Читать книгу Justice - Zafar Iqbal - Страница 9
ОглавлениеIslamic and Western Perspectives
WHAT IS JUSTICE?
The idea that a society should organize itself on principles of justice and that government ought to play a primary role in securing such justice is well known in history. In the fifth century CE, St. Augustine remarked: ‘Remota justitia, quid sint regna nisi magna latrocinia’ (Removed from justice, what be rulers if not large-scale robbers?). But, what is justice? According to Miller (1991, p.260), the best general definition comes from the Byzantine emperor, Justinian (482-565 CE): justice is the constant and perpetual will to render to everyone his due. One aspect of justice, called distributive justice, attempts to elaborate ‘what it means to give people what is due to them’ by identifying a morally correct principle that connects the characteristics of people with their rights and obligations. Some principles that can serve this purpose are listed in Table 1.1 below.
Table 1.1: Alternative principles of justice
| • To each according to merit | • To each according to need |
| • To each according to individual effort | • To each according to societal contribution |
| • To each according to rights | • To each an equal share |
Based on Beauchamp and Bowie (2001, p.642).
A theory of justice might accept only one, more, or all of these principles as legitimate (Beauchamp and Bowie, 2001). Sen (1992, pp.73-75) refers the characteristics across which a theory of justice establishes – explicitly or implicitly – a ‘basal equality’ amongst human beings as the substantive content or the informational basis of a theory of justice. But as he argues, focus on this basis alone is insufficient to comprehend the demands of justice. What matters also is the information that is excluded from a view of justice and which does not have a direct bearing on assessing alternative social arrangements and policies. It is this perspective that we shall keep in mind while examining different theories of justice advanced since the ancient Greeks.
PRE-MODERN THOUGHT
Greek thought
Plato (427-347 BC) and Aristotle (384-322 BC) were the first systematic political theorists of the Greek era. Plato in his Republic, the prototype of all utopias, considers that most people do not possess the intellect to conduct their affairs properly and need to be told what is good for them. Nevertheless, human beings are essentially social beings who find a natural fulfillment in political association. These premises lead Plato to conceive of an absolutist state that is led by a philosopher king or knowledgeable elite whose impartiality and commitment to Plato’s ideals is secured through grooming, renunciation of family life and affections, as well as, abdication of private property. Such an elite would strive to actualize the moral perfection of citizens by the development of private and public virtue. The concept of individual freedom, as we are aware of it today, does not find its way into Plato’s model of societal organization and if that contradicts with human nature, Plato is deliberately indifferent to it (Bowle, 1961, pp.40-42; Harmon, 1964, pp.29-52).
To Aristotle, Plato’s student, the search begins with the concept of ‘good’. Good is the goal, purpose, or aim to which something or somebody moves. And insofar as human beings are concerned, their good relates to their nature. Two basic aspects of the latter are humankind’s political nature and their ability to speak and reason (practical rationality). The former moves them to the formation of families, clans, and ultimately, political communities. The goal is to provide necessary economic, social, and legal conditions to pursue a good life in two directions: downwards to obtain the necessities of life and upwards to achieve self-realization. Rationality, the second aspect of human nature, is comprised of different stages: thus, there is a basic sensation of pain and pleasure (raw instincts or passions) shared with animals that guides human action. And then there is a unique ability to look beyond the here and now and determine at one level what is useful and harmful and at a higher plane, what is good and bad, and just and unjust for the interests of the community as a whole. It is the latter ability that corresponds with the essential nature or telos of humankind and equates with moral rationality (Hoffe, 1995).
Moral rationality, thus understood, provides a link back to the political nature of humankind and the demand that they realize their telos by acting in accordance with justice, whereas justice is that state of character that disposes one to act fairly in dealings with other people. Seen from this angle, justice also embodies virtue, rather the whole of virtue since most moral virtues, in their essence, are social and political attitudes. However, there is a connotation in which justice may also be considered as a part of virtue. In this context it is to be considered as equality apart from any other considerations that matter. To elaborate:
since the equal is a mean, the just will be a sort of mean too. … (1) as a mean it implies two extremes, the more and the less, (2) as equal it implies two equal shares, and (3) as just it implies certain persons for whom it is just. Consequently, justice involves at least four terms, two persons for whom it is just and two shares which are just. And there will be the same equality between the shares as between the persons, that is, the ratio between the shares will be the same as the ratio between the persons. If the persons are not equal, they will not have equal shares; it is when equals possess or are assigned unequal shares, or persons who are not equal are given equal shares, that quarrels and complaints arise. (The Nature of Justice, 1992, p.211)
Justice so equated with ‘equality’ is then divided further into three branches: distributive justice is concerned with the distribution of honour or money or the other divisible assets of the community (social benefits and burdens) among its members; justice in exchange stands for equality between whatever goods are exchanged and corrective justice means establishing equality between punishment and the crime.
Having clarified the scope of justice, Aristotle then integrates it with the role of the legislature and law making leading ultimately to the very important conclusion that the ruler and the elite are also subordinated to such impersonal rules/constitutions since these rules are oriented towards universal welfare. However, although the elite are subjected to such rules, a hierarchical social structure is envisaged. Citizenship is reserved only for those who are economically self-sufficient. Slaves, craftsmen, and traders are excluded. There is little room for pursuing commerce and wealth for its own sake; and trading and usury are considered as posing a threat to a person’s moral well being. The government is the highest form of community employed in the struggle to attain the highest form of moral good. Thus individuals are subordinated to the state and the state to an ethical purpose (Bowle, 1961, pp.40-42; Harmon, 1964, pp.29-52; Muller, 1993, p.41).
For Aristotle himself and a small class of leisurely elite – who can afford that degree of disengagement from the necessities of life – there is a ‘good’ even superior to exercizing virtue in a political community. And the way to discover that good is to reflect on what is best in human beings. As we saw above, what is best in human beings is reason and one characteristic of reason is to contemplate the unchanging and timeless truths that are equated with the divine in Greek thought. It is such contemplation done as an end in itself rather than as a means to something else that constitutes the highest form of human good (MacIntyre, 1966, pp.82-3). Taken to its logical conclusion, this attitude, carries within it, the seeds of asceticism and renunciation providing reason for the elite to withdraw from active politics and pave the way for something larger than ‘polis’, an absolutist state, the then state of Macedon. As Kelson (MacIntyre, 1966) puts it:
the glorification of the contemplative life, which has renounced all activity and more especially all political activity, has at all times constituted a typical element of the political morality set up by the ideologies of absolute monarchy. For the essential tendency of this form of state consists in excluding the subjects from all share in public affairs. (p.99)
The Christian view
The pursuit of the spiritual and renunciation of the material reached its zenith in the teachings of Jesus Christ (pbuh). According to one view, he had little interest in politics and no qualms with the public order established by the Roman authorities. Instead, he was interested in saving souls, this by providing a corrective for Pharisaic morality. And, that too, for a short interim period, until God’s Messianic kingdom arrived. Under these circumstances, as MacIntyre (1966) explains:
the only form of prudence is to look to the kingdom. To take thought of for the morrow, to lay up treasure on earth, not to sell all you have and give to the poor – these are essentially imprudent policies. You will lose your soul if you pursue such policies, precisely because the world you gain is not going to last. … the crucial fact is that the Messianic kingdom did not come, and … therefore the church ever since has been preaching an ethics which could not find application in a world where history had not come to an end. … It is therefore not surprising that insofar as Christianity has propounded moral beliefs and elaborated moral concepts for ordinary human life, it has been content to accept conceptual frameworks from elsewhere. (p.116)
This mindset became evident after the Roman emperor, Constantine, embraced Christianity in the early fourth century. In the event, the passive relationship between the Church and the State, that to some was implied in the early teachings of Jesus Christ (pbuh) was set aside. Thus, St. Augustine (355-430 CE) wrote in The City of God that the State was a divinely ordained remedial authority over which men had no control. And as regards its aims, it was to purge men of the misery of unregulated life: greedy egotism, selfishness and slavery of lust that was the result of man being born sinful. In fact, the Church was conceived as a partner to the State in the mission of cleansing men. The theory, expressed more succinctly by Pope Gelasius I in the late fifth century, became known as the ‘doctrine of the two swords’ (Harmon, 1964, pp.98-131; Kramnick, 1969, pp.83-84; Bowle, 1961, p.135).
This rather hostile view of the world influenced Western thought for some eight centuries until St. Thomas Aquinas (1225-1274 CE), impressed by Aristotelian thought translated and expounded by Jewish and Muslim writers, presented the idea of a fundamental harmony between human and religious values, between the natural and the revealed law, and between reason and faith. Thus authority and socio-political institutions were necessitated not necessarily because of man’s inherent sinfulness, which nevertheless remained a core belief, but instead because of the positive value they offered in arranging human affairs in accordance with the requirements of human sociable nature. The Christian concept of humankind and society, however similar in form to the Greek, nevertheless, had important differences in terms of content. Thus the list of virtues is taken from the teachings of Jesus Christ (pbuh) rather than from Aristotle (Harmon, 1964, pp.123-131; MacIntyre, 1966).
In general, until the Middle Ages, Christian thought primarily focused on presenting life as the preparatory ground for salvation. The Church had the sole and infallible authority to interpret the demands of such salvation. And these demands usually called for caring, loving, and sharing with co-religionists. It was believed that each person had a divinely ordained place in life to which he exhibited loyalty by conducting a specific (mostly hereditary) function and becoming a member of the relevant organized (occupational) group.1 The objective was to join a moral struggle for securing the necessities of life, i.e. food, clothing and shelter. The profit motive and pursuit of wealth for its own sake were considered as sinful. As a result, trade and commerce were seen as incompatible with the demands of a virtuous life, and usury and gambling were strictly prohibited. In brief, individual life was subordinated to both the demands of salvation and the Church sponsored view of societal needs (Fusfeld, 1999, pp.7-27).
THE MODERN QUEST FOR JUSTICE
In general, the roots of the modern Western quest for discovering reason-based principles of justice go back to the end of the Middle Ages. That period saw the rise of the modern nation state through intense conflict: (a) between rival views on organizing society, (b) the competing jurisdictional claims of the Church, feudal barons, and medieval parliaments against monarchs, and (c) the external struggle for conquest under the influence of mercantilism. Under the circumstances, there was a clear arbitrariness in distributing social dividends and burdens that prompted social philosophers to ask: how can an orderly and harmonious social system emerge from the pursuit of competing self interests? How can social organization be redeemed from warring concepts of common good? And, how can individuals be protected against arbitrary state action and confiscation? The erstwhile Greek and Christian traditions, albeit helpful, did not provide satisfactory answers. In any case, splits in opinion among the clergy challenged whatever commitment remained to that vision. Under these circumstances, two influences are said to have played a key role in forging a new ethics of equality and liberalism. First, the Islamic and, second, the Roman tradition. As regards the former, Wells (1961) writes:
And a century or so in advance of the West, there grew up in the Moslem world at a number of centres, at Basra, at Kufa, at Baghdad and Cairo, and at Cordoba, out of what were at first religious schools dependent upon mosques, a series of great universities. The light of these universities shone far beyond the Moslem world, and drew students to them from east and west. At Cordoba in particular there were great numbers of Christian students, and the influence of Arab philosophy coming by way of Spain upon the universities of Paris, Oxford, and North Italy, and upon Western European thought generally, was very considerable indeed. (p.626)
Robinson (1996) also confirms:
recent scholarship has come to find the roots of medieval scholasticism and the development of universities in Muslim influence. It has even gone so far as to find the origins of Renaissance humanism in that of classical Islam. ‘I have read, reverend fathers’, Pico della Mirandola begins his oration The Dignity of Man in the late fifteenth century, ‘that when Abdala the Saracen was asked what he regarded as most to be wondered at on the world stage … he answered that there was nothing to be seen more wonderful than man.’ (p.xxi)
Insofar as Roman influence is concerned, this came through their civil code. The Roman code, as presented in a sixth-century document, Corpus iurus civilis compiled by Justinian, was primarily concerned with providing legal protection to commercial activity and private property without entertaining any given view of righteousness or virtue. The state, in this concept, was a privileged legal or constitutional order with sovereign jurisdiction over a geographical territory. These insights inspired the tradition of natural jurisprudence at the hands of Hugo Grotius (1583-1645), Thomas Hobbes (1588-1679), Samuel von Pufendorf (1632-1694), Baruch Spinoza (1632-77), and John Locke (1632-1704).2 It was argued that individuals were to be considered as equal and ends in themselves rather than as means to the happiness of others. This was possible only if the state allowed the pursuit of pluralistic concepts of good in a society, and placed minimal demand on individuals by respecting their rights and restricting the domain of their political obligations to what could be deduced from noncontroversial rational premises, for example, self-preservation.
During the seventeenth and eighteenth centuries, these arguments turned the tide gradually in favour of viewing social order in terms of achieving the goals of freedom and opulence. Free market exchange began to be seen as preserving freedom and/or aligning these goals. As Kolm (1996, p.59) says, this tradition, called in its fully evolved form Libertarianism/Liberalism/Full-process freedom is the historically original, founding, and central theory of modernity.
Libertarianism
Libertarianism stands for the type of social arrangements that guarantee each person the greatest amount of liberty commensurate with the same liberty for all (Sterba, 1992). But what does liberty stand for? Why has it to be the core value of a social order? What are the demands of liberty? How do these demands translate in terms of the role of government in a society? These are some of the questions that we examine below.
Liberty is important, it is said, because it constitutes the essence of our being. It reflects the agency aspect of a person’s being in that it refers to what a person is free to do and achieve in terms of forming aims, objectives, allegiances, commitments, and plans of action in accordance with some overall concept of good that he chooses to value. It demonstrated that a person endowed with will can take actions that are caused by that will and influence the world. The more an action is caused in accordance with the will of a person, the freer that action is (Sen, 1985; Kolm, 1996, p.38).
Sen (1993) elaborates upon at least two aspects of the liberty to act. First, there is the opportunity aspect that refers to the real opportunities (means) that one has in order to achieve what one has reason to value. Second, there is a process aspect that refers to the freedom of aims and acts. It is this process aspect that has been the major concern of libertarians and that, in turn, consists of two elements: the autonomy of individual choices and immunity from interference by others. The crucial issue in case of autonomy is whether choices are being made by the person concerned rather than by other individuals and institutions on his behalf. For immunity, the focus usually is on ‘negative freedoms’, i.e. the absence of obstacles external to a person – coercion and legal prohibitions – that prevent wilful action.
Traditionally, libertarians have stressed the importance of negative freedoms by emphasizing that a person has inalienable rights to life, liberty, health, property (and this includes protection against theft, fraud, and breach of contract), the right to defend against violations of these rights, and the right to punish transgressors against these rights (Haslett, 1994, p.55). The economic implications of these rights are worthy of note. First, the distributional consequences of economic arrangements depend on the existing allocation of property rights. Thus the starting point for resource distribution has to be justified in some normative sense. Second, procedural rules for further entitlement have to be clarified in order to lower transaction costs, encourage investment, and mitigate socially wasteful effort. Third, the pursuit of certain economic goals has to be ruled out (Hausman and McPherson, 1996, pp.126-127). These requirements are catered for by rules of entitlement.
