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 11th 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.