And this is another way of saying that the justice of the punishment does not mean that the criminal has a "right" to it. Given our definition of rights in Chapter 3 of Section 1 of this Part 6.1.3, that they are moral powers to do something, this is absurd. Hence, the concept of justice does not always mean "respecting the rights of others."
And since we are now dealing with society, we can unpack the various senses of "justice." First, the general definition.
Justice is the virtue of fitting one's action to the reality of the other people affected by it.
We saw this in the discussion on the "cardinal virtues" in Chapter 6 of Section 1 of the fifth part 5.1.6. I mentioned there that if you generalize and fit the action to all the people involved including yourself, this becomes the same as morality in general, and is the cardinal virtue of honesty, which is what the Greek word Aristotle used primarily meant, and which was why he included this all-inclusive sense in his definition of dikaiosyne. But our word "justice" deals only with a person's relation to other people than himself. You aren't really being "just" to yourself when you act consistently with yourself, but "true" to yourself or "honest"; and similarly, when you violate your own reality (acting as if you aren't what you really are), you're being hypocritical or dishonest, not "unjust" to yourself.(1)
Here are various senses of justice, then:
Commutative justice is the virtue of not violating the rights of others.
Retributive justice is the virtue of imposing a penalty on a violator, consistently with its being the least harmful one in his situation which will still preserve the sanction.
Distributive justice is the virtue of exacting cooperative acts from those whose cooperation inconveniences them least, and giving to those who need the society's help most.
Commutative justice is really what we have been talking about in the preceding two chapters: respecting the rights of others, including giving them compensation for services rendered. All I want to do here is reiterate that commutative justice does not mean the same thing as "treating everyone equally."
Retributive justice is what I alluded to above, when I said that it is just to impose the penalty on the criminal because "he asked for it" by committing the crime. He doesn't deserve the penalty, nor did he "earn" it, as if it were a kind of reverse "payment for services rendered." Still, he is responsible for the penalty because he committed the crime and could have avoided the penalty by avoiding the crime. You will recall that in discussing morality and the choice in Chapter 5 of Section 1 of the fifth part 5.1.5 I said that you are responsible for what you could prevent by your choice. Of course, the authority is responsible for the penalty also, because he could choose not to impose it; though he is not morally responsible, because he imposes it only through the Double Effect, where the harm is precisely kept out of his choice. Hence, the moral responsibility for the harm done is the violator's.
And it is because the violator is the one morally responsible for the penalty that the punishment is suited to his reality, and therefore is just. But, as I said, this does not mean that he has a right to it, or that, because it is just, it may be chosen as such by the authority. From the authority's point of view, the harm must always be an unfortunate but unavoidable side-effect of "preserving the sanctity of the law," as they say.
As to distributive justice, we will have to elaborate on it later, because its main application is in civil society, whose common goal is the preservation of the rights of the members. But the general idea is that cooperation is needed for people's rights to be protected; and therefore, the society can demand cooperative acts (which are not in themselves in the person's self-interest, remember) from those who are most self-sufficient (and who therefore need civil society least) and use these cooperative acts to help out the people who would be dehumanized if they were left on their own. Thus it is just for civil society to take most from those who have most and give them least, and to give most to those who have least and who contribute least to the society. But this sort of thing is precisely not just on the view of commutative justice, because there is no "compensation for services rendered" on the part of those who contribute most to the society, but only a threat of punishment if they refuse to contribute. Commutative justice applies only to the economic relationship; distributive justice and retributive justice belong to the social relationship.Next
1. Of course, there is a sense that you are being "unfair" to yourself; but this supposes a kind of mental separation between you and yourself; you as agent are being "unjust" to that other "you" that is violated by what you do.