Thinking about Justice again

I was again watching the TV broadcast of Justice, the Harvard course taught by Michael Sandel. I have a few simple thoughts.

It seems to me that since we think with our brains, our concept of justice must come back to what or who we are. If a proposition does not correspond to what we intuitively feel to be just, then there is something deficient in it. As I consider theories of justice it seems to me that ethicists return to justifications based on what "feels right".

But what feels right is also a function of culture, what we learned at our mother's knee. I have always thought the Kant's deontological ethics owe something to his Germanic culture. That actually seems useful to me in that we have developed societies that seem much better at doing justice than those of the past. (See The Better Angels of Our Nature by Stephen Pinker.) On the other hand, German culture brought us militarism and people who claimed they were only doing their duty when the conducted the holocaust.

I also wonder about whether it makes sense socially to go through all this complex analysis. In the famous example of the trolley car (which will either kill five people if allowed to continue on its course, or can be stopped by an action that would drop someone on the track and derail the trolley) going into a long, exhaustive analysis to make the right decision would leave the decision made in abeyance. We recognize the heroism of the soldier who instantaneously throws himself on a grenade to save his buddies, doing so without any reflection. More generally, it would seem that the world is a better place if people chose lots of courses of action according to what feels just without much reflection, rather than spending a lot of time and effort reviewing the ethics of every decision.

Which brings me to the point that maybe we should be going towards an explicit theory of "situational ethics", not in the sense of Joseph Fletcher, but rather in the sense of the role of the person making a decision as to the just course of action. Thus the just course of action for a soldier may well be dependent on his/her role as a soldier in battle; the just course of action may depend on whether a person is in the role of a policeman, a doctor, a parent. or a bystander with none of those roles.

Utilitarian ethics seem to make a lot more sense to me for a legislator analyzing proposed legislation rather than a parent analyzing what to do with no money and a hungry child. If one is actually involved in a decision that may affect millions of people with strong benefits and risk associated with several alternatives, a lengthly, detailed and expensive analysis may well be required.

The more I think about the U.S. Constitution, the more impressed I am by the authors who more than 200 years ago conceived of a system that would evolve, that would be based on the negotiation among many conflicting systems, that would work to assure the rule of law rather than the rule of man, that would provides checks and balances between those who set policies, those charged with implementing them, and those charged with assuring the rule of law, and that would protect basic human rights against the will of the majority that would infringe upon those rights. Getting justice in the real world is hard and the results of the Constitution have often been unjust, but could you have done better?