The Idea of Small Justice

• Published date: 01 September 2021
• Author: Jonathan Crowe
• Date: 01 September 2021
• DOI: http://doi.org/10.1111/raju.12324

© (2021) John Wiley & Sons Ltd.

Ratio Juris. Vol. 34 No. 3 September (224–243)

The Idea of Small Justice

JONATHAN CROWE*

Abstract. Talk about social or distributive justice, at least among legal and political philoso-

phers, tends to focus heavily on institutions. This way of thinking about justice owes a great

deal to John Rawls. Rawls’s theory of justice was famously criticised by Robert Nozick, who

in turn attracted an influential critique from G. A. Cohen. The story of these critiques is well

known, but this article tells it in an unfamiliar way. The common theme in Nozick’s and Cohen’s

arguments, I contend, is that there is a way of thinking about social justice that focuses not

primarily on institutions, but rather on interpersonal relationships. I call this idea small justice.

Justice, on this view, is identified with whatever institutions would arise through a process of

social evolution from ethical interpersonal dealings repeated consistently over time.

1. Introduction

My topic in this article is justice— or, more specifically, what is sometimes called so-

cial or distributive justice, by contrast to other varieties, such as corrective or pro-

cedural justice. Justice, in this sense, is a feature of social arrangements, as opposed

to individual acts or bilateral relationships; it concerns, to paraphrase Justinian’s fa-

mous definition, how to render to everyone in the community what they are due

(Justinian 1987, bk. 1, title 1, § 3). The idea of justice as consisting in an appropriate

distribution of goods among community members is neutral, in principle, as to how

this distribution is achieved. However, talk about justice, at least among contempo-

rary legal and political philosophers, tends to focus heavily on institutions. Justice

may be a property of societies generally, but whether a society is just, on this view,

depends primarily on the justice of its institutions. This way of thinking about justice,

I want to suggest, owes a great deal to John Rawls. The Rawlsian paradigm, for better

or for worse (I say for worse), has become so influential— both within and outside

analytical political philosophy— that it is difficult for a contemporary audience to

think about justice in any other way.

* This article owes a profound debt to discussions over many years with Niharika Ahuja, Cicely

Bonnin, Mikayla Brier- Mills, Zali Brookes, Catherine Carol, Rachael Field, Danielle Ireland-

Piper, Constance Youngwon Lee, Peta Stephenson, Lisa Toohey, Kylie Weston- Scheuber, and

Brenda Yuanyuan Xiong. Earlier versions were presented to the Julius Stone Institute of

Jurisprudence at the University of Sydney in June 2019 and the legal theory seminar hosted by

the University of Melbourne and the University of Auckland in December 2020. I am grateful to

the participants for their helpful comments. Thanks also to the anonymous reviewers for de-

tailed and insightful feedback.

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Ratio Juris, Vol. 34, No. 3 © (2021) John Wiley & Sons Ltd.

The Idea of Small Justice

The Rawlsian way of thinking about justice is, however, open to question. This

article highlights some drawbacks of Rawls’s institutional approach, before outlin-

ing an alternative. I begin by exploring the main features of Rawls’s view. I then

put pressure on Rawls’s conception of justice by telling what is, in some respects, a

familiar story: first, Robert Nozick’s criticisms of Rawls, represented by his notorious

Wilt Chamberlain argument; and, second, G. A. Cohen’s riposte to Nozick and his

associated defence of socialist distributive principles. I want to tell this story, how-

ever, in an unfamiliar way, drawing out a lesson that perhaps none of its protagonists

would recognise. The moral of the story, as I tell it, is not that Rawls was right or

wrong about the properties of just social institutions, but rather that by focusing on

institutions he thought about justice in an incomplete and unstable manner. Nozick’s

and Cohen’s arguments— and, in particular, the examples they use to illustrate those

arguments— draw this out in different ways, although they may not have realised it.

The common thread running through Nozick’s and Cohen’s discussions, I sug-

gest, is that there is a way of thinking about justice that focuses not primarily on the

design of social institutions, but rather on interpersonal relationships. I don’t mean

merely that we can think about justice in corrective or procedural terms as a feature

of individual acts or bilateral dealings, but rather that we can think about social or

distributive justice (that is, justice as a feature of group or community arrangements)

as something that happens primarily at the interpersonal level and manifests itself

in social institutions only as a by- product of these more localised relations. Justice,

on this conception, is identified with whatever institutions would arise through a

process of social evolution from ethical interpersonal dealings repeated consistently

over time. I call this conception small justice, since it starts out small, taking shape at

the interpersonal level. Small justice, as I present it, is a kind of undercurrent running

through contemporary legal and political philosophy. The dominant picture of jus-

tice found in the work of Rawls, Nozick, and Cohen is an institutional one. However,

under the surface— at least in the latter two authors— one finds a more radical pos-

sibility at play. Nozick’s and Cohen’s arguments are susceptible of a reading that

highlights the viability of small justice as an alternative to the Rawlsian picture with

which they are in dialogue.

2. The Rawlsian Paradigm

My primary focus in this section is not on the details of Rawls’s theory of justice,

such as his use of the methodological device of the original position or his substan-

tive theory of justice as fairness. Rather, I want to focus on a more fundamental

question— namely, how he conceives the subject matter of his enquiry. Rawls titles his

magisterial work A Theory of Justice, but what is justice in the first place? According

to Rawls (1999, 3), it is “the first virtue of social institutions.” It is notable, in this

respect, how quickly Rawls moves from a general definition of social or distributive

justice to a focus on institutions. In defining the concept of social justice, he begins

by noting that a “set of principles is required for choosing among the various social

arrangements” that determine the distribution of advantages and resources within a

society (ibid., 4). This description of justice mirrors the definition from Justinian in-

troduced above: it concerns the social arrangements needed to give each person their

due. However, in the next sentence, Rawls continues that “[t]hese principles are the

principles of social justice: they provide a way of assigning rights and duties in the