Justice comes in a variety of kinds:

E.g., Distributive Justice - justice as it is concerned with the distribution of goods & resources in society
Retributive Justice - justice as it is concerned with the punishments handed out by a legal system

Compensatory Justice - justice as it is concerned with making amends for past wrongs

E.g., ongoing disputes about residential schools
reparations to Japanese Canadians for imprisonment during WWII
the ongoing movement for reparations for slavery

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The System:  For clarity, let's consider a specific kind of setup for affirmative action.

Suppose we are  in charge of hiring someone to do a particular job. Our question is whether it could be just to set up a system that would require us to pick a competent candidate from some disadvantaged or formerly disadvantaged group even if he/she is not the best qualified candidate.

1. Payback for Past Discrimination in this Area:  "when members of a particular group have been barred from employment of a certain kind, that since this group has in the past received less than its fair share of the employment in question, it now deserves to receive more by way of compensation." (Sher, 306)

Is this convincing?

Sher's Worry:  Here, the beneficiaries of this program won't necessarily be the same people as those who were discriminated against. (307)

e.g., they may be a new generation of Native Canadians

This seems to assume that a harm can be done to a group, rather than the people who make it up.  Can groups really be harmed?

Another Worry:  This is reverse discrimination & so, no less wrong than 'normal' discrimination.

Does the reason for discriminating make a difference here (since our motivation is to compensate for past injustice)?

2. Payback for Past Discrimination in Other Areas:  "even if these current group members have not (yet) been denied employment, their membership in the group makes it very likely that they have been discriminatorily deprived of other sorts of goods. ...a person who has been deprived of a certain amount of one sort of good may sometimes reasonably be compensated by an equivalent amount of good of another sort." (307)

The preferential hiring is compensation for discrimination in other areas of life.

Is this convincing?

Sher's Worries: (1) Why this form of compensation?  (308)

(2) The wrong people will lose out here. (308)

E.g., why not get rid of older tenured professors who benefited from the discriminatory system instead of people who are just starting out?

Another Worry: Who will gain from this system?  What about class divisions within the disadvantaged group?

3.  Payback for What the Person Might Have Been Like: "a child who is deprived of adequate food and education may lose not only the immediate enjoyments which a comfortable and stimulating environment bring but also the subsequent ability to compete equally for other things of intrinsic value.  But to lose this ability to compete is, in essence, to lose one's access to the goods that are being competed for; and this surely, is itself a privation to be compensated for." (309)

Sher thinks this does provide an adequate justification for affirmative action. (309)

"If the lost good is just the ability to compete on equal terms ... then surely the most appropriate ... way of substituting what has been lost is just to remove the necessity of competing on equal terms ..." (310)

Sher also thinks this solves the problem of 'the wrong people losing out'.  The people who don't get the job did benefit from adequate food, etc.

Problems: (1) How do we decide what enough compensation is?  How do we answer the question - what would you have been like if you were brought up differently? (311-2)

(2) Does it even make sense to compensate you for what would have happened if you were a different person?

A Big Question: What is the point of justice?  Sher seems to be taking the view here that a large part of the business of justice is to compensate people for bad luck.  That is, he thinks people should be compensated for the disadvantages discrimination has caused them because it is not their fault that they were discriminated against.

Is this the right way to think about justice?

Some Implications of a Luck Based Approach to Justice?

1. Compensation for Upbringing?
2. Compensation for Lack of Talent?
3. Compensation for Ugliness?

What's the alternative?

Living with unfairness?

This points to an important problem in ethics & political philosophy.

Luck makes huge differences in our lives all the time.  What should we do about it?  If we do something, the worry is that everything will turn out to be a matter of luck at some level. If we do nothing, the worry is that this will be unfair.