Three Different Currents of Thought to Conceive Justice: Legal, and Medical Ethics Reflections

Abstract

The meaning of justice can be defined according to a juridical, human, theological, ethical, biomedical, or social perspective. It should guarantee the protection of life and health, personal, civil, political, economic, and religious rights, as well as non-discrimination, inclusion, protection, and access to care. In this review, we deal with three theoretical concepts that define justice in all its aspects. (1) The utilitarian theory, which justifies moral statements on the basis of the evaluation of the consequences that an action produces, elaborating a pragmatic model of medical science. (2) The libertarian theory, which considers freedom as the highest political aim, thus absolutizing the rights of the individual; here, the principle of self-determination, with respect to which the principle of permission/consent is the fundamental presupposition, plays a central role in the definition of the person. (3) The iusnaturalist theory, in which man’s moral freedom is identified with the ability to act by choosing what the intellect indicates to him as good; the natural moral law that drives every conscience to do good is therefore realized in respect for the person in the fullness of his rights. In conclusion, different forms and conceptions of justice correspond to different organizations of society and different ways of addressing ethical issues in the biomedical domain.

1. Introduction

What is justice? To the question about what justice was, the Austrian jurist and philosopher Hans Kelsen replied that “this is one of those questions to which man was aware of never being able to give a definitive answer, but only to formulate the question in a better way” [1].

“It seems that justice and injustice are considered in several senses”, said Aristotle in the Nicomachean Ethics (Aristotle, Ethics), substantiating its semantic pluralism and theoretical complexity [2]. What, then, is justice? In fact, it is not easy to provide a univocal and exhaustive answer because there are many levels of analysis and different forms of justice. From the point of view of the levels of analysis, justice can be defined according to a theological, ethical, or socio-juridical perspective.

In the theological perspective, typical of natural justice or the doctrine of natural justice, alongside positive law, created by men, there is a law implicit in nature. Right law is axiologically superior to positive law, so positive law deserves obedience only if it conforms to natural justice [3].

On the level of individual ethics, justice consists of the total and ideal virtue that concerns the inner harmony of the elements, achievable through individual education [4].

According to a juridical and social perspective, in the well-known Brocard of Ulpiano, suum cuique tribuere, that is, to give each one his own, stands the meaning that can be ascribed to the term justice [5]. This definition, however, leads to questions about what is meant by “his own”, who should recognize “his own”, and who should receive “his own”. In this sense, an answer could lie in an extensive interpretation of Ulpian’s juridical maxim, which defines justice as “the constant and perpetual will to give each one his own right”.

In relation to the different forms of relationships among individuals, such as between the individual and society, and in society as a whole, different forms of legal, commutative, distributive, and ontological justice can be identified. Originally introduced by Aristotle in Book V of the Nicomachean Ethics, these distinctions have been consolidated as a foundation for the theoretical developments of the concept of justice in the context of contemporary thought.

The concept of justice, understood as “giving each one his own”, is defined in a peculiar and different way when referring to a form of legal, commutative, distributive, or ontological justice. “Let us, therefore, consider in how many ways it is said that one is unfair. It seems that unfair is both the lawbreaker and the one who wants an undue advantage, as well as the iniquitous one, so it is clear that both those who are law-abiding and those who are fair are right. Therefore, it is just what is legal and what is impartial; it is unfair both what is illegal and what is iniquitous” [6].

Legal justice consists of conforming common social behavior to the laws. In this sense, regardless of the content and based on the obligation of the associates to adapt their behavior to the law, legal justice assumes the characteristics of formality and exteriority [7].

The legalistic model of justice has been expressed and taken to its extreme consequences by Hans Kelsen’s doctrinal elaboration. According to Kelsen’s normative thought, subjective law cannot be conceived as a reality preceding or extraneous to the positive norm but rather as the juridical possibility of provoking the sanction. The law, in practice, consists in obtaining the desired social conduct of men through the threat of a measure of coercion to be applied in the event of contrary conduct [8].

Commutative justice concerns the social relations between private subjects, ruled and controlled by the procedural correctness of exchanges, transactions, and agreements. It is a justice based on the principle of arithmetic equivalence, that is, on the restitution of what has been received or its equivalent, and it is a restorative or compensatory justice if, as a result of actions suffered and unwanted, the equivalences concern negative phenomena (for example, damage compensation, crime penalty). Commutative justice assumes a prevailing role in the context of libertarian doctrines, identifying freedom as the highest political task [9], for which the subject of law coincides with the individual able to exercise freedom, while justice must be limited to protecting his freedom of self-determination.

In this context, since justice should be limited to checking the procedural rightness of exchanges, transactions, and contracts among free private subjects, the role of the state is “minimal”. The “minimum” liberal state has the task of protecting fundamental rights, guaranteeing the exercise of ownership, and ensuring the functioning of the market in order to pursue formal equality while also refraining from any intervention that could interfere with subjective freedoms [10].

Distributive justice concerns the relations between the state and private entities and consists of the fair and proportional distribution of assets (honors or wealth) in relation to the merit and value of those who receive these assets. The relationship between individuals is mediated by society, and the distinction between horizontal equity (people with the same economic conditions pay the same tax) and vertical equity (people with less ability to pay contribute less to public spending, while people with greater ability to pay contribute to a greater extent to public spending) is intrinsic to this form of justice. Therefore, individuals must contribute to society according to the principle of proportionality, and society is called upon to provide general services to the community.

Distributive justice is the form of justice in which we recognize the theory of social egalitarianism, which, while recognizing the value of individual freedom, encourages social needs and the collective good over the individual good. To achieve this goal, the fundamental institutions of society (basic structures) must guarantee each individual the highest fundamental freedoms and equal opportunities. Economic differences, if any, must benefit the most disadvantaged members of society. In this context, government, and health systems should take action and make their resources available to guarantee people living in conditions of hardship and poverty, immigrants, unaccompanied minors, etc., fair health and social services [11,12].

Ontological justice consists in the recognition of equality between men as an absolute (not relative) and universal (not particular) good in order to guarantee each man what is his own. It is the form of justice promoted by the natural justice theory, where “giving each one his own” means recognizing on a social level to every human being what he is entitled to ontologically: the essential value of life, from which the intangibility of the life of every human being follows, the coexistential value of the common good connected with the principles of solidarity and subsidiarity. Unlike and contrary to individualism and collectivism, according to the theory of natural justice, the common good can only be pursued through the search for the good of individuals [13,14].

Justice can be conceived in different forms that are related to different organizations of society, different ways of understanding relationships among single individuals as well as individuals and society, and also different conceptions of law.

So, when can we consider a society to be fair? In relation to the different forms of justice analyzed, is it possible to have different models of fair society related? A fair society distributes the goods we value in a fair way, that is, giving everyone their due. However, difficulties arise when we begin wondering what is due to people and why [15].

In the following paragraphs, we will analyze three different ways in which it is possible to conceive justice, three models that envisage different and uneven distributions of goods to which we usually attribute the greatest value (civil, political, and social rights and duties), that are the utilitarian theory, the libertarian and liberal theory, and the natural justice theory, focusing attention on the possible consequences in the biomedical field [16].

The aim of this work is to provide Healthcare Workers (HWs) involved in clinical ethics with a perspective on the different theories of justice and their distinctive features. Clinical ethics is a field of bioethics that is concerned with identifying, analyzing, and resolving moral questions and disagreements arising from the care of patients with the aim of improving the quality of care provided to them [17]. Sometimes, HWs have to deal with complex issues such as the end of life, access to medical care, management of limited health resources, and other issues that presuppose knowledge of and adherence to a specific idea of justice. How should patients’ access to care be managed under conditions of limited health resources? Adopt criteria related to clinical appropriateness and proportionality of care, or criteria for access to intensive care inspired by principles of distributive justice based on age. What is the limit between therapeutic duty and the ethical obligation to intervene for curative purposes and clinical futility? Does the plane of ethical reflection coincide with or differ from that of legal legitimacy? Each theory of justice would give a different answer to each of the questions mentioned. Therefore, it is possible to state that different theories of justice differentially influence medical choices. Justice is a complex concept involving the fair distribution of resources, equality of opportunity, and respect for individual rights. Different theories of justice provide perspectives and guiding principles to address ethical issues and decisions regarding the distribution of medical resources, access to care, and treatment priorities [18].

2. Utilitarian Theory: Most Happiness for the Greatest Number of People

Utilitarianism justifies moral statements on the basis of the evaluation of the consequences that an action produces and not on the basis of the agent or the act itself. In this sense, utilitarianism is a consequentialist theory, as it considers ethical the action that produces the best (most useful) consequences compared to other possible alternative actions [19].

It is the theory that is inspired by the philosophical–legal thought of Jeremy Bentham (1748–1832), whose cardinal principle is that the task of the individual and community is the pursuit of the greatest happiness for the greatest number of people. The community is to be understood as “a fictitious body composed of individual persons” whose interest is the sum of the interests of the members that compose it [20,21,22].

According to the utilitarian moral philosophy, it is right to do everything that can maximize utility, that is, whatever can maximize pleasure and/or happiness and minimize pain and/or frustration. The measure of right or wrong is linked to our “supreme masters”, pleasure and pain [23].

Actions are morally correct in the case that they tend to bring happiness, and they are morally incorrect if they tend to produce the opposite of happiness. Pleasure and release from pain are the only things that are desirable as purposes, and all desirable things are desirable either for the pleasure deep-rooted in them or as a means of promoting pleasure and preventing pain.

Utilitarianism is therefore proposed as a science of ethics based on the idea that it is possible to calculate the consequences of a given action on the basis of the cost/benefit relationship.

The doctrine of John Stuart Mill comes from Benthamian utilitarianism (1806–1873). Mill, while identifying himself in Bentham’s theoretical framework, unlike his predecessor, recognizes that some types of pleasure are more desirable and appreciable than others.

Bentham thought, in fact, that the only basis for judging whether one experience is better or worse than another one is a quantitative assessment of the intensity of pleasure or pain related to that specific experience. Mill, on the other hand, thought that a qualitative evaluation of pleasures must be made between two pleasures; the one that can be considered the most desirable is that preferred by all or almost all those who experience both. If those who have a qualified knowledge of both pleasures place one above the other and prefer it, even knowing that it will be accompanied by a greater dose of dissatisfaction, and would never accept the other pleasure in return, whatever its quantity, then it is right to attribute to the enjoyment they have chosen a qualitative superiority that goes beyond the quantitative aspect [24].

Three elements are the basis of utilitarianism: utility as a value to be considered, consequentialism as a criterion for evaluation, and an allocation of resources based on the maximization of overall welfare [25].

It is clear that the common denominator of utilitarian ethics is the radical refusal to be able to reach a universal truth and a norm at the moral level. On this topic, Bentham expressed himself in a desecrating way, defining the idea of natural rights as “nonsense on stilts” [26].

The goal of outlining an impartial morality based on utilitarian principles is well illustrated with an example by the philosopher William Godwin (1756–1836). Due to a fire, Archbishop Fenelon and his maid are trapped in a building. Both could die from the fire, and the firefighters have to make a choice because they will not be able to save both of them. Who are they going to save? Following the utilitarian theory, there would be no doubt. The archbishop should be saved since his contribution to the common good is more relevant than that of his maid [27].

Utilitarian ethics attributes more importance to the feeling of experiencing a choice about the possibility of pleasure or pain and the possibility of making a choice based on the preference of pleasure over pain [28].

The primacy of sensation over reason is directly related to the reduction of the category of person to that of being sentient. This leads to significant consequences for individual rights protection: the lack of protection for individuals who cannot perceive and process perceptions and decide independently, such as embryos, at least up to the stage of the formation of the nervous system, but also individuals in a vegetative state. The possibility of eliminating the lives of those individuals who have a greater sensation of pain and/or suffering and/or frustration in the community than pleasure and/or enjoyment and/or satisfaction. In this scenario, pursuing the greatest possible well-being for the greatest number of people may mean sacrificing the interests of a minority group of people and making the suppressive interventions of human life lawful with the only condition that suffering is avoided. Then, the practice of abortion would be justified even in an advanced stage of gestation, with the only reserve that it is painless for the fetus [29].

The possibility of measuring the quality of life not only in relation to the minimization of pain but also to economic costs is based precisely on the utilitarian conception of morality, i.e., on the possibility of measuring/evaluating happiness as the product of a relationship between costs and benefits, as well as by balancing non-homogeneous goods such as money costs and the value of human life.

In this way, therapy or health care can be refused, justifying its economic inconvenience based on an evaluation of the quality of life experienced by considering and comparing only biological and economic factors (health/productivity, therapy/availability of funds) [30]. Therefore, only what is useful is worthy of consideration, not the long-term consequences, and institutions dealing with solidarity and cooperation have no interest.

To this objection, the utilitarian doctrine argued that, over time, respect for individual freedom will, in any case, lead to the maximum of human happiness.

On this basis, the pragmatic–utilitarian model of medicine is developed, considered only as a quantitative reality, its transformation into pure business activity, and the mutation of therapeutic trust and the doctor–patient relationship into a contract between doctor and client [31].

The contractualism of the pragmatic–utilitarian model has been the object of criticism by those who believe it is a mistake to evaluate all goods as instruments for making a profit or as objects. On the contrary, it is necessary to recognize the existence of social goods and practices that find their correct evaluation only when higher norms are adopted [32].

In the utilitarian perspective, the cult of ‘useful goods’ relegates that which does not fit into the dictates of the market to the margins, while the illusion of optimism loses our ability to assess long-term consequences, leaving us adrift in a blind trust in Smith’s ‘invisible hand’; meanwhile, institutions that should promote solidarity and cooperation are ignored, leaving a vacuum in the social fabric. In the health field, this perspective risks transforming medicine into nothing more than a corporate activity led by managers, resulting in the mutation of the therapeutic trust and the doctor–patient relationship into a contract between doctor and client.

Universally valid ethical principles cannot be based on empirical, variable, and contingent considerations. Ethics has nothing to do with increasing happiness to the highest possible degree, nor with any other objective, but consists of respecting people as ends in themselves: making a man happy is quite different from making him good, and making him prudent or astute in the pursuit of his own advantage is quite different from making him virtuous.

It is essential to recognize the diversity of goods and social practices beyond their mere utility or monetary value. Every good has its own specific nature and intrinsic value that cannot be reduced solely to its economic functionality or its ability to generate profit. Instead of evaluating everything in terms of utility or monetary profit, we should adopt higher ethical standards that consider social, cultural, and environmental dimensions. This means recognizing the value of goods not only based on their ability to satisfy immediate material needs but also as contributions to human well-being, social cohesion, environmental conservation, and the realization of cultural values [33].

3. The Libertarian Theory and the Liberalist Theory

Libertarian theory considers freedom as the highest political goal and expresses the necessity and possibility of attributing all functions traditionally ruled by the state to the logic of the market, thus absolutizing individual rights [9].

Libertarianism rejects laws by which the state aims to prevent people from causing themselves harm, disapproves laws based on ethical principles based on certain conceptions of virtues or the prerogative of an ethic shared by the majority of the people and, therefore, coercive of individual freedoms, and excludes any form of redistribution of income or wealth [34].

Society just has to protect ownership rights and freedoms, allowing people to improve their conditions through their individual initiative. The liberal state has the task of protecting fundamental rights, guaranteeing the exercise of ownership, ensuring the functioning of the market, pursuing formal equality, and refraining from any intervention that could interfere with subjective freedoms [35].

In this context, justice is given the task of safeguarding the self-determination of the individual and protecting their freedom from coercion and restrictions [36]. According to libertarian theory, justice assumes a commutative form, having to limit itself to checking the procedural correctness of exchanges, transactions, and contracts between free private subjects.

It is the theory that is inspired by the philosophical–legal thought of Robert Nozick (1938–2002), saying that “only a minimal state, limited to enforcing contracts and protecting people against force, theft, and fraud, is justified. Any more extensive state violates people’s rights not to be forced to do certain things and is unjustified” [37].

With Anarchy, State, and Utopia, Nozick introduces the idea of a valid title (entitlement theory), according to which human beings own inalienable rights over their person and the products of their work. The distribution of a good is justified by history, and if the history that led to a certain distribution of the good is fair, then the distribution of the good will also be fair; such is the legitimacy of the possession of a good.

The case of basketball player Wilt Chamberlain is used by Nozick for illustrative purposes. Let us start with a fair situation in which everyone has a legitimate title to his own, according to any theory of social justice. A basketball player, Wilt Chamberlain, makes an agreement with his team: since he is a big attraction, the team decides to give him a prize of 25 cents for every ticket sold. The championship begins, and people are happy to pay for the ticket with the addition of an extra 25 cents for their star. At the end of the championship, Chamberlain is very rich, and every initial distribution model is skipped. How could we say that Chamberlain possesses his wealth unfairly? According to Nozick, the justice of the starting situation and the justice of the transfers, based on the voluntary nature of the exchanges, are sufficient conditions for the outcome to be defined as fair, whatever the distribution of resources that resulted from the sequence of exchanges. Having a different point of view otherwise would mean, for Nozick, to consider it right “to prohibit capitalist exchanges between consenting adults”.

Justice consists of defending the inviolable rights of individuals, and among these, ownership is the one that needs more protection. An individual has the right to obtain ownership when the historical process that led him to be the owner is historically justified according to three stages of legitimacy: it is legitimate the moment of the first purchase (acquisition justice); it is legitimate any form of exchange between different properties (transfer justice); and in cases of infringement of possession, it is legitimate to re-establish ownership (justice of reparation).

The founding argument of the libertarian doctrine is that no one is responsible for natural and social inequalities. The distribution of advantages/disadvantages by birth or the unpredictable changes due to society are not unfair but only unfortunate. Therefore, society is not called to compensate for differences or to repair damage, as there is no direct obligation to help the needy and compensate the weak.

From the libertarian perspective, “giving each one his own” takes on the meaning of attributing to each free individual resources and goods according to merits and abilities, the contribution he provides to society and free initiative. The state has minimal functions with respect to the maximum spaces of expression of the free market.

According to Nozick, the possibility that the goods produced by the deserving and capable can be used to improve the well-being of the disadvantaged is incompatible with the recognition of the inviolable right that individuals have to self-ownership [38,39].

In the context of liberal-inspired ethical–political reflection, a reference cannot help but be made to the egalitarianism of John Rawls (1921–2002), who, although starting as Nozick from a purely theoretical original model, achieves radically different outcomes from the latter [40].

In Rawls’ theory, the principles of justice are inferred by a hypothetical contractual procedure. This process starts from an original position, in which individuals are placed under a thick “veil of ignorance” in the sense that they know nothing about their sex, age, nationality, social status, personal abilities, material possessions, etc. The parties concerned, conceived as essentially rational and in a position of total freedom and equality, choose together the principles that must assign fundamental rights and duties and determine the division of social benefits [41].

These principles are basically two: the first, which takes precedence over the second, guarantees to all citizens fundamental freedoms; the second, that all the main social and economic goods must be distributed equally unless an unequal distribution of one or more of these goods benefits those who are most disadvantaged (principle of difference). These principles have value for the fundamental social institutions that make up the “basic structure of society”, which include the constitution, the legally recognized forms of ownership, the structure of the economy, and sometimes the family. The wider the sphere of lawful behavior that he enjoys, the freer the citizen, but he is also free because he obeys laws that he himself has given through his representatives [42].

The basic structures of society are responsible for maximizing distributive justice in order to guarantee each individual the highest and equal set of fundamental freedoms and, at the same time, to ensure the support of situations of weakness and fragility. Individual freedom is subordinate to the common good; society must take charge and correct natural inequalities (“natural lottery”) and social inequalities (“social lottery”) in a continuous effort to compensate for the differences.

The consequences in the biomedical field of the libertarian perspective are related to the starting reference, that is, the non-cognitive assumption that morality can be based only on the autonomous choice of the subject and not on facts or objective and transcendent values [43].

The argument that people are free to do whatever they want, as long as they do not harm others, is the basis of a strong principle of libertarian autonomy.

In the case of disputes based on divergent moral conceptions, libertarian bioethics allows the possibility of forms of negotiation, formal and extrinsic, based on permission and informed consent. From this point of view, the principle of self-determination, with regard to which the principle of permit/consent is the fundamental prerequisite, plays a central role in the definition of the person given by the libertarian perspective.

In fact, a person “in the strict sense” or “in the own sense” is only the moral agent, that is, the one who is able to enter into a contract with express consent and a permit to participate actively in moral life as a self-conscious subject endowed with rational skills and possessing the ability to determine himself. The person “in the strict sense” must be guaranteed adequate protection and the possibility of manifesting his or her contractual capacity. On the contrary, people “in a broad sense” or “in a social sense” are human beings who are not able to express consent because I do not express it yet (for example, embryos, fetuses, newborns, minors, etc.) because they can no longer express it (for example, a patient in a coma), or because they have never expressed it and will never be able to express it in relation to the pathology, probably congenital, from which they are affected [44].

People “in the social sense”, unable to give their consent and therefore to self-determine themselves, become the object of the feelings of the benevolence of moral agents, who may decide to protect them as well as to sacrifice them in view of the realization of other goods. Within this vision, the man has the right to life, but the others do not have the duty to defend and support that life; indeed, moral conduct is that which deals with the self, while the interest of others is an immoral attitude unless one cares about others for the self. Autonomy is the possibility of thinking about oneself and does not appear as a social or collective value or a moral principle concerning the relationship with others [45].

Libertarian theory has been criticized because the essential reference to the principle of self-determination denies, in fact, the starting point, which is the non-cognitive assumption. Moreover, in the event of disputes based on divergent moral conceptions and the need to propose a social standard law, the search for forms of negotiation based on permission/consent could collide with the will of the one who, precisely in respect of the principle of autonomy, did not accept a self-limitation of his will. Again, further critical issues relate to the way in which ethical liberalism envisages adequate protection exclusively against people able to manifest their contractual capacity, legitimizing, in fact, the law of the strongest and the overpowering towards human beings not able to give their consent and therefore to self-determine [46].

4. Natural Justice Theory

Natural justice is the doctrine that affirms the existence of a natural right, understood as a different regulatory system antecedent to and superior to any law established by the state or any other political and legal system (positive law) [47].

Natural justice is a right not written in laws drawn up by men, independent of the will of the legislator, and not coinciding with the laws promulgated by the legislator. It is, therefore, antithetical to any form of legal positivism, so that the law is an expression of the will of the state or, more generally, of the power constituted.

In the meaning attributed to the term “nature”, we can find all the different variants of natural justice: identification of natural justice with divine wisdom, understandable to human reason, or as an expression of the divine will; correspondence between natural justice and the biological laws that govern nature; natural justice as a rational order that can be known and explicitly formulated. Whatever its theorization (theological, biological–naturalistic, or rationalistic), natural justice is in itself valid, addressed to all those who share a natural origin, regardless of any historical or cultural condition, and is knowable through human reason [48].

Unlike utilitarian doctrine based on the assessment of the consequences of an action, natural justice disregards the consequences and sustains the substantial value of the name and adherence to it as it is felt inwardly as just, regardless of whether its transgression is punished. For these reasons, natural justice is superior and must always prevail over the positive law developed by any political system. Nevertheless, with regard to positive law, natural justice can enter into dialogue as an additional dimension that constitutes or can constitute a point of reference for value.

In Aristotle’s thought (384 bc.C. or 383 bc.C.–322 bc.C.), a distinction is made between right by nature, that is, right as it is based on nature, and legal right, that is, right as it is prescribed by the legal norm. However, natural justice, although universal and lasting, is not immutable as it is not abstract but contextualized in concrete historical and socio-cultural reality and, therefore, susceptible to variations according to the behavior of men [49].

Natural justice is derived from the very nature of things and is based on universal and immutable principles that are valid in all circumstances. This form of justice refers to concepts such as fairness, honesty, and reciprocity, which are intrinsically just and do not depend on human laws or conventions. For example, natural justice could imply respect for people’s fundamental rights or recognition of human dignity.

Legal justice, on the contrary, is determined by the laws and norms established by human society. This form of justice is relative and may vary from one society to another or from one historical period to another. Laws and legal institutions may reflect or deviate from natural justice, depending on the circumstances and opinions prevailing in society [50,51]. Distinguishing what is right by nature from what is right because prescribed by the legal norm, the moral freedom of man is identified with the ability to act by choosing what the intellect indicates to him as good, therefore chosen as well (right by nature) and not as indicated by some external law (legal right). In this way, autonomy does not represent a form of unconditional freedom, limited exclusively by not causing harm to others, but coincides with doing the right thing, as the intellect knows the good and the will chooses the good.

In the Theological Sum, Thomas Aquinas (1225–1274) distinguishes four types of laws: the “divine law” revealed in the Holy Scriptures and knowable by faith; the “eternal law” by which God has ordained the world; the “natural justice”, which is “the participation of eternal law in the rational creature”; and the “human law”, by which civil power regulates the existence of men on Earth in compliance with natural justice.

Divine law is the law revealed by God in the Holy Scriptures and which is known through faith. It includes the religious and moral commandments found in the Bible and other sources of divine revelation. The divine law guides mankind towards salvation and the highest good. The eternal law is the law by which God orders and governs the created world. It is the law of divine providence that governs the universe in a harmonious and consistent manner. The eternal law is the basis from which all other laws descend and constitutes the order and direction of the universe. Natural justice is the participation of the eternal law in rational human nature. It is a law inherent in human nature itself, manifested through reason. Natural justice is universal, immutable, and obligatory for all human beings, regardless of their culture or religion. It includes fundamental moral principles such as respect for life, truth, and property. Finally, human law is the law created by human beings to regulate coexistence in civil society. Human law is supposed to conform to and derive from natural justice. However, according to Thomas Aquinas, human law can be unjust if it deviates from natural justice, in which case it is not morally binding [52].

This distinction between the four types of laws reflects Thomas Aquinas’ thinking on the relationship between divine law, natural justice, and human law and their interaction in human life and society.

Thomas Aquinas regards divine law as the ultimate source of moral and spiritual authority by which individuals are guided toward salvation and the highest good. Therefore, divine law provides an ethical and moral framework that influences human conscience and behavior. Natural justice is intrinsically linked to human nature itself and can be known through reason. It represents fundamental moral principles that are universal, immutable, and mandatory for all human beings, regardless of their religion or culture. Natural justice provides a rational foundation for morality and justice, guiding human actions towards the common good and virtue. Human law can only be just and morally binding if it respects the principles of natural justice. If a human law conflicts with natural justice, then it is not morally legitimate and is not binding on the human conscience [52,53].

According to Thomas Aquinas, thanks to an innate disposition, the “synod”, a human being possesses the “habitual knowledge” of the first principles of natural justice. The first and fundamental precept of practical reason is “good must be done and searched for, and evil must be avoided”, which can never be erased from human consciousness. Starting from this precept and following its natural inclinations, any rational being can deduce the fundamental moral rules that guide him in social life and perfect them. This regulatory work must, however, be supplemented by the human legislator, who has two fundamental tasks: induce by force those who are not inclined to virtue to refrain from doing bad; and derive from natural justice the appropriate rules for the particular cases [54].

The concept of autonomy in Thomas Aquinas takes root in the idea of man as a creature of God who receives his being from God through transcendental participation, which allows him to exist and live according to his nature by unfolding his personal characteristics throughout history. The intellect knows the truth, including moral truth; the will chooses; the passions facilitate or oppose the choice of good and, therefore, it is necessary to establish political domination over them in order to put them at the service of personal freedom; if the will chooses the good indicated by the intellect, man lives independently; if it chooses something different for an external reason (fear, pusillanimity, addiction, etc.) or chooses to do an apparent good, contrary to the true good, for an external reason, then man does not act independently [55].

Immanuel Kant (1724–1804) has a significantly different perspective on classical natural justice in his approach to morality and politics, while some key ideas of his philosophy can be interpreted in relation to classical natural justice, especially with regard to the idea of objective moral principles and the importance of respect for human dignity.

Immanuel Kant believes that rights and duties are not based on the idea that we own ourselves, nor on the affirmation that our life and freedom are gifts of God, but on the principle that we are rational beings deserving dignity and respect. Universally valid ethical principles (human rights) cannot be based on empirical, variable, and contingent considerations. Ethics has nothing to do with increasing happiness to the highest possible degree or with any other goal but consists in respecting people as they are in themselves [56]. The supreme principle of ethics can be conceived through the exercise of “pure practical reason”. To act independently is to act according to a law that I have told myself, not on the basis of the terms prescribed by nature or social convention. This rule is the pure practical reason that legislates “a priori”, regardless of any empirical objective. If it is the reason that determines my will, then the will becomes the power to choose independently with respect to the dictates of nature or inclination (heteronomy) [57].

How does reason command will? To answer this question, Kant distinguishes the hypothetical imperative from the categorical imperative, that is, the commands of reason that direct the will to act objectively, counteracting the dominance of inclinations and sensitive impulses. The hypothetical imperative is a command of reason that applies conditionally, which means the command will be carried out provided that an end is to be achieved. The means are good as they are objectively effective in view of the ends, which, however, not being determined by reason, can be morally good, indifferent, or bad. The categorical imperative is the only a priori principle of reason that commands the will to be good in itself, that is, to act regardless of any inclination or any particular end, assuming a universal point of view.

In the first version, Kant calls the formula of the universal law: “Act only on that maxim whereby you can at the same time will that it should become a universal law”. The second formulation of the categorical imperative is: “Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end”.

The concept of autonomy in Kant is the ability to choose maxims that are in rational agreement with the categorical personalist imperative that lays the foundation of morality and true freedom, respect for man, himself, and others, as an end and without reducing it to a simple means [58]. Although the concept of natural justice has been variedly defined, in the context of iusnaturalistic theory, “giving everyone his own” takes on the value of recognizing to every human being what belongs to him ontologically in relation to the intrinsic human nature, that is, life as an essential value and the common good as a cohesive value.

Hence the right/duty not to violate human life and to act with a view to the common good. Every man must be accorded the same rights and duties as any other, avoiding arbitrary privileges and seeking to restore social balance.

In contrast to natural justice, Kant bases morality on autonomous reason and the categorical imperative. The law derives from reason and is intended to realize justice, and the state has a limited role that should be limited to ensuring security and justice. In accordance with classical natural justice, Kant agrees with the existence of objective moral principles that do not depend on individual opinions or social conventions, recognizes the importance of respect for human dignity and the inalienable rights that derive from it, and admits the existence of natural justice and its compatibility with his moral theory [59,60,61].

In bioethics, personalism is the theory that proposes an objective and existential status of the person and has justified the thesis of the intrinsic dignity of the person recognized in every human being, regardless of the phase of psycho-physical development, the condition of existence, the skills he possesses, or the abilities he is able to exhibit. Ontological personalism emphasizes that at the foundation of subjectivity, there is an existence and essence constituted in body–spirit unity.

The human being is a person because he is the only one who is capable of self-determination, of discovering the meaning of things, and of giving meaning to his expressions and his conscious language. If Christian Revelation spreads the horizons of the personalistic vision because every man is the image of God, son of God, and brother of Christ, even from the secular point of view, the person is always the end and never the means.

According to personalistic ethics, the ethical value of an act must be considered from the subjective point of view of intentionality, but it must also be considered in terms of its objective content and consequences. The natural moral law that pushes every conscience to do good and to avoid evil is realized in respect for the person in all the fullness of his values, in his essence, and in his ontological dignity [62].

The ontological theory of the person highlights the supremacy of nature over function, asserting that being a person is an intrinsic characteristic of every human organism at every stage of development, regardless of external manifestations. Regarding issues at the beginning of human life, personalism promotes the dignity and intrinsic worth of the human being from the moment of conception. Accordingly, the human embryo is considered a human person with full dignity and rights since it represents the first stage in the development of human life. Therefore, the embryo is entitled to the protection and respect morally due to every person.

In promoting the protection of the embryo as a human being, personalism has found a solid basis in scientific evidence. Indeed, the conceived system is not a mere sum of the two subsystems but a combined system. Following the loss of two subsystems of their individuation and autonomy, the unicellular embryo begins to operate as a new unit, intrinsically determined to achieve its specific terminal form. The biological center or coordinating structure of this new unit is the new genome with which the unicellular embryo is equipped. It is this genome that gives the embryo enormous morphogenetic potential, which the embryo will gradually implement throughout its development through continuous interaction with both its cellular and extracellular environment, from which it receives signals and materials. This new program is neither inert nor carried out by maternal physiological organs but is a new project that builds itself and is itself the main actor: from the formation of the blastomeres by replication and duplication up to the formation of the blastocyst and nidation, the ‘pilot or architect’ of the construction is the genetic information intrinsic to the new reality. Therefore, three properties can be recognized in the human embryo: coordination, continuity, and gradualness. Coordination means that from the zygote onwards, there is a succession of molecular and cellular activities under the guidance of the information contained in the genome and under the control of signals originating from interactions that multiply incessantly at every level within the embryo itself and between it and its environment. Precisely from this guidance and control derives the coordinated expression of thousands of structural genes that implies and confers a strict unity to the organism that develops in space over time; continuity means that the new ‘life cycle’ that begins at fertilization proceeds—if the required conditions are met—without interruption. The individual events (cell replication, cell determination, tissue differentiation, and organ formation) obviously appear successively. However, the process itself of organ formation is continuous. It is always the same individual that is acquiring its final form. If this process were to be interrupted at any time, there would be the death of the individual. Finally, graduality shows that it is a law intrinsic to the formation process of a multicellular organism that acquires its terminal form through the transition from simpler to increasingly complex forms. This law of the gradualness of the acquisition of the terminal form implies that the embryo, from the cell state onward, permanently maintains its own identity and individuality throughout the process. In conclusion, since biological and uninterrupted development takes place without intrinsic qualitative mutation, without the need for further causative intervention, it must be said that the new entity constitutes a new human individual that, from the instant of conception, continues its cycle, or, rather, its life curve. The embryo’s self-genesis occurs in such a way that the next phase does not eliminate the previous one but absorbs and develops it according to an individualized and controlled biological law [63,64].

In matters at the end of human life, personalism promotes respect for human dignity until the end of life. This implies that even in the terminal stages of illness, the person retains his or her dignity and inherent worth, and that medical and treatment decisions reflect this respect. In the context of personalism, acceptance of natural death as an integral part of the human life cycle is promoted. This means preferring and promoting palliative care and pain relief to ensure a comfortable and dignified death, as opposed to euthanasia and assisted suicide, which are practices that violate human dignity and the right to life.

To ensure an ethical approach to medicine, it is essential to adopt a concept of autonomy that reflects the truth about the human being as a rational, dependent, and naturally social being. To start with different anthropological assumptions is to deny the solidaristic nature of medicine, turning it into a utilitarian or individualistic perspective. When dealing with sensitive issues such as euthanasia, it is crucial to consider and defend both the autonomy of the patient and that of the physician, avoiding reducing the latter to a mere service provider. True respect for autonomy derives from a scientifically rigorous professional practice that respects the limits of medical science. Medical intervention that goes beyond safeguarding health and life could constitute a new form of medical paternalism. The wish to die, approached as a clinical situation, requires special attention. The physician must seek valid solutions to try to eliminate the reasons that led to the request for euthanasia, making effective prevention essential. Medicine applied to the chronically ill in the terminal and agonizing phase, like ‘high-tech’ curative medicine, requires professional excellence, the habit of doing one’s job well, and the exercise of virtue.

Finally, when dealing with issues related to the allocation of economic resources in the health sector, there is a risk that certain segments of the population will be discriminated against in treatment, regarded as a burden on society and in violation of their individual rights. This is particularly evident when such decisions sacrifice individual well-being for the benefit of collective well-being. According to a bioethical approach based on natural law recognition, even in cases of exceptional imbalance between the real clinical needs of the population and the actual availability of intensive resources, criteria of access to treatment inspired by principles of distributive justice, e.g., based only on age, do not appear ethically permissible since priority should rather be given to persons whose lives are in immediate danger. On the contrary, accepting such an approach to medical treatment would clearly conflict with both the right to health protection and the ethical principle that requires doctors to protect human life without discrimination, regardless of the institutional or social circumstances in which they operate. In the hypothetical case of having to decide who benefits first from the only available treatment, it would be appropriate to carefully examine all possible solutions to increase the availability of therapeutic resources. A proportionate approach, based on a multidisciplinary and comprehensive case-specific assessment, could then be considered, avoiding reference to abstract and predefined criteria.

5. Conclusions

We have observed that it is not easy to give a single meaning to the term justice. It can be matched with multiple levels of analysis and different forms of justice. We have also shown that the different forms of justice analyzed correspond to different organizations of society, different ways of understanding relationships between individuals, and also different conceptions of the law. But how can an act belonging to the law be considered fair? An act is right in a legal sense when it is in accordance with a law, but it is right in a moral sense when it complies with a law that is morally fair.

However, when we begin to wonder what is due to people and why, a central problem arises: the relationship between law and morals [65]. It is no coincidence that the contrast between Antigone and Creonte dramatically expresses the contrast between natural justice and positive law, which, until today, represents an element of substantial challenge [66]. The strength of Antigone’s reasoning is to argue that human law cannot disrespect a divine law. In Antigone’s reasoning, we can see the roots of the philosophical–legal vision of natural justice, for which there is a necessary connection between law and morality: only the morally fair right is right; the (intolerably) unfair right is not right [67].

This does not mean that we want an ethical state to be established, but rather that the law should guarantee the values necessary and indispensable to guaranteeing the common good. In fact, in the neo-iusnaturalist vision, the right must at least coincide with the “minimum morality”; otherwise, even if validly placed, it is not justified in the foundation and in its own sense, although it can be formally and validly prescribed or even observed. In this regard, the philosopher John Finnis expressly supports a presumption of mandatory positive law.

On the contrary, legal positivism has stated that the law would in no way depend on the truth but on an act of regulatory will on the part of those who govern by relegating the space granted to morality to the extent to which the law is modeled on the principles universally accepted and enshrined in international declarations of human rights or on individuals [68].

However, the historical experience of totalitarianism has shown that the law has indispensable contents and values that justify its mandatory. A right that, on the contrary, was limited to reflecting the contingent opinions of the majority and social practice or to following up on the arbitrary decisions of a self-referential power could lead to the formulation of rules against human dignity and the common good [69]. How, then, can an act belonging to the law be considered fair? To the extent that civil law interprets human needs in society, it defends the intrinsic values of legality, such as the right to life and the protection of the common good. Therefore, justice, with all its facets of meaning, should guarantee the citizen of a nation or community the protection of life and health, personal, civil, political, economic, social, and religious rights, as well as non-discrimination, inclusion, human dignity, access to care, and personal data protection. In particular, to obtain justice within medical practice, practitioners should focus on human interests and credible issues that prioritize specific principles within their specific practice. Aspects may be taken for granted, but unfortunately, they are not always respected [70].

Bioethical personalism is joined by the ethics of a job well done, which can be proposed as a theoretical and applicative framework for addressing clinical ethics issues. The ethics of a job well done is the idea that the first moral duty of every professional is that of professional excellence. It should, therefore, be characterized (a) by an interdisciplinary type of co-design, and this in relation to the theory of complexity and systemic thinking; (b) by a realist knowledge that always starts from experience and leads one to seek scientific truth as the basis of one’s choices; (c) by a management model useful for a motivational involvement of all the components involved; (d) by the awareness that every medical act is a free and responsible Human Act with an intrinsic ethical value; (e) by the recovery of the political dimension of a job well done, i.e., of professional excellence as an instrument of service to society and to the common good; (f) by the capacity for radical procedural innovation; and (g) by placing the person at the center of the work, improving effectiveness and efficiency and ensuring sustainability [71].

This manuscript is focused on the different theories of justice and the perspectives each has on the biomedical field. We hope that this work can become a call to action to explore bio-law issues for all those who are usually engaged in making decisions in the challenging field of medical ethics.