of ever-present and ongoing acts of creation. I will argue that justice is a creative and life-enhancing state of being which recognises and affirms some form of truth. This state of being is achieved through the application of one or more acts of goodwill, balancing the interests of parties at odds with each other. These parties may be not only those which are immediate or proximate to the matter, but more broadly the individual and society.

Where justice comes from

Justice is a hugely complex topic and we can approach it in different ways. One obvious approach is the question where it comes from. Does it come from on high somewhere or from the internal necessities of the Universe, or indeed from the gradual process of human development towards civilisation? The Wikipedia article on justice identifies three major possibilities: divine command, harmony and natural law.

Justice as divine command is essentially the idea that God or equivalent commands us to be good. By this command, justice is part of the overall panoply of divinely constituted goodness.

Justice as harmony is the view of Plato. According to the Wikipedia article:

Justice is a proper, harmonious relationship between the warring parts of the person or city. Hence, Plato's definition of justice is that justice is the having and doing of what is one's own. A just man is a man in just the right place, doing his best and giving the precise equivalent of what he has received.

A related view which arose later is that justice derives from some sort of social contract.

Advocates of the social contract agree that justice is derived from the mutual agreement of everyone concerned; or, in many versions, from what they would agree to under hypothetical conditions including equality and absence of bias.

This we might say is a humanist conception.

Justice as natural law is the idea that justice is part of the natural order of things, whether ordained by God or some other source, and it can therefore be understood universally by reason. The Wikipedia article says:

For advocates of the theory that justice is part of natural law (e.g., John Locke), it involves the system of consequences that naturally derives from any action or choice. In this, it is similar to the laws of physics: in the same way as the Third of Newton's laws of Motion requires that for every action there must be an equal and opposite reaction, justice requires according individuals or groups what they actually deserve, merit, or are entitled to. Justice, on this account, is a universal and absolute concept: laws, principles, religions, etc., are merely attempts to codify that concept, sometimes with results that entirely contradict the true nature of justice.

This is the view that appeals most to me, for justice is so fundamental that it extends beyond the human race, including the whole of the natural environment. It is part of the universal necessity for balancing. Indeed I would go further and say it is part of universal truth which is the essence of all natural law.

Aims of justice

If we have a view on where justice comes from, most likely we’ll also have a view on its purposes. Clearly it is always one of the faces of goodness, however this goodness may be defined. For some, maybe most, goodness is a matter of virtue. For others, however, it is a matter of personal satisfaction and happiness, which may mean not virtue but self-aggrandisement, acquisition of wealth at the expense of others, or even (more darkly) revenge. Thus, despite popular supposition, justice is not always equated to fairness.

Linked with the question of aims is the question “Justice for whom?” Who in any given situation should benefit? Should it be just the aggrieved, the oppressed, the hard done by, or should it be the perpetrator(s) of the alleged injustice, or indeed the community at large? Invariably justice proceedings affect not just the immediate parties but the whole of society. So we have to think of justice in light of the ethics of civilisation rather than just individual ethics.

In my view, injustice of any kind is like debris in a stream that causes flow resistance, blocking the smooth passage of water. Some debris can be tolerated, but sooner or later it becomes a problem and has to be removed. Flow, like life, has to go on unchecked, and making this happen is the aim of justice.

Some historical perspectives

Justice, like truth, has many faces; what is just to one person may be unjust to another. What then is the essence of justice? What should we expect of it?

Michael Sandel’s book Justice: What’s the Right Thing to Do¹ gives a useful overview, reviewing some of the main strands in Western thought from the ancient Greeks to the present day. The scope of his book is social and economic justice rather than criminal or other forms, but it has potentially broader relevance. Thus, Aristotle and others of his time believed justice was a matter of virtue, and that we could not decide what was just without first deciding how people should live. Once we have decided how people should live we have a standard against which we can determine the merits of a matter. The Utilitarians, in contrast, were more interested in outcome: happiness or wellbeing or the greatest good for the greatest number. A third group - modern political philosophers from Kant to Rawls – have asserted a different view again. They too are concerned about ends, Rawls for example saying that justice is fairness and should benefit the least advantaged members of society. However, they are also more mindful of the process of establishing justice. Above all, they say, whatever is decided in this process must respect human freedom and equality. Freedom for each person to make his or her own choices is essential. Equality too is essential, not just equality before the law but also a set of arrangements that are weighted to help the disadvantaged.

Another way of looking at these questions is to ask where we should put most emphasis in our quest for justice. Should we emphasise the front end, as it were, the supposed ideal state which, when deviated from, becomes injustice? Should we instead focus on the back end, the attempt to reach a solution that all or most parties can live with: the practical solution? Or should we emphasise the states of mind used to reach a solution, giving more weight to the way people are treated in the process – the dignity they are afforded by way of freedom and equality? The first approach has justice decided primarily on merit. The second approach has the decision made on the basis of what will make people happy, which may be fairness or alternatively a matter of negotiation, like plea bargaining. The third approach may lead to a similar outcome but in a way that is morally close to neutral, for it avoids any preconceived idea of the good, whether that be virtue or happiness. Sandel (p. 219) says of this view that it expresses “a heady conception of human freedom that casts us as the authors of the only moral obligations that constrain us.”

A variant on these ways of thinking is that justice has three core elements of equality, merit and fairness. We may all be recognised as equal, but inevitably there are instances of greater or lesser merit, and fairness is the balancing of the two. Thus a fair decision may be that people are to live as equals, or lose equality (i.e. be penalised), or get more than equality (i.e. be rewarded or compensated). Equality may also be converted to equity, whereby people get what they need rather than what is their strictly equal entitlement. The variability of outcomes is due partly to the different weightings which decision makers assign to equality and merit. Some say, for example, that a just procedure is one where everyone has an equal say in making the determination; others say it is one where the best qualified or most meritorious makes this decision.

At this point it is timely to remind ourselves that justice typically follows a certain pattern of proceedings. Whether in court or cabinet or any other place of decision-making, it begins with an ascertaining and weighing of evidence of some kind, then proceeds to an application of certain principles based on and laced with goodwill (or ill-will), and finally goes to some form of action. We should also remember that justice does not have to be a process of resolution by a third party. Frequently justice is achieved by the goodwill of the disputants or combatants themselves. Sportsmen, for example, simply accept that the better person or team will win, and an umpire is needed only when there is an extreme dispute.

A Creativist perspective

The discussion so far has been missing any reference to truth. It is at this point that I invoke Creativist thought, which holds that the central fact of life and its goodness is creation. My own personal brand of Creativism goes further, maintaining that life – creation - is the activation of truth through love or goodwill. But what is truth?

Truth is often thought to be adherence to reality, but it is also used by some, including myself, to mean, in the words of the Merriam-Webster Dictionary, “a transcendent fundamental or spiritual reality.” I consider it to be that quality which resides in all things, integrating all things and thereby making sense of all things. It integrates all things either by harmony through a cosmic balancing act, whereby things that are not in harmony are held together in a proportion that seems fundamentally “right.” Understood in this way, truth is the potential for new life and better life; it is the platform for the world’s ongoing process of creation and renewal.

The potential inherent in truth is realised by love or goodwill. This is the voluntary act of stepping into another’s life, of showing qualities like preparedness to listen, suspension of disbelief, empathy, sympathy, compassion, mercy and generosity. The creative outcomes that result can take many forms, but in summary they are the fulfilment of needs: whatever is needed for each person or thing to fulfil itself. They are thus more than the fulfilment of mere wishes. Creative outcomes consist of such things as sustenance, shelter, security, companionship, peace - and justice.

So we arrive at a redefinition of justice as truth realised. Specifically, it is the realisation or establishment of truth in situations of conflict or competition. Such situations may range from large scale redress of wrongs like the work of the Nuremberg Trials or South Africa’s Truth and Reconciliation Commission to social policy reforms, fines for traffic infringements and penalties on the sporting field. Even resolution of barneys in the nursery falls within the scope of this definition.

Truth is such a debated concept that whole books are written about it. At least a little more elaboration is required here, anchoring truth in the context of justice. Much is said about truth being relative, shifting according to the perspective of the beholder, but this is not to deny that truth can also be seen as, at some point, objective. Just as the quantum world co-exists with the Newtonian, neither completely negating the other, truth may be objective as well as subjective. As one of the forms of objective goodness, I would argue it has three dimensions: wholeness, harmony and balance. Wholeness, the first of these, is totality, not missing anything or leaving anything out; it is also integrity in the sense of being whole or undivided. Harmony is the amazing quality of fit between things; at its best this harmony becomes actual oneness or unity. Finally truth is characterised by balance, which is the proportionality of things: the balance between certainty and doubt, sufficiency and insufficiency, and so on.

All of this may seem to overlook the dynamic quality of truth, but not so, for it is clear that truth varies in both time and space. One person’s truth is not another’s; not only this, but what is true one day may be untrue the next. The variability is not total. Holocaust deniers exist, to be sure, but there still a solid core of conviction that it took place (and was one of the most monstrous injustices ever perpetrated by humankind). So we may say that for all practical purposes this recognition is a form of truth which in turn has led to justice. Similarly, for all practical purposes there is widespread agreement that certain behaviours are violations of truth and therefore unjust – murder, rape, robbery and so on. And on the other side of the coin, there is widespread agreement that behaviours like honesty, respect for human dignity, and recognition of the fundamental equality of humankind are all contributors to justice.

Sandel revisited

Sandel asked what should we expect from justice and found as preponderant themes the reaffirmation of virtue (Aristotle), maximisation of welfare (the Utilitarians), and, within certain limits, the freedom to make one’s own choices for oneself (Kant and Rawls). He concluded that none of these in itself is the sole answer to the question, but that all of them are reflected in the arrangements made by modern societies. A key consideration is that justice is determined not just by a few but by the community at large. This invites a communitarian view of justice, which Sandel appears to espouse.

Let’s now add to the discussion the Creativist approach which sees justice in terms of truth, goodwill and resultant action.

Firstly, there is the ascertainment of truth. In any justice proceeding, truth is ascertained through the identification of data (all data of relevance) followed by a process of rationalisation whereby those data pointing in the same direction are aligned while those in conflict are set in some sort of balance. Out of this rationalisation we establish the merits of the matter, as per Aristotle, or the extent to which different accounts of a crime accord with what actually happened. We thus have a more or less clear picture of some virtue to be rewarded, some need to be addressed, or some defect or deficiency to be corrected.

Secondly, there is the application (or withholding) of goodwill. Knowing the facts, as it were, we then apply certain principles in response. These principles turn on the degree of goodwill we have for people. With some people we might choose to be kind, with others we might choose to punish. We might also choose to reconcile. In some situations we might opt out of the goodwill/ill-will paradigm altogether, allowing the facts to guide us, as in “eye for an eye.” We might also adopt a general stance of goodwill but (and this applies more to social and economic justice) give priority to equality and freedom as determinants, as per Kant and Rawls. Or, yet another possibility, we might ignore traditional ideas of justice as fairness and pervert the process altogether, using conflict and competition purely for our own advantage.

Thirdly, there is the creative action whereby the matter is resolved one way or another. It is at this point where we have to consider what is feasible. Utilitarianism enters the picture here, with its aim of achieving the greatest good for the greatest number, a stance which is practical because it recognises the social character of justice, though this may conflict with respect for individual merit, for society is sometimes heedless of the individual. Feasibility also invokes issues like the counter-productiveness of incarceration and the costs of implementing justice. Ultimately, justice fails unless it somehow preserves, protects and enhances ongoing life.

I now wish to expand on these three propositions – that justice is truth, that it is an application of goodwill, and that it is an action or set of actions which are ultimately creative.

Justice as truth

I spoke earlier of three components of truth: wholeness, harmony and balance. Wholeness means that all things relevant to a matter are taken into account. Harmony and balance means that these things are then integrated and made sense of. Those things which are alike are brought into alignment in a meaningful way, while those which are unlike or fundamentally opposed are set in some sort of balance or proportion.

How does this work in practice? As I suggested earlier, whether in a court or a cabinet room or any other forum, one might imagine, the first step is always be the same, i.e. identifying all the facts, ideas or possibilities that have to be considered. This is no small thing because it requires at some point an act of exclusion that is to a degree false, for everything in this world is ultimately related in some way. Next comes the process of analysis, disentangling all the data to see there they lead and what weight they have, assuming as objective a stance as possible. It is here that we get a case being built, for example a body of evidence indicating that someone is guilty or that a certain policy decision might be advantageous. Lastly there is the issue of difference: how to reconcile conflicting data, how to give proper recognition to the interests of dissenters, and so on.

All three components of truth as identified here are crucial, but when we are talking about justice, probably the most significant is that of balance, for this is the area where we encounter the very raison d’être for justice, namely the existence of difference in this world. It is here that the ideas of equality and freedom enter the conversation – ideas which have preoccupied so many theorists like Kant, Mill and Rawls. Thus it is said that in a just society all parties should be treated equally in the consideration of a matter and where possible they should be given equal chances, including the freedom to make their own choices. A truthful view of the situation, however, must acknowledge that equality and freedom are not absolute or paramount, but must be weighed against merit.

There is another quality which we customarily associate with truth, namely moral rectitude. This however is the bridge to the next part of the discussion, where we talk about values. Truth as I have described it above is essentially value-free, but as we all know, no decision about justice is ever value-free. Thus moral rectitude and its companions honesty, respect, compassion etc. come into the next part of the discussion, under the general heading of goodwill.

Justice as goodwill

At the outset here it has to be said that goodwill also implies its opposite, which is ill-will. In other discussions I use the word “love” as the catch-all for all the characteristics of positive relationship between people and things. Here, however, when we are talking about justice, “goodwill” seems a more appropriate word.

Taking goodwill and ill-will together, we have the overarching and self-evident reality that justice is not just a matter of objective truth, but something that may be negotiated between parties. Plato recognises this when he says that justice was a form of harmony, and the same reality underlies the thinking of the Utilitarians when they see justice in terms of the greatest good for the greatest number, or the maximising of wellbeing throughout society. However, justice has very different meanings according to personal standpoints on how one should relate to one’s fellow human beings. As I have said before, justice is much more than fairness.

The highest standard that may be applied is unconditional love, whereby we treat others in absolutely the best possible way, regardless of the way they might treat us. Necessarily this is modified when we realise that favour to one can disadvantage and be unfair to others. It is here that we start thinking about what might be best for society as well as for the individual. There are then the rule-of-thumb standards which we call the Golden, Silver and Iron Rules, together with the Rule of Reciprocity:

• Golden Rule - treat others the way you would like them to treat you

• Silver Rule - don’t do to others what you would not like them to do to you

• Rule of Reciprocity - treat others the way they treat you

• Iron Rule - treat others the way you want to, regardless of what they want or what they do.

In practice, different standards are applied at different times and in different circumstances. For example, a person who is not personally disadvantaged by a proposed outcome is more likely to adopt a generous standard. But if in a murder trial that person or his family or friends or community have been or might be victimised, maybe a less generous standard might surface, like the Rule of Reciprocity, “eye for an eye.”

Goodwill is primarily an emotional quality but it also has a rational element. The application or withholding of goodwill has to pass through the same prism as the ascertainment of truth. Firstly, goodwill for whom – one or two people or many? Secondly, are there harmonies to be found – can we be equally good to all parties? Thirdly, if anyone is to receive less of our goodwill, who should that person be, to what degree and by what rule? Fourthly, given that goodwill has many forms, including giving people the benefit of doubt, how can we balance that goodwill with the absolute requirement for truth?

Intersecting with these standards are other ideas about what is most important in life. Is virtue the most important consideration, or happiness? How are these things defined? If virtue is the highest good, we can justify being cruel or harsh to be kind. If happiness is the highest good, we again have a justification for harsh treatment, though this time it is more about practicality than principle.

Justice as action

To reprise, justice has three essential elements: an ascertaining and weighing of data, an exercise of goodwill (or lack thereof), and subsequent action. The action from a judicial or justice-related proceeding may in fact be destructive, especially if ill-will has been involved, but true justice in my view results in an action or process that is creative, that is, enhancing to life and to the wellbeing of inhabitants of our planet.

The theory of Creativism, which is the operation of truth, love and creative action, is that truth and its potential are activated by an exercise of love – a voluntary coming together of people or things – and that this automatically generates a creative action. Key to this theory is the concept of will, which is embodied in the term “goodwill”, which is part of love. If we talk about will, inevitably we are going to talk also about strength of will, an absolute determination that one’s feeling for something will give rise to a positive action. None of this can be weak or half-hearted, like partial truth or benevolence circumscribed by conditions, for the outcome must be ongoing creation; and for the world to go on, it must have solid foundations.

Creative actions in justice take many forms. They include, for example, temporary deprivation of liberty, restitution, compensation, pay increases, welfare programmes, business mergers, umpiring decisions and so on. Of course we have to ask, “Creative for whom?” One way or another the answer has to be creative for all, even if sometimes this may take an apparently negative form, such as a sense of closure or a feeling of relief that one’s life can now, whatever decision has been reached, move on.

There is a harmonisation principle that says outcomes should be proportionate to their antecedents, for example punishment should be proportionate to the crime. Note that this is not saying punishment should fit the crime, for common sense dictates rather that punishment should fit the person. If a man has committed rape, the judge does not order that he be raped or subjected to equivalent physical punishment, but rather that something more meaningful and community-serving will be imposed, beginning with jail. In the field of economic and social justice, reward is determined by merit assessed by the market, based on factors like expertise and demand. The social safety net is in place only as a reserve option.

Conclusion

If justice is to serve ongoing life, it is also going to advance civilisation - the way we all live together, the way we relate to each other. But it will only do this if all the elements of justice are in play. Sandel identified some elements and I have identified more, but is it enough to say simply that these all have their place at one time or another? I think not.

Justice is achieved through the coinciding of three things, which overarch all other concepts, even those as fundamental as equality, freedom, merit, fairness and mercy:

• Rigorous pursuit of and adherence to truth. Participants in the process should behave honestly, all relevant data should be produced and given their proper weight, bias should be discounted, and so on. Truth also means balance, including a balancing of the interests of the few against the interests of the many.

• A steady and impartial stream of goodwill towards others. Baseline assumptions about people should be positive; they should be given equal opportunity; they should be allowed the dignity of making their own (informed) choices; and dispositions about their future should not be unduly harsh.

• A commitment to doing whatever promotes ongoing life, even though for some this may mean sacrifice. Everyone should have a chance to move forward. Outcomes should be appropriate in kind and proportionate to the cause of the trouble. The poor and the oppressed should be lifted up by whatever means all parties agree are most suitable. In the case of crime, justice should be restorative rather than retributive or crudely punitive.

All of these must be present. So if we want to assess whether in a particular matter justice has been well served, we must apply three tests. We must ask whether the outcome respects truth, is fair, and is sustainable.

To those who argue the absolute primacy of truth, meaning in effect that the undeserving must pay, and that therefore “softer” considerations like mercy should take a back seat I say this. You are arguing against the very nature of the Universe, for in all things truth and goodwill are indissolubly linked. Secondly, and as a consequence of this premise, a settlement in the name of truth that does not also invoke goodwill is bound to fail. Incarceration of offenders without rehabilitation leads only to more offending. Revenge killing leads only to more killing. Winner-take-all warfare leads only to further warfare. History abounds in lessons of this kind.

It is a sobering reality that an apparently well constituted system may still deliver an outcome that is unjust. A person may be convicted of murder and put to death largely because community feeling wants it, even though he still has the possibility of useful life ahead (this is the error of capital punishment). Justice is an ideal state but it is in human hands to administer, and humans are constantly making mistakes. The objective gets lost in the subjective, and the values currently prevailing in society usually prevail, even when they may be wrong. Not only this, but justice is also inevitably complex, with all sorts of factors which can lead to divergent opinions: the extent to which people are free agents, the extent to which they are equal or unequal, the voluntary choices they have made, the outcomes that will make them happy, what may be best for them in the long-term rather than the short-term, the overall wellbeing of the community, and so on.

My theory of justice may or may not be testable. This could not be known without reference to all sorts of scenarios where typically justice is invoked, from kindergarten tiffs to war crimes. But I am encouraged by recent testimony from two kindred spirits writing about criminal justice, Professor Martha C. Nussbaum² and Judge Bill Hastings.³ I venture to suggest that their life-affirming views will be borne out by history. And while their reflections are specific to just one kind of justice, they bespeak a humaneness mixed with good sense that would enhance other forms of justice as well, where the weak are routinely blamed. The plight of refugees, asylum-seekers and economic migrants is a case in point – a huge and pressing issue where the limits of justice routinely defy the human imagination, let alone the human will. But that is a topic for another day.

References

1. Michael J. Sandel. Justice: What’s the Right Thing to Do? New York: Farrar, Straus and Giroux 2009.

2. Martha C. Nussbaum, “Getting on with Your Life: Criminal Justice That Looks Forward.” ABC Religion and Ethics. 28 June 2018. http://www.abc.net.au/religion/articles/2018/06/27/4862730.htm.

3. Bill Hastings. “No Place for Retribution: The Role of Kindness in Criminal Justice.” ABC Religion and Ethics. 2 July 2018. http://www.abc.net.au/religion/articles/2018/07/02/4865270.htm.