What does it mean to say 'I want Justice?' Surely, the idea I am seeking to convey is that I have suffered a wrong and am seeking redressal. What type of wrong? Surely it is one that everybody would agree was an undeserved injury or deprivation. Suppose it turns out that I want to cut off the head of some innocent guy just because I think it may help me relax. Then people are likely to say 'you want to satisfy your blood lust. You don't want justice.' It may be that after I cut off the head of some poor sap, it is discovered that he was a terrorist intent on mass murder. My action may be praised as promoting the ends of Justice. But, the fact remains, I did not want Justice. I wanted to give vent to blood lust.
On the other hand, a person who says 'I want Justice' and points to the man who unjustly killed her son may set off a chain of events which ends with the guy being hanged by the neck till he is dead. We would say 'that woman gained justice'. We would not say 'that woman gained vengeance'.
Justice, as an idea, has what Kant would call a transcendental element- i.e. one which is independent of empirical evidence or sense impressions but which arises in an a priori manner and which may be one everybody, after proper reflection, will agree as itself just, fair and prescriptive. It doesn't matter whether or not everybody does in fact agree to this. All that matters is that the idea have this transcendental aspect. If it doesn't, then when one speak of Justice one is simply expressing one's preferences. Thus I might say 'I'm cold. How unjust! How unfair! Why should some people feel warm while I, who am too lazy to turn up the thermostat, am feeling distinctly chilly?' In this instance, no idea about Justice or Fairness has been advanced. I have used the word 'unjust' to mean 'I don't like this'. If I turn up the thermostat to get warm, I have acted in a self-regarding manner. We don't feel that Justice has been advanced. More generally, any piece-meal action focused on the realization of a desired state- e.g. subsidizing fuel so more people can afford to turn up the thermostat- may be characterized as just by those who benefit or unjust by those who have to pay for it but no 'idea of justice' is implicated in it precisely because the thing is piece-meal and 'realization focused'. Thus, it is merely part and parcel of local politics. It is mere puffery to describe the thing as part of a crusade for Justice of some type.
What happens when we use a word like 'Justice' without having any 'transcendental' idea- unconnected with the here and now- in mind? Then, the suspicion arises that people who say 'this is unjust' are motivated by self-interest or personal prejudice or are virtue signaling simply. They are canvassing support for a selfish or egotistical reason. They are not votaries of justice at all. Let them pay for assistance and, if it pleases them to do so, prose on about Justice to their heart's content.
Institutions are ways to give concrete form to ideas that people may find useful. If an idea corresponds to a 'concrete universal'- i.e. has a transcendental aspect- then it can be institutionalized. Appealing to that idea is to appeal to something inter-subjective and potentially impartial. Justice must be something institutionalizable otherwise it is merely a matter of personal preference or 'Thymos'.
An Institution differs from an Enterprise in that its motivation is explicitly 'transcendental'- i.e. a priori and abstract and concerned with an ideal- even if there is an implicit awareness that such is not genuinely the case. Though ideals may be pursued by amateurs- e.g Batman battling the Penguin- professionalism requires some Institutional trappings if only for advertising purposes.
Thus Schools are set up to spread Knowledge- not make a little money for otherwise unemployable teachers. Laboratories are set up to advance Scientific Research- not serve as a front for the production of crystal meth. Courts are set up to administer Justice- not serve as a means to harass your enemies with bogus law suits. Armies are created to defend the country- not take it over and run it into the ground as happens in Pakistan.
In each case it is useful to have a transcendental idea of the thing which the Institution is supposed to foster. That idea may be jejune. It may be 'cheap talk'. But if it is useful, then that is what will happen. The satirist may say 'Schools foster ignorance! The Army institutionalizes cowardice! The Courts are the mothers of Crime!' but we still need to pretend that this is not their true purpose. Thus Institutions should be reformed- or at least the attempt should be made- even if there is little empirical evidence that things really will improve. In the same way that we can't reach the stars yet may usefully plot our course by observing them, so too can we profit by ideals which remain unattainable.
Amartya Sen, with typical Bengali wit, takes a more cynical view. He says having an ideal of justice is useless. It makes no difference to the real world. But this is also true of criticizing ideals of justice. If the one is redundant so is the other. The problem is that some people have charisma. If they also have an ideal of justice which the can articulate then real world change can and does occur. Sometimes Institutions are founded which drive rapid socio-economic growth such that the 'real world' is completely transformed. What's more, here and now, we find that people with a belief in ideal justice can do very well for themselves and for Society precisely because they articulate 'endoxa' re. the ideal of justice. Thus, on purely empirical or consequentialist grounds, we must accept the utility of 'transcendental institutionalism' because the fact is Judges are respected and well remunerated and countries which have sound Judicial institutions seem better able to deliver prosperity and security to their citizens. By contrast, denying there is any worthwhile ideal of justice is foolish. If you say 'let us do x to make things less unjust', the answer comes back 'why start with x? Why not start with your chopping your own head off and shoving it up your arse so as to correct a manifest injustice perpetrated by Mother Nature?' By contrast, if you stick to describing an ideal justice system you may persuade people to bring about reforms such that the problem of x is properly tackled alongside other injustices you may not be aware of. When we speak of ideal situations we elide 'concurrency' problems. We side step problems of computability and complexity. Furthermore, because the way in which Society embodies ideals is through Institution building or reform, we are not tackling one problem in isolation but preparing Society to deal with vast classes of comparable problems. In the case of Justice, it is obvious that 'stare decisis' has a multiplier effect. One decision in one case covers a whole range of similar cases. This changes Aumann 'public signals' thus promoting better correlated equilibria while also reducing Uncertainty.
Sen has a second argument against 'transcendental institutionalism'- viz any such conception can be 'reasonably rejected'. But, for coordination games, it does not matter if people 'reasonably reject' Schelling focal points. They soon find out that this is a foolish thing to do. Why? If the other kids meet up at Burger King after class but you go to McD because you have scientific proof that their milkshakes are better then...you come across as a johnny-no-mates. Sad.
Sen's third argument is equally foolish. He thinks we need a broader theory. But nothing is stopping him having any sort of theory. He is welcome to say mean things about 'transcendental institutionalism'. But since he can't point to anything superior anywhere in the world all he achieves is demonstrating that the guys he attacks- who weren't Jurists at all but were Professors of shite subjects- were as shite as himself. In other words, his philosophical achievement is to say philosophers are shite just as his achievement in Econ is to say Economists are stupid and evil. One reason Sen may be right, at least with respect to himself, is because the Academy, as an Institution, has decided to give up on anything transcendental in order to focus on the realization that it is a Ponzi scheme.
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