David: Welcome to another episode of Hotel Bar Sessions podcast. I'm David Gunkel, and I'm joined, as usual, by my co-hosts, Rick Lee and Leigh Johnson. Today, we are talking about justice. But before we get into the weeds on the subject, we need to order up drinks and talk about whether we are ranting or raving.

So, Leigh, I'll go to you first. What are you drinking, and are you ranting or raving?

Leigh: Today, I think I'm just gonna have a hot toddy, and I am raving about animals getting MRI scans. So, I suppose I probably should have known this, but animals do get MRI scans. That's how we get all these pictures of the brains of animals, but I never really thought about what it would mean to put an alligator or a tiger or a snake or a gerbil into an MRI machine.

But there is a creator on TikTok making a whole series about this, and I really encourage you to go check it out. I mean, some of them are so adorable, and some of them are just freaky and weird, but animals and MRI screens—it’s a great way to pass a couple of hours. And Rick, what are you drinking, and are you ranting or raving?

Rick: I am drinking a Boulevardier today, and I am raving—and yes, I mean raving—but listen carefully: I am raving about Jeff Bezos's op-ed in The Washington Post explaining why he canceled the endorsement of Kamala Harris. I think Jeff Bezos has provided those of us who teach critical thinking with an amazing opportunity to refresh our material and look at some of the biggest mistakes that can be made in making an argument, and he makes almost all of the classic ones. There’s a non sequitur, a slight ad hominem in there, and he uses a bogus analogy.

So, my examples have been aging for a while. And so thank you, Jeff Bezos, for giving me an example of how not to make an argument. David, what about you?

David: So, I will be drinking the Staghorn Oktoberfest beer from New Glarus, because the only way you get that is by traveling to Wisconsin. So, I’ve been to Madison recently, and now I have a bunch of New Glarus beer in the car.

And I will be ranting about technological determinism. We often think the problem with technological determinism is that we look at technology as the cure or the solution to social problems. But I want to talk about the inverse. There's a lot of talk about political polarization right now in the U.S.

We're blaming AI and social media for this, but that's also a technological determinist argument. I think hatred of the other happens without technology. You know, it's not an AI problem here. It's a human fear problem that is much older than the technology.

Rick: Tale as old as time.

David: Yeah. All right, so we are going to talk about justice during today's episode, and Leigh, I'll let you set it up for us.

Leigh: Well, you know, in addition to the questions "What is good?" "What is true?" "What is beautiful?" I think "What is just?" is one of those fundamental questions that society is built on. We talk about concepts of justice all the time and assume we all understand it in the same way. But, of course, what justice means can vary greatly, depending on who you ask.

For activists, justice may mean economic fairness, where everyone has what they need to live with dignity. For police officers, attorneys, and judges, justice is about enforcing the law, punishing wrongdoing, and keeping order. Teachers and parents deal with justice every day, whether settling playground disputes or assigning grades that students and their professors feel reflect their efforts.

But underlying many of these uses of the term is a shared concern for fairness and/or equality. What's fair? What do we deserve? Is justice about treating everyone equally, or does it mean adjusting for circumstances so that everyone has a fair shot? Is it about rewards and consequences, where people get what they deserve? Or is it about ensuring everyone's basic needs are met?

Sometimes we talk about justice in terms of balancing the scales, hearkening back to Ancient Greek philosophy, which saw justice as harmony within a society. There, a just society is one where everyone plays their role, and the community runs smoothly as a result. In this framework, violating one's role, even if it feels restrictive, is considered unjust because it disrupts the social order.

But others see justice in more practical or utilitarian ways, where a just society is one that increases the general well-being of its citizens. On this view, justice is about the collective good and what will reduce suffering the most.

And then there are the political libertarians, who suggest that justice is all about freedom, and a just society is one that leaves people free to choose without too much interference from the state or others. So today, we're going to talk not only about justice but about theories of justice—of which there are many: distributive, retributive, restorative, procedural, social, environmental, intergenerational...trust me, there are a lot of theories, and we won't get to them all.

Oh, and there's also our pal Thrasymachus, who we will talk about. In the end, maybe justice isn't about fairness or freedom or harmony or needs at all. Maybe it's just about making sure everyone feels a little bit cheated—just enough to think, "Well, at least I got some of what I needed." Because if we all feel slightly shortchanged, maybe that's the fairest deal of all.

So, like I said in the intro, we're not going to be able to cover every theory of justice from the ancients up to the present, but we do want to hit some of the main ones in rough historical order. I want to start with classical theories of justice. I'm now only talking about Western theories of justice, so I’m talking about theories of justice that we get from the Ancient Greeks. And Rick, this is really your wheelhouse, so I thought I might pitch it to you first to tell us a little bit about how Plato and Aristotle understand justice.

Rick: I'll start with Plato, and the main text where he talks about justice is a text called The Republic. He really talks about justice in two ways. He wants to talk about justice in the individual. But he thinks that if he can expand that idea, he'd have a larger example to look at, which would make it easier to figure out. And so, he then looks at the state. As you indicated, Leigh, in your introduction, he comes upon an argument that there are various parts of a society, just like there are various parts of a body.

You know, there are the workers, the people who educate the children, the shopkeepers, and so on. And he notices—although he doesn't use this term—that they all have their own interests. They all want different things from society and from one another. So, he comes up with the notion of justice as balancing all of those interests so that everything works in harmony: the shopkeepers aren't selling so many goods that the workers can't keep up, the workers aren't overproducing, and the educators are preparing people for society. All of this would work in harmony.

For many things, Plato uses the example of a lyre—or we could maybe say a guitar—that all of this would be "in tune." Even though each string of the guitar plays a different note, when you play them all together, it sounds like a lovely harmony. And that's what justice is: the harmony of all these parts of society working together.

Leigh: Yeah, I often refer to this as the "stay in your lane" theory of justice.

Rick: Is that different from the Tim Walz "mind your own damn business" theory of justice?

Leigh: It might not be that different.

Rick: Oh yeah, well, we'll get to the libertarian theory, I think. So, having outlined that, I would say I have some problems with it, but I'm interested in hearing what either of you think—or both of you.

Leigh: This isn’t particularly a concern of mine, but it comes up a lot when I discuss this with students in class. One of the things that Plato’s model of the just society depends on is a belief that everyone does, in fact, have a work to do—ergon is the Greek word—that they're meant to do. And if they're doing their work, if they're doing their ergon, staying in their lane, then they’re going to live the best possible life that they could be living.

The problem ensues when we get out of our lane, when we try to do work that we’re not meant to do. On the whole, we generally agree that that’s probably good advice—that we shouldn’t pursue lives in which we’re not going to be able to make the best contributions to society. And, to be honest, we’re probably not going to be as happy as we could be if we were doing the thing that actually was our work.

But, of course, we live in a democratic, capitalist society. And to tell students that a just society requires minimal social mobility is something that they find deeply offensive. That is a concern a lot of people have: that this idea is overly deterministic. And, of course, they also have problems with what is often called the "noble lie," or the "myth of the metals" in Plato's story, which is meant to sort of keep everyone in their lane.

But I do think, on the whole, the main point of Plato’s argument about the just city—that we ought to want a society in which wisdom, power, and virtue are aligned—is something that most people agree with. We want the wisest and the most virtuous to also have the most power. But, you know, getting from here to there is a little bit more complicated than most people want to deal with.

David: There’s another complication in The Republic in that, in order to achieve this balance, in Book 10, Plato has to banish all the imitative artists because they are the ones who pollute the mind with representations that are not real and are out of touch with the true nature of what the Republic is dedicated to. This polity that is described in The Republic, although achieving harmony, is only able to do so through exclusions—specifically, by excluding disturbances introduced by artists, which Plato—or rather, Socrates—sees as tipping the scale in a direction that is not harmonious to the proper functioning of the city.

We should also recall that Plato is not necessarily Socrates. Socrates is the one who proposes these things in The Republic, and there's this division between Plato, the writer, and Socrates, the voice that speaks in the dialogues. There is a way in which Plato plays with notions of Socratic irony in The Republic that requires a more nuanced reading than simply saying, "Plato said it's all about harmony." There's a disharmony between the writer and the speaker.

Rick: And, to be clear, when David says "imitative arts," for Plato, that basically means all arts.

David: Yep.

Rick: This term "imitation" refers to, as David explained, objects that are not real—objects that are not here in front of me, but a representation or presentation of them. So, when one says, "banish all the imitative arts," that means poets, painters, sculptors, musicians, and all the rest of you ugly lot are enemies of the people, and you’re banished.

David: Yeah, we would have a perfectly functioning republic if we got rid of social media, movies, and television.

Leigh: This, despite the fact that he explains this entire theory of justice by way of an analogy.

Rick: Right, by way of imitation.

Leigh: Through poetry, basically.

David: Yep.

Rick: Yeah, well, that's the Socratic irony David was referring to.

I think another problem with this theory that’s put forward—and Leigh, you started broaching it in raising your concern—is that, of course, we’re not all going to stay in our lane. So the question is, how do we ensure, or who’s going to ensure, that we stay in our lanes? Socrates here is not naïve in thinking, “Well, we’re all just going to do it once it’s explained to us that justice is harmony.” So we need rulers. We need someone to oversee all of this and ensure it’s functioning. Yada, yada, yada… slightly complicated argument. Who should be the rulers? It turns out philosophers should be the rulers, or the rulers should become philosophers—either way.

Leigh: Still remaining in the Ancient Greek period, I think the first time that we get a theory of justice that has carried forward to today is in Aristotle. Aristotle is really where we get our first, what we now call distributive theory of justice. And distributive justice is really going to focus on the fair allocation of resources.

Now, what a fair allocation is and how those resources are allocated is going to change many times in many different variations on this theory over the next 2,000 years, but it’s usually based on something like merit—who deserves something or not. And corrective justice, which is kind of tied to distributive justice, is going to address the rectification of wrongs through a proportional compensation or punishment.

Rick: Whenever you talk about justice, punishment is often not far behind.

David: Correct.

Rick: Because the question is always: who's going to enforce it? But can I just point out something I find interesting in Aristotle—and I learned this from Thomas Aquinas, whose philosophy normally disturbs me—but he points out, and I think he’s correct in this, that Aristotle's notion of distributive justice means that promoting the common good, and therefore the well-being of all, is the primary virtue without which there can be no other virtues. And I think this is a really important argument. It places questions of justice—and I like your point, Leigh, about the relation between power, virtue, and wisdom—and I think for Aristotle, it’s promoting the common good in this distributive kind of way that provides the foundation for all the other virtues.

I might exercise honesty, generosity, piety, or whatever virtues or excellences Aristotle would endorse, but whatever other problems one finds with Aristotle’s theory of justice, that’s something I’d like to hold on to.

Leigh: Well, before we leave the ancient world, there’s one quick thing I want us to take a look at, and I’m not really sure this is an entirely fair—or an entirely just—attribution, but one other theory of justice that we get from the ancient world, I'll say, is retributive justice. And I do think that a lot of people trace this back to the early Abrahamic tradition. So, retributive justice is a theory of justice primarily concerned with punishment—the appropriate response to wrongdoing. The central questions of retributive theories of justice, as opposed to distributive theories, are going to be: What constitutes a fair punishment? Should a punishment be proportional to the offense, or something else?

David: This is your classic “eye for an eye” statement that appears in the literature of that time, right?

Leigh: Lex talionis, yes.

David: Yes.

Rick: When you think about distributive and retributive justice, you see this root “tribute” there in the center, which really means “giving.” And so distributive justice is a giving out, and retributive would mean a giving back. So, essentially, it says, “You did something wrong; we’re going to give it back to you.”

David: Right.

Rick: You pluck out someone’s eye; we’re giving it back to you. We’re plucking your eye out. And although “an eye for an eye” sounds like a kind of balance, the idea behind retributive justice isn’t really about balance, but rather, as you put it, Leigh, punishing for the sake of punishing. The thought might be that it contributes to a cosmic kind of balancing or something like that.

Leigh: I don’t know that I agree with that. I do think that retributive justice is about balance. I mean, that’s why we talk about fair punishments or proportional punishments, or punishments as compensation for a wrong.

David: It might not be about balance, but rather about symmetry and asymmetry. I think Levinas points this out as he interprets this Abrahamic concept of “an eye for an eye.” He talks not about a symmetrical relationship but an asymmetrical one, which I think is a little different than balance.

Leigh: I think another important thing to point out about retributive theories of justice is that we see explicitly introduced an asymmetry between wrongs that have to do with possessions—like “You took my chicken” or “You took my eye”—and wrongs that have to do with actions and personal relationships, like “You slept with my wife” or “You lied to me.”

Rick: Right? Yeah. I mean, the punishment for sleeping with someone’s wife isn’t sleeping with their wife.

Leigh: It’s two chickens.

Rick: But what about the common-sense notion of justice? Or maybe it’s not common sense, but it’s one you often hear. And this is also voiced in the ancient world, namely, that justice is whatever the stronger impose.

Leigh: Yeah.

Rick: Like, what do you mean, justice? If you're able to do it, you do it. The idea is that might makes right. That’s one way to put that form of justice, and one of the characters in The Republic, Thrasymachus, holds this position. Justice, he argues, is the law of the stronger. The only reason his position on justice loses out in The Republic is because he doesn’t punch Socrates in the face. He actually argues with Socrates, and Socrates is always going to win that battle. But if might makes right, Thrasymachus should have just knocked him out.

Leigh: And this is a naturalistic argument, right? He’s not saying, “This is what justice ought to be.” He’s saying, “This is what justice is.” It’s just the case that, in general, when we talk about things being just or unjust, we mostly align that with what is legal and illegal. So, whatever is just is going to be whatever the lawmakers say is just, and lawmakers are going to make laws that benefit themselves. And so, justice is going to be whatever benefits the lawmakers.

Rick: Right.

Leigh: But we do need to move ahead in history here, and I'm going to skip centuries and centuries and bring us straight into the mostly modern period. I’d like to talk a little bit about variations of distributive justice and, in particular, arguments that emerged in the 20th century, most notably between John Rawls and Robert Nozick.

So, Rawls—however maligned he may be—is a massively important theoretician of justice. He wrote a very famous book called A Theory of Justice and then a shorter version of that book called Justice as Fairness. Basically, Rawls argues that justice is fairness, and he bases this on a hypothetical social contract, something he actually borrows from the early modern period. In this hypothetical social contract, people are unaware of their own status, existing behind a "veil of ignorance," right? So, not knowing what position they might hold in this new society that they’re going to create together, they’re charged with designing a just society.

Rawls essentially presents an argument that, in such a situation—people existing behind a veil of ignorance, trying to create a just society—would create a society where inequalities are only permissible if they benefit the least advantaged in that society. It’s easy to see why one might presume this to be true.

Let’s say we’re going to be playing a game, and we know that some people in this game are going to have one arm tied behind their back. And before the game starts, we’re creating the rules for this game, but we don’t know if we’re going to be one of the players with one arm tied behind our back or not. We’re going to want to create rules that benefit the people who are already disadvantaged in the game.

Rick: Right. From behind the veil of ignorance—and for some reason, I hate that phrase, but okay—notice the assumption here is that there’s going to be inequality in society. So, the question is not how to eliminate inequality, but rather how to balance that inequality through some kind of fairness.

In other words, from behind the veil of ignorance, I’d think of a society in which no one is disadvantaged—unless you mean a natural disadvantage—but I’d want to imagine a society in which there’s no disadvantage for anyone at all. You know, no racism, no sexism, no class disadvantage, and so on.

Leigh: I hear what you’re saying, but we have to assume there are going to be inequalities because we’re not all cookie-cutter versions of ourselves. I know that’s what you’re referring to when you mention natural inequalities, but we’re not going to be able to create any system in which everyone is equally advantaged, because we’re not all exactly the same.

I think my problem with decisions that people make behind the veil of ignorance is that we don’t fully understand the impact of future inequalities without personal experience. For example, without having been a woman, I don’t think I can fully understand the impact of a sexist society. Without being differently abled, I don’t think I can fully understand the impact of a society designed for able-bodied people. You can replace this with any other discriminatory practice.

Rick: Yeah.

David: So, I have two complications or difficulties with this approach. One is that, in one sense, this isn’t much more than a remix of the Platonic “stay in your lane” idea. We just don’t know what lane we’re in. So, we’re making the rules not knowing our lane, but we’re still establishing a situation where people are going to occupy lanes. Operating from behind the veil of ignorance is just an epistemological modification of the Platonic sense of justice that we already talked about.

But I think another problem here is that this leverages a very modern way of thinking about these problems by invoking a kind of mythological past that doesn’t exist, right? Social contract theory, the “man of nature” who exists without other people that Rousseau talks about—in a sense, the veil of ignorance as a theoretical construct is maybe a nice thought experiment, but it’s not actually the way we come into the world. We’re always operating from within the world, not from behind a veil of ignorance.

Rick: Well, so I’m no lover of social contract theory, but just to defend it for a moment, I think that most social contract theorists—perhaps with the exception of Rousseau—are not positing an imagined historical condition, but rather asking the question: under what conditions would this form of justice be considered legitimate?

They say, “Well, we have to imagine a situation without these forms, and we have to imagine a situation in which we’re constructing these forms.” So, social contract theory suggests that if all rational actors would agree to a particular set of terms, then those forms are legitimate. I think there are certainly problems with that, and I think you’re pointing to them in a way that Leigh was already pointing to as well, namely that there is no pure abstraction. Justice might require that we look at the actual, embodied, concrete, and specific situations in which people live their lives, and that’s the only way we can attend to justice. So we may need a different notion of justice than “justice as fairness” that is determined by what would be agreed to from behind the veil of ignorance by all rational agents—which is another part of the problem, I think.

David: Correct. This whole notion of the “rational agent” is an issue not only in social contract theory, but also in economic theory, where we assume everyone is a rational actor. But there’s more to it than that, obviously.

Leigh: I completely agree, and we haven’t really explained what social contract theory is, but social contract theory mostly comes out of the Enlightenment, and it’s this basic idea that all of us who participate in a society have more or less agreed to an unwritten contract with one another—the social contract. And I think, exactly as you guys are pointing out, one of the ideas embedded in understanding how societies organize themselves and judge the justice or injustice of their structures is that it’s based on a contract. Contractual thinking is tied inseparably to the idea of self-interested, individualistic, free agents dealing with one another on terms of fair distribution.

Rick: Right.

David: We could look at the social contract as the terms of service of “Enlightenment Inc.”

Leigh: Yeah. And you all clicked on it whether you knew it or not.

Rick: Well, you know, you could think about a smaller version of this. For instance, I’m not normally worried that people driving in the opposite direction are going to veer into my lane and crash into me. You could think of that as a kind of social contract—we’ve all implicitly agreed to this.

Leigh: And since you brought up driving, currently, there are people who call themselves “sovereign citizens” who, for example, when they’re pulled over by a traffic cop, will say that they’re not driving, that they’re not actually citizens, and basically, their entire understanding of their participation in society is that they didn’t sign the social contract, so none of the laws that apply to them actually apply.

When you see these encounters between traffic police and so-called sovereign citizens, it’s really hilariously absurd in many ways, but you can see, in the absurdity of it, just how absurd it is to say, “I am participating in a society, but I didn’t sign any actual contract.” And so, they think they can sort of pick and choose the rights and responsibilities they have.

Rick: Yeah. At which point, the cop should just shoot them in the foot or something because, well, you didn’t sign on to the social contract, so might makes right.

Leigh: All bets are off. Okay, one more thing before we move out of the modern period is what many people often contrast with Rawls, which is Nozick’s libertarian view.

So, Nozick basically puts forward a theory that defines justice as fundamentally respecting individual rights and freedoms from interference. He emphasizes property rights and voluntary exchanges, and he criticizes any form of redistribution as a violation of personal autonomy and individual rights.

Rick: Uh, can we just say he’s wrong and move on?

David: Yeah, exactly.

Leigh: Well, I mean, I don’t think that’s our model here.

David: No, but in a way, this opens the door to more “might makes right” behaviors. I mean, the whole notion of property rights is a very Western European concept. When Europeans encountered non-Europeans, they enforced their property rights, and that’s what happened with the incursions into the Americas. This meant that the Europeans, who had more power, were able to impose their notions of property rights and ideas of justice on the American people.

Leigh: Not disagreeing with you, but just to make sure we give Nozick a fair hearing here, he uses a very famous example of Wilt Chamberlain. So, if you don’t know who Wilt Chamberlain is—I mean, God, how do you not know who Wilt Chamberlain is?—but if you don’t, look it up. He’s one of the greatest basketball players of all time.

Nozick says, imagine Wilt Chamberlain is on a team, and he contracts with that team to get 25 extra cents for every ticket sold to the games. Obviously, the team owners agree to this because having Wilt Chamberlain on the team means they’ll sell more tickets. Nozick is going to argue that every person who buys a ticket to that game is also making a free contractual agreement; they’re saying, “I’ll pay this ticket price to see this game with Wilt Chamberlain in it.”

Over time, that’s going to mean that Wilt Chamberlain gets richer than everyone else on his team. You might say at the end that this isn’t fair—Wilt Chamberlain is just one player on a team. He’s no more important than the rest of the team, he couldn’t play the games by himself, he needs the assistance of all these other players—they should get paid just as much. But Nozick would say, okay, go back and show me where, in this process, something unfair was done. You want to say at the end that it’s unfair, but you can’t go back and find an instance of unfairness. So, to take all this extra money from Wilt Chamberlain and redistribute it to others—that seems unfair.

Again, I’m not agreeing with this; I’m just explaining Nozick’s argument.

Rick: I’ve been teaching Kant’s Metaphysics of Morals in my intro class these past few weeks. This is a book where Kant talks about rights and tries to ground rights in the moral law and the categorical imperative. When he discusses the right of the state, he has a really interesting argument about how the state must act.

The state, Kant argues, has to redistribute wealth—he’s only talking about wealth here—in the form of taxes. They have to take money away from the wealthy and distribute it to the poor because that’s the only way the state can ensure everyone has the possibility of expressing their own freedom.

By the way, this notion of expressing one’s freedom is also how he grounds property rights, but I’ll leave that aside. I find that argument compelling: yes, as you said, Leigh, all those other teammates—and, by the way, the stadium, the beer vendors, and the television networks—they all make Wilt Chamberlain possible.

Therefore, there is a sense in which him receiving a disproportionate reward for something he was just one part of violates a notion of fairness. But I think Kant’s more fundamental argument is that this notion of justice will inevitably lead to injustice—that is, the prevention of others from expressing their freedom.

Leigh: Yeah, I agree. And before we close out this introductory segment, I also want to note that we have been almost exclusively—well, entirely exclusively—talking about Western theories of justice. There are, of course, non-Western theories of justice. I could point to Confucianism, which has an idea of justice as a kind of relational harmony that especially focuses on familial and societal obligations and fulfilling one’s role in maintaining social harmony.

There’s also the African philosophy of Ubuntu, which sees justice as a communal responsibility. In Ubuntu, we see others as part of who we are. The phrase that’s often quoted is, “I am because we are,” meaning that identity is tied to others, and justice is achieved through mutual care and community support. I just want to point out that both of these—and that’s just two examples—are much closer to Plato than anything that comes between Plato and us.

David: Well, it’s because a lot of the modern notions of justice are really rooted in Cartesian individualism, which is very central to modern European thinking.

Rick: I do need to point out that the distribution of Linux that I use—my operating system—is called Ubuntu, and it’s called Ubuntu for the reasons you were pointing out, Leigh. As an open-source project, each individual works for the good of the community. It’s a community-driven project, and people are writing software that belongs to the community, and so on.

The other thing I wanted to point out is that if Plato’s theory is “stay in your lane,” then Confucianism adds to that: “and don’t make waves.”

Leigh: Hmm. Yeah.

All right. So again, with the caveat that we have absolutely not covered every possible theory of justice, I want to shift our focus to some more contemporary concepts and debates within discussions of justice. So, let’s start with the most obvious: justice versus equality. Does justice mean treating everyone equally, or does it involve addressing, for example, historical and structural wrongs? Some people argue that it requires an equality of treatment, while others believe that justice necessitates compensating for past harms. Where are you guys on this?

Rick: Is there a way I could insist that there’s not as great a distinction between these two? In the sense that perhaps, in order to treat someone equally, I first have to acknowledge the context in which they have been made unequal to me. So, there are inequalities, and taking those into account would be required in order for me to treat them equally. And that might entail working to correct or right past wrongs in order to treat everyone equally. In that sense, I would say they’re not actually that different; there’s a way of thinking about it that brings them closer together.

Leigh: I think in general, I agree with you, but let’s get into the nitty-gritty here. So, if we’re talking about issues like affirmative action or reparations, I agree with you that in order to treat everyone equally, we’re going to have to first address historical and structural inequalities, right?

But to the actual person where those corrections are made—who’s at the locus of those corrections—it’s going to appear unfair. On the outside, we might say, “Yeah, this sucks for you; this isn’t fair for you,” but for the greater good, it is fair or it promotes fairness. So, in a sense, it gets back to the question of the locus of justice. Is the locus of justice the individual, or is it the community that is served by these various efforts? It depends on the perspective one takes regarding who is being served and who is the recipient of justice.

Rick: No, I completely agree. I think that’s the exact question. What I’m saying is that it’s very easy from behind the veil of ignorance, right, to say this is what should be done. But okay, let me just be straightforward here. You two are white guys—

David: What?

Leigh: —who are tenured, full professors. If we said, “You know what? Tomorrow, in every single university, we’re going to take away the tenure and rank of every white male professor and redistribute it to women professors, queer professors, and professors of color.” And that’s it. It’s going to be an unequal redistribution right now, but ultimately it will work out so that we have a more just system. I know right now you guys are going to look at me and say, “Yep, I’d be on board with that,” but you wouldn’t be on board with that.

David: You’d hear from my union.

Rick: Well, I’m not in a union. But for me, the question is larger—not quite the same, but maybe it’ll come down—

Leigh: Of course, you’d say the question is larger because you’re the one having things taken from you.

Rick: No, but one of my favorite lines from The Magnificent Seven is, “Please don’t understand me so quickly.” So, um, this might come down to whether the locus of justice is the individual or the common good, but it seems to me that if you take away my tenured full professor position precisely because of structural inequalities, I am someone who is better positioned to get a job doing something else somewhere else, in some way, shape, or form.

I think taking that into account might actually serve a form of justice. Think about it like this: I can’t play basketball as well as Wilt Chamberlain. Does that mean that’s unjust? No. But I have abilities that allow me to do a whole wide variety of things, so isn’t justice served by letting someone else who has been excluded from my position have my position, because I can find a different one? I’m not saying I can find it tomorrow, but I think we might agree that, given society as it stands in the U.S. right now, a white man is in a fairly good position to find another direction of employment.

Leigh: I mean, I think that’s true right now, but obviously after this adjustment, it’s not going to be the same climate. Now, you’re going to have a much harder time finding jobs, because all the CEOs are going to be women, all of the university provosts are going to be women and people of color and queer people and disabled people. You’re now going to be in the position that you weren’t in before.

You know, I get it, and I appreciate the good-meaning liberality of both of you, but I don’t think you wouldn’t fight against exactly this kind of program.

Rick: But isn’t that exactly why we talk about justice, right? Because if something is just, then how it makes me feel should be irrelevant. To look at it from the other side: if I say, “Well, you know, it’s too difficult for me to find a job; I’m being cut out from all these other positions,” couldn’t someone who has been excluded from these positions say, “Yeah, welcome to my world”?

If we’re thinking about justice as fairness, isn’t that a fair distribution? Like, we all think it sucks a little bit.

Leigh: I’d also just want to note—and this might be overly idealistic of me—but I do actually believe in the fundamental refrain of Marx that the liberation of the workers means the liberation of everyone. We ought not assume that when people who have been disadvantaged find themselves in positions of advantage, they’ll simply reproduce the same systems of advantage.

I think what we might find—or what I hope we find, what I think we’ll find—is more just systems. So, I don’t think you will find yourself in a position as disadvantaged as the people who are currently disadvantaged by the system find themselves.

David: I do want to point out that there’s a bit of an underlying utilitarian argument going on in all of this because we’re trying to figure out how someone can see the benefits of any sort of intervention like this in a way that would make sense to them.

To give you an example, when my kid was in Chicago public schools, because he was from an affluent neighborhood and he was a white kid, he didn’t have as many opportunities to get into special programs in the Chicago public school system. Other parents in the neighborhood would sometimes complain, you know, “How come my kid isn’t having this opportunity, while kids on the West Side have all these opportunities?” But as soon as they started to see how this was changing the educational environment of their children, they began to recognize that there was something to gain socially and communally from these kinds of activities.

I think there’s a way in which all of this really involves a kind of cost-benefit analysis that is very utilitarian. And maybe, as Rick was saying, it doesn’t come down to a utilitarian cost-benefit analysis. Maybe justice can’t work that way. If we do try to make it work that way, people who are on the losing end of this are always going to see it as a loss of something that they were supposed to have, or could have.

Leigh: I mean, I think we can still retain the cost-benefit analysis—the utilitarian thinking in terms of general social welfare—without thinking about it in terms of my individual welfare or my individual advantage. I think one of the things this argument is inevitably leading to is the conclusion that justice and fairness are separate, and justice and equality are separate, and to create a just society, it’s not always going to be fair. Sometimes it’s not always going to be equal. In fact, it’s rarely going to be equal.

David: It comes back to the question of who is the subject of this. Is it the individual who is the subject of the cost-benefit analysis? Or is it the wider community? Or is it both? And how do you negotiate those differences?

Leigh: Yeah, that’s what I meant by a utilitarian thinking that is focused on the general welfare and not individual welfare.

David: Part of the problem is that it’s often difficult to get people who are thinking very individually about the cost-benefits of these kinds of interventions to see the more general impact and to think more broadly outside their own benefit or their own losses in these kinds of activities.

Rick: I don’t want to so quickly separate or pit the common good against the individual good. When I talk about justice for the common good, I mean creating a situation where each individual can live well. That’s only possible on the basis of justice in common. Therefore, I don’t want to say that justice for all is pitted against justice for me. Rather, I want to put it the other way: there can be no justice for any individual unless there is justice in common. And I think what you’re leading us toward is a recognition of that reality.

Leigh: If we’re currently existing in an unjust system, any correction to that unjust system is going to require actions that, within that system, appear unjust. And that correction is, as you say, hopefully going to create a system in which we don’t have to make these clear distinctions between the common good and the individual good, where every common good is also an individual good.

But in the interim, there are going to be individuals who suffer because we’re trying to achieve a system in which no individuals suffer for the common good. And I think that leads us to another debate within theories of justice, which is the debate between retributive and restorative justice.

Retributive justice is always about balancing the scales. Sometimes it’s just about getting your “pound of flesh,” right? There is that form of retribution. But insofar as retribution or punishment is about trying to restore—as you say—symmetry, order, balance, harmony, etc., it’s going to involve actions that feel unjust to the individual.

Now, restorative justice—which I don’t think we’ve talked about yet, though I actually wrote my dissertation on it—comes out of these truth commissions from the early nineties. The idea is that when an injustice has happened, the response is not to punish the wrongdoer; the response is to restore what was broken by the injustice.

Famously, the South African Truth and Reconciliation Commission said, “Alright, we’re trying to move from a manifestly unjust system—apartheid—to a more just system, democracy. And the only way to do that is to get an accurate account of what actually happened.” So, we’re not going to be able to punish everyone who was a participant in apartheid. We’re not going to be able to throw three-quarters of the nation in jail and survive. So, what we’ve got to do is find another way. And their way was to say, “Alright, if you were an actor in these injustices that upheld this system, and if you come forward and are completely honest about what happened and what you did, we will trade truth for immunity—amnesty.”

That was hugely important on a personal level for people whose family members had been killed, jailed, tortured, or wronged in some way. In some cases—and this might be the overhyped aspect of restorative justice—it even led to communications between perpetrators and victims in which the victims actually forgave the perpetrators.

Now, I want to be a hundred percent clear: forgiveness is not a requirement of restorative justice. It is not required that victims forgive perpetrators. What is required is that the relationship be restored so that the perpetrator can reenter a functional, just society as a member of that society, and the victim, ideally, no longer has any claim to punishment against the perpetrator, who is now a newly reformed member of this newly just society.

This approach brings up the distinction between retribution and restoration in the very concept of justice, and that distinction is primarily relevant in societies that are already unjust.

Rick: Yeah, and I’ll say two things about that. I think that often when you hear complaints—let’s face it, from the right wing, and particularly the more vitriolic, MAGA right wing—if there’s something like affirmative action, they say, “That’s blaming me for something I didn’t do.” But that only makes sense if you think of justice as retribution. If you think of justice as restoration, then paying reparations isn’t blaming anyone for what they did; it’s restoring, as you put it, Leigh, restoring a society to a more just foundation and form.

Thinking about justice as restorative helps us move past a lot of these problems people raise when we start pointing out systemic racism, structural patriarchy, and so on. You know, all these laws that say you can’t teach something that makes someone feel bad about their heritage or who they are, or whatever—all of those laws are based on thinking that justice is about retribution, not about restoration.

Leigh: And that’s where it really gets sticky, right? Theories of justice in philosophy generally assume that we’re either behind the veil of ignorance in a kind of neutral or "no person" state, or we’re in a just society and we’re just correcting individual injustices. Very few of them actually deal with the scenario where we wake up, look around, and say, “Hey, this whole system is unjust. How do we fix it?”

We can’t just go back to the state of nature. We have to implement real, instrumental actions that will move us from where we are to where we want to go. That’s what’s called transitional justice.

David: And I think that’s something important to focus on because one way of describing attempts to respond to an injustice is to say, “Well, it’s just producing more injustice.” Right? You’re just answering injustice with more injustice. And I don’t think we want to go there. I think we need a way of talking about these actions that doesn’t just frame it as fixing injustice by adding more injustice. Transitional justice, I think, is a useful term—or at least concept—for thinking about those ground-level interventions that have to happen.

Leigh: I agree. We can say that sometimes we have to replace injustice with instrumentally, strategically deployed unfairness—but again, in the interest of a greater justice.

David: And of course, that’s going to be a contested decision, and it’s going to involve not just power, but distributions of power regarding who gets to decide these things. That’s also a political question that has to be centered in this conversation.

Rick: I just want to point out that this safeguarding of freedom for Kant entails that we work toward a just society. It’s not opposed to justice in common. And to use this concept, Leigh, that you brought up, even in situations of transitional justice, I think Kant’s theory of justice and his ethical theory in general apply, as I think his stance on taxation would show.

Leigh: That’s a really important point, because I do think that people often view Kant’s deontological approach to justice as simply upholding individual rights, but they forget that for Kant, upholding a moral principle individually means seeing that principle as one for me and for all at the same time.

Rick: Right. What I find interesting about justice, especially from a teaching point of view—and I’m sure both of you have encountered this at some point—is that frequently, students will ask, “What would Aristotle say about X?” or “What would Kant say about Y?” And my answer is, “Well, I don’t think it’s that complicated. He would say, ‘It’s wrong.’” Sometimes, just saying “It’s wrong” is enough.

David: I think it’s always an interesting question because they’re often asking things like, “What would Aristotle say about social media?” They’re taking something contemporary and trying to see how it would fit in an Aristotelian framework. And I think it’s an important question—they’re trying to reconcile the ancient thinking of Aristotle with their world and the issues they’re thinking about. But I think you’re exactly right. At some point, you do have to say, “Yeah, well, he would just say, ‘No, don’t do that.’”

Leigh: You know, at the risk of violating what Charles Mills warned against—which is “ideal theory as ideology”—I do, in general, think that if we’re asking questions about specific examples of justice or injustice, it ought not to fundamentally change the principles that our theory of justice proposes or wants to advance.

Rick: Right.

Leigh: Now, even as I’m saying that, I realize this falls closely into exactly what Charles Mills is warning against. But I do think that there are different theories of justice that are more amenable to those kinds of adjustments and theories that are less so. But before we close out this segment, I want to ask you both about a controversial example from our contemporary period: climate justice.

So, climate justice is obviously focused on the ethical responsibility of wealthy nations to address the impacts of climate change on poorer, more vulnerable nations. This inevitably involves debates about carbon emissions, accountability, financial aid, sustainable development, etc., etc. And it does seem that it’s hard to find a theory of justice that can accommodate all of these concerns in discussions of environmental justice.

David: I think one of the problems with the climate justice argument is, again, the question of who is the subject of justice in this conversation. When it’s seen as “rich nation versus poor nation” and organized around human communities in a very anthropocentric way, we miss that climate justice is really about our duty to the earth, which, in this case, is the subject of justice.

If it’s only about rich versus poor nations, then you get into quibbling about what is the responsibility of the rich nation to the poor nation, whose carbon footprint matters more, who should sacrifice, and so on. But when we look at it as a shared commitment that we have to the planet as a whole—occupied by humanity in total—and consider the planet itself as the subject of justice rather than the human population on it, that shifts the focus of how we think about climate justice. It doesn’t resolve everything, but at least it gives us a different perspective on the debates that seem to be complicating the picture.

Leigh: But isn’t it the case that in climate justice, if the question is our duty to the planet, we’re still the subject? It’s still anthropocentric—the planet is the object.

David: Well, that’s the problem. We tend to view the planet as an object rather than as a subject.

Leigh: But describe to me a climate justice question where the planet is the subject.

David: So, if you look at how, especially in environmental philosophy, the perspective has shifted from seeing the earth as raw material to be managed to seeing the earth as a subject in relationship with humanity, it changes the way we think about harm. We’re not just harming the earth indirectly by harming ourselves; we’re harming it directly as a subject.

I think that changes the way we consider the earth as a participant in the calculations made about fairness, justice, and so on.

Leigh: This might be my misunderstanding of what you’re saying, but I still don’t see how that’s not making humans the subject. I mean, to make the planet the subject of a justice concern about climate would require, it seems to me, saying something like the earth is morally culpable for hurricanes or for not adequately maintaining its ozone layer.

David: That’s only if you understand moral patiency as a byproduct of moral agency. The earth can be a patient without being an agent.

Leigh: But that would make it an object, not a subject.

Rick: That’s why I liked when, earlier, David used the word “participant.” And I think that’s what’s at issue here. We’ve talked about this before—I forget in relation to which topic—but it might be the case that I don’t consider something a moral agent. But in saying that it’s not a moral agent, that doesn’t mean it’s morally irrelevant or undeserving of respect and moral consideration.

I think there are ways of conceiving of the climate, the global environment, and all the different ecosystems that comprise it as being incredibly morally relevant. To use Kant’s language for a moment, we would have an indirect duty to it. As something that is not a moral agent, we can’t have direct duties toward it, but we can have indirect duties. And by the way, calling them “indirect” makes them no less duties than if they were direct duties. So I’d agree that the climate is a participant in our relations with one another, and I’d leave aside the question of whether it’s a subject or an object.

Leigh: I mean, I think simply asking any question about climate justice posits the moral patiency of the climate or the earth or the natural world.

Rick: Right.

Leigh: Ultimately, answering that question is going to be about what we do, not what the climate does.

David: But I think the important shift is that if we look at the climate as a participant in this intervention we’re making, we change the locus of justice from the human populations that will either benefit or be harmed by the redistribution of carbon emissions across the planet. Instead, we see it as something that we, collectively, are responsible for addressing—not just individual nations or states versus other individual states.

Rick: I agree with that. And I think the questions Leigh was pressing earlier about whether we should correct past injustices still apply. Because if we say, “Oh, wait, this is a shared responsibility,” a number of nations might respond, “Screw you, rich countries. You’ve benefited from this, and now you want to shut the game down.” They might say, “No, we’re not participating in that shared commitment to the environment.” So, I think this would be a moment when addressing past injustices has to come to the fore.

David: Yeah, I would agree.

Leigh: Yeah, I also agree. I think that “saving the climate” or “the earth” or “nature”—whatever we consider the beneficiary of whatever theories of environmental justice we devise and whatever actions we employ—is different from saying that poorer or still-developing nations are the beneficiaries of those climate actions. But I agree with Rick that it’s probably best to start by saying that both poorer or developing nations and the climate are beneficiaries, rather than trying to erase poorer and developing nations from the equation altogether.

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Leigh: So, we've covered a lot already in this episode, and we’re running out of time. But before we go, I’d like to discuss some systemic issues, some modern challenges, and maybe even what the future of the question of justice looks like. Rick, do you have particular things you think we should be looking at going forward?

Rick: I think one of the biggest challenges—and this has come up repeatedly in our discussion—is the way in which the centrality of a rational individual remains the main consideration when we talk about justice. Overcoming that, I think, in the Western world and the Global North, is an incredible challenge. Many people are beginning to see that we’re not going to get to an adequate notion of justice as long as we hold on to it. So, that’s a huge challenge.

I think issues we need to look to in the future as we strive to be more and more just have to do with these common problems we discussed at the end. You know, when the planet is destroyed, there will be no rich or poor nations to speak of. I also think we face a challenge—which connects to our earlier discussion—in thinking about different beings that might be moral actors, moral subjects, to use the term we just mentioned. So, I think these are all frontiers of justice, one might say.

David: I’ll follow that by saying I think there are two items here—one more theoretical and one more practical. On the theoretical side, it may be the case that our theory of justice itself needs a kind of “restorative justice.” Western European perspectives have dominated the discussion of justice, as Rick pointed out, and this has been true even in our conversation today. We may need to rebalance our thinking about justice and theorize justice differently because the discourse has been dominated by a distinctly Western European way of thinking about what justice is, what theories of justice entail, and even how we address the question of justice.

In other words, our theories of justice might already be unjust, and that’s something we have to figure out how to redress.

The second item is more practical. I think we’re in a moment where we’re relying on algorithms to be our rational agents that can, ideally, bring justice in ways human beings may not have been able to do in the past. I’m thinking, for example, of algorithmic bias. We assume that algorithms will sort through job applications and make selections based solely on rational, data-driven points, and therefore provide us with a more just outcome. But it turns out that we’ve trained these algorithms on our own practices and ways of conducting business, and as a result, they inherit all kinds of biases and prejudices. These biases are then reproduced, but under the veil—not of ignorance, in this case—but of mathematical rationality, which appears objective and rational but is actually compounding the problem.

Rick: What about you, Leigh?

Leigh: I suppose when I think about the future of justice, my two primary areas of concern are intergenerational justice and non-human justice. Intergenerational justice, a theory that already exists thanks mostly to critical race theorists, extends justice considerations to future generations and whatever future generations might include.

This leads me to my second area of concern: non-human justice. That would mean the inclusion of animals, ecosystems, and machine intelligences within a framework of justice that also includes us. This, of course, raises questions about animal rights, conservation, machine rights, and the intrinsic value—or lack thereof—of each of those. Those are my future prospects when it comes to thinking more about justice.

But unfortunately, once again, our bartender is giving us last call.

David: It’s unfair.

Leigh: It’s always unjust, but she’s trying to create a world in which there will never again be a last call and we can sit at a bar infinitely, discussing philosophical topics as long as we want.

Rick: But one that she’s not working at.

Leigh: Yeah, exactly. Thanks so much for joining me in this conversation, you guys, and I’ll catch you next time.

David: All right. Bye.

Rick: Later.