Justice

Justice is the transitional boundary between ethics and politics – it is the point at which our personal ethical systems interact with the legal system of the State or whatever source of judicial power is in play. Indeed, law can be seen as an attempt to formalise ethical ideas into precisely worded legal statutes. This process, thanks in no small part to the vagaries of language, often obfuscates the ethical perspective entirely, hence the inclusion of juries into most modern systems of jurisprudence: they provide a human perspective where it is most desperately needed, in the interpretation of the law.

There are two principle aspects of justice as it is usually discussed: distributive justice concerns how wealth, respect, power and opportunity are distributed, while retributive justice is concerned with allocating appropriate punishments for particular transgressions. Beliefs about both kinds of justice are exceptionally diverse. Political beliefs, as with all other beliefs, rest ultimately upon metaphysics, and thus are frequently quite insane when assessed by an external observer with different assumptions. Consider, for instance, how Republicans in the US can be opposed to taxation to support welfare measures, but support spending vast sums of money on war, while conversely a US Democrat can be vehemently in favour of civil rights, yet still support censorship. These strange positions are possible because different metaphysical justifications underlie the eventual conclusions.

In so much as we see formal justice as an extension of personal ethics, perhaps the key ethical issue in the context of justice is how we as individuals relate our ethics to the law of the place where we live. After all, we all have different ethical beliefs (derived from, or related to, our different metaphysical beliefs) so each of us is in a different position with respect to the law. If we only follow the laws that correspond to our ethics, we hold firm to our personal morality at the cost of becoming a lawbreaker and thus disrupting justice. If we enforce all laws irrespective of our own ethics, we risk upholding justice as defined by the law even at the expense of our own ethical values. This may only be possible for individuals who hold justice as a value, who (perhaps fortunately) seem to be in the majority.

Much political action is concerned with changing the law: individuals with particular ethics seek to adjust the law to bring it closer to their own morality. At the same time, any such change will move the law further away from other peoples’ ethics. In a democracy where majority rules, this practically guarantees injustice for minorities, since they are unable to assert influence on the law without the support of the majority. Situations of inequality such as this are of course vitally important to the subject of justice, especially if we take the view (popularised by John Rawls) of “justice as fairness”.

Historically, nations tended to come from a relatively limited metaphysical background – that is to say, they generally had only one major religion, or the religions of any given region had sufficient commonalities that a common ethical background could be constructed. This allowed the law to develop more easily, without having to deal with the problems of relative ethics that are pertinent to our modern society. Unfortunately, this also means that (for instance) the laws of many Western nations are dominated by Christian ethical conceptions, despite the great variety of different belief system that now flourish in our modern societies.

The issue of bringing different ethical notions together in the framework of a single system of justice is far from new. One of the most famous solutions to this problem is the millet system (pronounced with the emphasis on the ‘e’; mill-et) that was used in the Ottoman Empire in the nineteenth century. In essence, each religious group under Ottoman control was a separately organised community (or millet), each responsible for the allocation and collection of taxes, educational arrangements and other legal matters. The most common millets were the Jews, Greek Orthodox Christians, and Armenian Christians, all of whom lived within a society that was Muslim in its overarching organisation. The system functioned well until, as the twentieth century drew closer, European ideas such as nationalism and ethnicity began to undermine it.

Even today, some Muslim nations practice a millet system. In Egypt, for example, family law is applied on the basis of religion, although the State only recognises the Abrahamic faiths as legitimate. Similar systems exist in post-Ottoman nations such as Jordan, Lebanon and (to some extent) Israel, as well as in predominantly Muslim countries such as Iran, Pakistan and Bangladesh, which have separate personal courts and laws for each recognised religious community. Of course, outside of the Muslim world this dependence on religion as a distinguishment upon which a community can be based has severe limits, because of the number of people who would prefer to live in communities that are not defined by religion (not least of which because many people do not identify a religion for themselves).

In the absence of a system of relative justice, such as the millet system, we face greater ethical challenges because the commitment to a single legal system necessarily fails to provide the requisite conception of fairness which lies at the heart of many people’s idea of justice and, as already mentioned, minorities within a democracy cannot achieve effective political influence when they are in opposition to the majority. It is this threat of powerlessness that necessitates civil disobedience, of the kind pioneered by Mahatma Ghandi and Martin Luther King, and foreshadowed by Henry David Thoreau’s essay On the Duty of Civil Disobedience. We shall explore this particular subject in more detail in the final part of the "Ethics Campaign".

Powerlessness is also the driving force behind terrorism, civil disobedience’s more extreme and generally less effective predecessor. Desperation leads people to violence, and the inability to tackle a military foe with vastly greater power leads to the motivation to target civilians. However, this application of injustice as a means of fighting injustice becomes radically self-defeating as we can clearly see in the case of the September 11^th atrocities; the goal of the attackers was to strike back against perceived injustices conducted by the United States in the Middle East, including providing military backing to oppressive regimes, and the “plundering” of the region’s resources. Ironically, and inevitably, the consequence of these despicable attacks was precisely the opposite of what was intended: the overshadowing of any legitimate grievance by the sheer magnitude of the horror engendered, and a consequent greater US troop presence in the Middle East. It is difficult to see how the hijackers’ murderous insanity could possibly have been productive towards their aims, let alone just.

In most of our discussions of ethics, we have been concerned with appropriate ways for people to behave towards each other, and have concluded from almost every perspective that co-operation is necessitated, and compassion is highly desirable. As ethics collides with justice, and thus the individual is placed in juxtaposition to the State, determining the ethical course of action becomes much more challenging for everyone. We may inherit or derive our personal ethical system as an individual, but matters of justice are concerned with society as a whole.

How we choose to act in respect of the law is fundamental to our relationship to that society – shall we uphold the law at the expense of compassion and co-operation? Or do we hold firm to our ethical principles and take upon a willingness to challenge the State when it is condones or implements injustice, even at the risk of our own imprisonment, or death? It comes down to you, the ethical choices you make, and thus the conception of justice you wish to defend, whether the rule of law, or the spirit of fairness.

The opening image is Measure for Measure, by Hannah Tompkins, which I found here. As ever, no copyright infringement is intended and I will take the image down if asked.

The final part of the "Ethics Campaign" begins in December.

Comments

[translucy]

Chris, I wonder how you define and interpret the term "fairness" - given that it also has implications in game design theory. There surely are aspects to it beyond "inequality"?

[Sanjit]

India is an interesting case in this respect. We were a bunch of feudal kingdoms fighting each other and hence a single unit of our society was a piece of land ruled by a king - until ofcourse he was defeated and his land annexed by the invader. Justice and law enforcement was entirely in the hands of the local king. So benevolent king = peace and prosperity. Tyrant king = wars and bloodshed. It was so simple !

The Muslim invaders brought a more religious centric system and sought to establish a uniform law (in their eyes, Islamic justice) by systematically demolishing the existing Hindu systems, its literature and knowledge system and imposing the Sharia. Many had to convert to avoid harsh taxes and death. The idea was to enforce strict religious code which was "made in heaven" and hence infallible and the best system of justice for mankind.

Then came the British colonizers and introduced Democracy. After getting independence India started off as a Socialistic Democrcy (a republic) and now the Indian Penal Code (IPC) was the justice system which was based on British values and had no religious element to it. This also fitted in rather nicely with the elimination of the caste system.

While it now appears that this system is sort of working there are many who still want the religious/communal way of justice back. Thus under the hood of Democracy, India still has things like the "Hindu Undivided Family" or the "Muslim Sharia Courts" to help resolve family/property/inheritance disputes which are defined in their respective religious texts. The government has been trying to institute the "Uniform Civil Code" which treats as all citizens as equal but has been unable to implement it due to opposition by certain activists.

So what system of justice works ? Only time can tell but I feel that the days of communal/religious based units of society (Millets) has gone. And this is due to the sudden burst on technology which has made communication, travel etc so easy that the communal lines are blurred. Globalization has changed the social landscape in India and presenting a most interesting case for study.

The book "The world is Flat" by Thomas Friedman has more on this.

[Chris]

translucy: Hmmm... how can I wriggle out of defining "fairness"... :) If I have to do this, I will have to go into Rawls "A Theory of Justice" more than I was planning to (I was just going to raid it for a few things), but this may be insufficient. If nothing else the idea "justice as fairness" recasts this issue in terms other than "justice as revenge", which I believe is valuable.

In brief, Rawl's position is based on two principles:

The Liberty Principle: all will have the greatest degree of liberty compatible with the same degree of liberty for all
The Difference Principle: social and economic inequalities will be distributed in the manner that benefits the most disadvantaged.

Obviously, this is largely focused upon distributive justice. Hope that is sufficient. :)

Sanjit: thanks for sharing your perspective here. Many countries have been through a somewhat similar pattern to the one you describe; what always struck me about the Hindu attitude to monarchs was the way the Mahabarata casts the monarch as a servant to the people, and the people as a servant to the monarch. This is quite an advanced political idea for such an old source!

You may be right that globalisation moves us beyond the possibility of millets et al - one open question is, would we remove the disruptive influence of religious activists pushing for their ethics to be enshrined in national law if they were allowed to do this solely in the context of their own community (who share the same values)?

Thanks for the comments!

[zenBen]

Legislators should be trained as software engineers, and legislation should be coded in an OO paradigm. After all, what we're talking about is applying rules to objects with attributes, states and relationships.

The only problem then is scale - 100% of massive software engineering projects fail according to their initial project spec.

Seriously though, I've always maintained that nation-states are too large to function well as democracies, and are largely artificial constructs anyway.

[Chris]

"I've always maintained that nation-states are too large to function well as democracies..."

This is the argument for decentralisation. I believe this claim holds a lot of water - but taking power away from the State is a challenge, of course. We'd need to create a political climate where this is broadly desired - it might even be possible, because people are naturally more concerned with what goes on in their own backyard.

The problems come with the various claims for public goods (like defence) that can only be pursued by the State. In the US, for instance, decentralisation will be difficult while the climate of fear persists - not to mention that pride in the nation-state itself acts as a resisting force.

As for object oriented legislation - my mind boggles at the logistics of making something like this come to pass. ;)

Best wishes!

[William Ryder]

I don't believe there is such a 'thing' as justice. I believe it is a process. Is it justice to condemn a human being for fouling murdering another human being? Will this second foul act bring back from the dead the murdered victim? Will it make anyone forgive the murderer? Can justice be done? Justice seems to be the process of forgiveness in some form or fashion. And, forgiveness, is, for me at least, a very difficult process that takes time and much backsliding. I'm not even sure I have the power within me to forgive. Perhaps it comes from an outside source beyond my being. Within religious beliefs there is a force that gives us its 'grace', a power to forgive, which is the same thing as to love, I would say. But, that would then mean that love may come from this same outside source, meaning ultimately that we cannot in and of ourselves truly love.

That would then bring me to believe that life itself is a journey of forgiveness, learning to love, even ourselves. And, if it is this process of learning, how can it be a bridgepoint in society where the human compassion meets the logic of the law? The law is certainly disconnected with forgiveness because it punishes lawbreakers. And, it is in the name of the law, not justice, that society names as 'giving closure to the victim's family' which I believe is merely an excuse that replaces forgiveness with more violence. I keep noticing that the language that describes 'justice' is the language of society concerning social issues and relationships like surviving and consistency, not of the human being concerning love, life, inconsistency, as we face the realities we call life.

I don't know if there is an unequivocal argument that one can make that absolutely describes a 'thing' called justice.

[Chris]

William: thanks for your thoughtful comment! As an philosopher of some kind, I feel obligated to ask: if justice is a process, why is that process not a thing? :) However, this is surely tangential to your central idea.

Although you don't explicitly mention capital punishment, it is in your words by implication. Like you, I find this hard to reconcile with my notions of justice, but I can see why some people would consider it just. Personally, I cannot endorse murder by the State as any kind of justice, but I would not attempt to enforce my value on other people.

As for the role of forgiveness in justice, this topic came up near the end of the Hannah Arendt serial - I am a great believer that forgiveness has an important social and political role to play. I suspect we will talk about this again at some point.

Ultimately, I cannot disagree with you that there is no unequivocal definition of justice - justice, like ethics, lies in whole or in part in the eye of the beholder. All the more reason for us to discuss our ideas of justice in order to determine how our societies should proceed.

Best wishes!