The concept of formal justice

Conclusion

In Greek mythology, Themis, the goddess of justice, is blindfolded so that she may not see those who stand before her, and consequently, so that she can administer justice consistently and impartially. The imagery provides an apt illustration of the formal dimension of justice. Yet it serves only to blind us to the actual workings and character of the practice of doing justice. I have argued here that we must take seriously the full implications of material principles of jusitce. And when we do, there is no longer any conceptual space left in our reflections on justice for the virtue of formal justice. Of course, the just treatment of relevantly similar subjects does result in the equal treatment of these subjects; this, after all, is a logical consequence of acting upon a material principle of justice in similar cases. But this, let me emphasize, is only a consequence of doing justice and as such it reveals only a contingent feature of doing justice. The proponents of the formal dimension of justice have, so to speak, failed to see the trees through the forest. Impressed by the consequence of equality of treatment between cases, they have generalized their observations into specific claims about what it means to do justice to certain subjects. These generalizations, in turn, have led to the unfortunate and misleading reification of the concept of formal justice.

Moreover, by exposing the ‘myth’ of formal justice, the image of justice as an austere, rationalistic, and abstract virtue is also called into question. Justice is not blind to particular subjects. Quite the contrary, it looks to those who stand before her and demands from us the response which is appropriate for them. The practice of doing justice, this is to say, signals the need to respect the rights and deserts of particular subjects. Or rather, we comprehend and express this need by means of the practice of doing justice.