Tag: Anti-Enlightenment

Justice or nonsense?

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Why should justice be the foundation of a society, and why not something else, say, honour or valour or wealth? What do we mean when we say justice? Do you mean the same thing as me? Dating myself to be sure, but would a Klingon from the Star Trek universe share your definition? So what is justice anyway?

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‘Justice is the constant and perpetual will to render to every man his due. Jurisprudence is the knowledge of divine and human affairs and knowledge of what is just and what is unjust’, or so writes Justinian in Institutes 1.1 in 533 CE.

“Iustitia est constans et perpetua voluntas ius suum cuique tribuens.  Iuris prudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia.”

This is Justinian’s answer to the question: What is justice? In his Philosophy and Real Politics, Geuss relates that ‘justice is the constant and unflagging will to render to each person what is due to him’ (or perhaps ‘what he’s entitled to’), and therein lies the rub: what exactly is one entitled to?

Geuss goes on to point out that entitlement was contingent to one’s place in society. Citizens were entitled to some things, resident aliens another, and slaves, pretty much nothing at all. In fact, giving a slave more than s/he was entitled to would be considered unjust, as it would be considered to be undeserved. As Geuss writes, ‘that to treat a slave as if he or she had any entitlements would be a gross violation of the basic principles of justice’. Of course, you are thinking, post-Enlightenment ‘all men are created equal’, or so the saying goes.

US-Camp_x-ray_detainees-Guantanamo-Bay-Jan-11-2002-Phot-Shane-T-McCoy-US-Navy-Creative-Commons-513x239[1]In practice, it’s been easy to sidestep the application of justice by redefining a certain group to be outside of some protected group. During the illegal aggression by the United States against Middle Eastern countries that resulted in extraordinary rendition of civilians spirited off to GuantĂĄnamo Bay, Cuba, off the coast of the United States and outside of their jurisdiction, their acting regime declared that the detainees were not people, strictly speaking, and as such were not subject to the protections afforded to people, therefore they had no access to justice.

“Justice is the first virtue of social institutions, as truth is of systems of thought.”
— John Rawls, A Theory of Justice

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Hermione’s Time Turner

The ancient Greeks had a different idea of justice, so perhaps we just need to break out our trusty time turner to see what Aristotle had to say about it.

Here Aristotle rather equates the notion of justice to that of equality, but that begs the question: what equality? as we understand that equality comes in a variety of colours, so I won’t belabour the point any further here.

Instead of asking about justice, why don’t we focus on the root of the word, just? This yields the following definition:

Just: (adj) based on or behaving according to what is morally right and fair

This brings us into the normative domain of morality, fairness, and reason, so it’s not much to work with—basically, we are in the realm of opinion defended by rhetoric.

For ‘all’ intents and purposes, we’ve got four forms of justice. We’ve been focused on the distributive type, but there are also procedural, restorative, and retributive varieties. In many cases, not just one form of justice is satisfying and so multiple varieties are deemed, well, just.

  • Distributive or economic justice is about fairness in how things are distributed, about getting a fair share.
  • Procedural justice is also about fairness, but it’s more about fair play, an even playing field.
  • Restorative justice is about compensating for an injustice, about restoring some perceived balance.
  • Retributive justice is about punishment—retribution.

A problem arises when we try to quantify and measure justice. Consider distributive justice: If two people work in a field and each cultivates 50% of the crop, are each entitled to 50% of the yield? If the cultivated land was the ‘property’ of some other landowner, what portion would s/he be entitled to? All of it? Some of it? None of it?

What about the court system? Procedural justice comes into play here. Should a wealthy person have access to better attorneys than a poor person? Is this just? The poor person may argue no, but the wealthy person may argue that s/he earned the ability to pay for a better lawyer, so s/he is entitled to this benefit.

Restorative justice sounds simple at the surface. If I steal a loaf of bread, wouldn’t returning the loaf (or, at least, a similar loaf) be restorative—no harm, no foul? Many people will argue that this is not good enough. Balance has not been restored.

This is where retributive justice comes into play. Retributive justice is a poorly veiled euphemism for vengeance. This is where Hammurabi‘s code (or Leviticus‘)  eye for an eye—but not Matthew‘s turn the other cheek rendition—comes in. Let’s not get into Nietzsche’s take on forgiveness as being unjust and part of slave morality.

Keep in mind that in Hammurabi’s code, as with Roman law, justice was relative: Given eyes, (NÂș 196) ‘If a man put out the eye of a nobleman (amelu), his eye shall be put out’, yet (NÂș 198) ‘If he puts out the eye of a freedman or breaks the bone of a freedman, he shall pay one gold mina’.

Through all of this, we are still left wondering: just what is justice besides some vague notion constructed solely to preserve the status quo.

Sources:

  1. http://legalhistorysources.com/LisbonRights/JusticeDefinitions.htm
  2. http://changingminds.org/explanations/trust/four_justice.htm
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So What?

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Morality is a human construct. More specifically, it is a normative construct of language. It is used as a tool to maintain power and promote normalcy, but so what?

People are indoctrinated with this normative perspective, but accept it as some self-evident truth. But there is no absolute truth. This, too, is a contextual function of language.

Since the dawn of civilisation—and perhaps longer—, humans have been constructing moral codes of behaviour. From attributing moral origins to supernatural gods, they’ve attempted to move to a secular humanist vantage, ascribing these powers attributed to nature, but this is little more than a metaphysical euphemism in order to appear to be more scientific as a result of Enlightenment.

Clinging to absolute morality is like clinging to religion and gods.

As Marx said, ‘religion is the opiate of the masses.’ Clinging to a sense of absolute morality is not much different to clinging onto religion and gods. There’s a sense of security. It’s comforting and weaved into the fabric of most societies.

Still, so what? As long as the masses prefer to believe that morals somehow exist in the wild, and people, being story-lovers, are exploited by persuasive storytellers, we are resigned to this situation.

Property Rights — Possession

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Who else loses sleep over how property rights can be derived legitimately?

I don’t need to argue the existence of God or gods or goddesses—not here anyway—, but I am willing to posit that if there were these deities, no human in privy to their word or desires in a sort of biblical way. Therefore any basis for scriptural law is illegitimate.

In the beginning


I think it is useful to distinguish between the concepts of possession and property, so I’ll begin there. In the beginning, there was the earth—the land—; and there were people. (I’m taking liberties here, and skipping leaps and bounds.)

In the beginning, there was the earth—the land—; and there were people. (I’m taking liberties here, and skipping leaps and bounds.)  Nature, which is to say ‘bounties of the earth’, ‘produces’ natural resources, raw materials:  rocks, trees, chemicals, what have you. These belong to the earth and are inherently social goods.

The first people sustained themselves with these goods. Taking, say, a stick, I might fashion a makeshift club, and I might then possess this club. I have no inherent right to keep this stick. I may discard it of my own volition (or lose it) or it may be taken from me.

I understand the desire to claim ownership. Territorial animals lay claim to, well, territory; but this claim is defended through violence or the threat thereof and, to some extent, agency, for other allied animals to defend the claim (for myriad reasons). And territorial claims extend only to what one can actively monitor, so if I am a lion, I might possess a territory on the Savannah, but I do not coincidently also possess territory in London. Property rights attempt to extend this relationship, to possess something at arm’s length.

What is missing is the right to possess something. We can go back to Locke and—ignoring that nature and other living entities cannot participate in this system—enter into an accord, a social contract, one where if I possess a good not otherwise claimed by another, it’s mine to possess. As all potential parties have no say, one could argue that there is no legitimate manner to transfer from nature to person. The only defence is one of violence, as noted previously. We can define this transfer as legitimate, but simply saying something does not make it necessarily so. Nonetheless, let’s go from here, from a Hobbesian state of nature, where I can defend myself and possessions through a mechanism described by Rousseau: a social compact: I found it first—and it is useful and potentially this use or utility may be desired by others—, so I get to keep it—in exchange to ceding this privilege to others in my group. To extend this privilege is to extend the accord to other groups.

This is all well and good, but if one’s ability to maintain use of an item is limited by, say, distance or quantity, do I still have a right to possess it? If I possess 20 clubs and my clan has none, what is my claim? The claim of primacy—that I was there first—is weak. It would likely be in my interest (if not in communal interest) to share and give up possession, but having not established a right to that possession as property, how do I lay claim to these? Should I be able to? Should it be a right?

Let’s use a less simple example: a plot of land to farm. I’ve cleared the land, tilled the soil, sowed and tended seeds, and I plan to harvest the fruits of my labour. Many people might say that I am entitled to the fruits. This is debatable, but what if I possess more land than I can cultivate? Do I have a right to let the land lay fallow or otherwise uncultivated?

So current paradigms contest that, having applied labour to modify this natural good, I can hold it, possess it. Presuming that no one else has claimed ownership—a concept not yet introduced—, how does one extend possession? This should also address whether one can possess something at arm’s length.

Bedtime. Posting an incomplete, unedited draft with no citations or links…because it’s past 4 AM. Updates and extensions to follow. Hopefully, I’ll fall asleep and get some rest.

Fais dodo.

Anarchy, State, and Utopia

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I’ve been reading Robert Nozick‘s Anarchy, State, and Utopia because it was recommended by Ian Shapiro. Although I am only about a quarter way through, and he seems to have tried to hit all the angles; unless I missed it, perhaps hits these bits later on.

He thoroughly raises issues and works to resolve them, but, as with Descartes with his Discourse, Nozick seems to exogenously accept certain aspects in an appeal to tradition sort of way. With Descartes, he stripped all belief in the truth of his senses, but then he injects God into the equation from out of nowhere. For Nozick, he just takes property and value as given.

I understand that the Western Enlightenment tradition has a thing for life, liberty, and property—especially Libertarians—, but these are just philosophical notions derived from nowhere. (Wittgenstein, stage left) That he uses utility theory instead of prospect theory as a foundation can be forgiven, but that is shaky ground, too.

And so it goes


Workmanship Ideal or Convenience?

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One of the biggest issues I have with modern, Western political theory is Locke‘s so-called ‘workmanship ideal‘, a concept stemming from the Enlightenment belief that a maker of something should be the rightful owner of something. The Age of Enlightenment (AKA Age of Reason) was supposed to have divorced science from other rationale, whether divine rights (as ascribed to kings) or something else. The problem—the same problem Descartes had in his Discourses—is that God (even if vis-a-vis ‘nature‘) is injected exogenously and irrationally into the works. Philosophers even into the 21st century, if barely, have concluded that this concept breaks down when we attempt to secularise it, but we are subjectively comfortable with the notion. Of course, the more our beliefs lean towards ‘higher powers‘, intelligent design and the such, the more comfortable we are apt to feel.

I was originally inspired to write this when researching Rawls and happening upon Ian Shapiro‘s Yale open course, The Moral Foundations of Politics. James Murphy has this to say in his essay, The Workmanship Ideal : A Theologico-Political Chimera?