Now, one possibility is that we are confronted at this point with a stand-off between two rivalanalyses of a concept, a depressingly familiar scenario in philosophy. Is there any reason to
think that the Justinian concept of justice is preferable to Hart’s broadly Aristotelian one?Well, one question is, whether the elements of Hart’s concept of justice are sufficient to bring
us within what we would normally take to be the domain of principles of justice. The answer,
I think, is ‘No’, because the two elements he describes –
the likeness maxim and theallocative criterion
–
can be satisfied by principles that are clearly not principles of justice.Suppose a wealthy individual sets aside a portion of his wealth to promote academicexcellence. He adopts the principle of using these resources to fund doctoral scholarships foroutstanding students who are graduates of his beloved old primary school. Exceptionalcircumstances aside, this scheme of beneficence does not plausibly reflect a principle of justice, yet both the bare like cases maxim and the distribution of benefits and burdens arepresent in this case. And this is so in spite of the fact the philanthropist
’s scheme impacts on
the interests of others, perhaps in quite radical ways. And the ready-to-hand explanation for
that conclusion is that the allocation in question is not one that directly bears on anyone’s
rights. This suggests that a principle of distribution will be a principle of justice only if thebasis of distribution, whether it be need, merit, desert or whatever, is (intelligibly) portrayedas one that generates a right to a certain allocation.