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JUSTICE OF JUSTICESUniversal ethics and moral
enhancement in a plural world by Gabriel Stilman
What would you want the rules to be like –the rules of your city, your country, your world, and, in fact, the rules of the setting of our choosing-, if you knew that you were to be conceived again with an uncertain genetic structure and under circumstances also unknown in terms of time, place, family, socioeconomic condition and sense of belonging?
After a more or less complex deliberation with yourself, you can attempt a first answer. That answer is, strictly speaking, a system of answers because a legal order is a system of rules. This larger answer can surely be made more precise; particularly if we expand the number of scenarios or hypotheses that you had in mind to provide it. Here I contend that the most deliberate and complete response that you can give for that question –subject to a condition that I will describe below- is of utmost importance to define how the rules should really be. And I also state that your answer is as important as everyone else’s responses, always subject to the same condition that I will put forward as appropriate.
With that reasoning I intended to provide some anticipated insight into the question of how I think justice is defined for each and every one of us. The other part of my solution to the fascinating and ancient question: “what is justice?” calls for the same consideration of the answers that every one of us may have prepared for that personal examination of conscience. This means that a just system will be the one that democratically materializes and summarizes the individual notions of justice of those whom it affects.
Thus, we have distinguished the content of justice -in truth, of the justices- for every one of us from the notion of justice when considered globally. The latter, the justice that has to be materialized, could then be called justice of justices or metajustice. The justice of justices, then, endeavors to harmonize the universalist principle, that has a Kantian die and is immanent to the definition of justice, with the particularist elements that are also indispensable for discovering a plausible description of the notion; democracy as a general system that reflects the equal consideration that each and every one of us deserves, with the diverse positions that may be put forward within it. I have no doubt that this model, although to a certain extent it is procedural in nature, is consistent with a fierce defense of both human rights and diversity. Above all, it impels us to an ongoing reflection about morality and the situation of others in all regards, thus fostering equilibrium and moderation criteria which, if not equivalent to justice, are never dangerously far away from her.
2. The justice of justices and John Rawls. The social contract tradition -the tradition of Kant, Locke and Rousseau- has found in John Rawls its greatest exponent of the 20th century. His most important work, A Theory of Justice, published in 1971, almost single-handedly transformed the study of political philosophy, and then encouraged a new wave of development and debate on the matter: particularly on the notion of justice. To unravel the principles of justice Rawls asks us to imagine a situation in which a group of rational individuals, focused on advancing their own interests, are brought together to deliberate, but they are placed behind a veil of ignorance which denies them any knowledge of who those individuals are going to be in the society, the rules of which they are about to create. That is to say, these hypothetical participants lack any bias-inducing knowledge of their individual features and their social situatedness. They do not know what their status in society will be, what will be their talents and their abilities or the group they will belong to. They are also ignorant of their desires or preferences; they do not even know about their psychology. However, this group of individuals is allowed to have general information concerning human society, its institutions and the psychology of man. This imaginary situation created by Rawls configures the concept he called “original position.”
The purpose behind his hypothesis about the original position and the veil of ignorance, is to define the outcome of a truly impartial judgment about justice. Rawls contended that if nobody knows their own putative role, the participants in the original position may not suggest any rules that are biased for their own benefit. Thus, the hypothetical agreement the parties in the original position would ultimately reach, and the rules resulting from such a deliberation, would constitute the content of justice.
The idea of the veil of ignorance seems attractive to elucidate the problems of justice; not only problems that are constitutional or political in nature –like in Rawls’s Theory of Justice- but also those that are particular, familiar, generational and even those that might involve living beings other than mankind. In fact, the method of seeking for what is just building on a certain veil of ignorance to help us understand what impartiality means, is the method I employ in this paper.
But reflection on Rawls’s theory of the original position and the veil of ignorance has led me to go deeper into this structure by analyzing its two stages: a) the stage of absolute or general impartiality – similar to Rawls’s original position but with a veil of ignorance that is even more absolute than that created by Rawls, and b) the stage of relative or particular impartiality, where each of us honestly examines our inner self searching for the rules we want for a world that will receive us under unknown conditions. 3. Absolute impartiality and relative impartialities. Even if you and I are determined to be impartial judges of a certain conflict between two individuals with whom we have nothing to do, we will probably not arrive at the same solution if we have different perspectives on some general issues. In fact, attorneys have many a headache because of this: two judges equally honest and qualified may adjudicate the same case differently. Simple impartiality, understood as resolving an issue where each party is free from any selfish interest, falls short of directly defining an appropriate criterion of justice. This does not mean that we are to do away with the idea of impartiality. In fact, what is needed is more impartiality and not less of it. As I see it, it is not incoherent to speak of several impartialities; as many as there are human beings. And even more, as many impartialities as hypothetical non-thinking living beings exist or might exist. It is a fact that we as human beings can be impartial if we set our mind to it; and that while being impartial, we can still judge differently. Thus, I believe that the impartiality we need to resort to, in order to find the rules of justice for a society or for the entire world, operates at two levels: a general or absolute level and a particular, relative or personal level. The first one of these two levels is associated with moral universalism, with the philosophy of thinkers such as Kant and with a doctrine like ethical monotheism. The second level makes reference to the particular views that different people and different communities have.
Absolute impartiality agrees with the notion of a hypothetical deliberation among all human beings, subject to an extremely inscrutable veil of ignorance. The hypothetical participants of the deliberation know nothing about them, nor do they have any knowledge of the circumstances that will surround their lives. Naturally, they are deprived of any information about their economic circumstances, their talents and abilities, sense of belonging, etc. They cannot be attributed any general preference for certain “primary goods” as the contrary would entail vitiating the procedure in favor of a certain pre-desired response. Like in Rawls's Theory of Justice, no aversion to risk can be attributed to them or any other particular psychological disposition. It can neither be expected of the parties in the original position to have any substantial unanimity as to the laws of reality that are discussed among people. This strong veil of ignorance makes it impossible for anyone to know what they would believe about the world, human nature, the evolution of history, economic laws, determinism, and freedom. Even better, these individuals may know that there are going to be disagreements as to the interpretation of reality, in philosophical, political, economic, religious and metaphysical issues. They may also be warned that the civilization they will become part of will offer a wide variety of appealing life projects and that there are going to be multiple causes that might trigger their enthusiasm, which may at times come into conflict with each other. Finally, the participants will also be informed of the fact that in the real world everybody will have certain views as to what is just and what is not just; and that those positions will differ. We all agree on the truth of the above statements and, thus, we can make the participants play a part in these realistic and fundamental assertions. After all, they are nothing but certainties about the uncertainty. But we will later see that it is only appropriate to provide such special certainty if we are seeking to obtain an authentically unbiased judgment that is also significant.
These are the circumstances –certainly just a few- surrounding the election on which the general notion of justice is laid down. To ask what human beings would agree to under such restrictions is to search for the meaning of general justice in concrete terms. And if the veil of ignorance is absolute –as it should be- and even blinds the electors as to the visions of life that they are to have, then, invariably, the agreement that may be born under those circumstances will make reference to such views of life, of the world, of history as will exist in fact, equally considered, subject to the condition that those particular notions reflect what their advocates interpret as “good” leaving aside any circumstance of life; i.e., from their own relative impartiality. Thus, in those conditions of absolute ignorance of what they will become, desire and believe, the participants in the deliberation have no alternative other than agreeing that justice will consist of an equal consideration of the individual conceptions of justice that each of them will in fact have, which will have to compete, on an equal footing, in a democracy.
But, what are the individual conceptions of justice that each of them will have? They are the notions arising from the second stage of impartiality: relative impartiality.
The particular or personal relative impartiality stage arises from the vision of the world and of mankind that each of us has, here and now, regardless of our situatedness. This is translated into the answer to the question already posed: What would we –you, I, our neighbor- want the rules to be like if we were told that we were to be conceived again under circumstances unknown in terms of time, place, socioeconomic condition and sense of belonging? The answer that each of us may have in store to this question, after the necessary inner deliberation, is precisely what defines our particular notions of what is just.
As can be seen, general impartiality reinforces the elements and claims of universalism inherent in Rawls’s theory, so harshly criticized by his detractors. But through the same notion, we inevitably reach the second stage: particular impartiality; the impartiality of each of us to think of the rules that we would wish to have in a world or in a society where we would not know who we would be. Working with this approach entails detaching ourselves from our current position –as we must imagine that we can be conceived in any circumstance- but at the same time, it demands a declaration as to the notion of life, history, economic rules, the nature of human kind and the world in general that each of us currently and actually has. It is these visions of the world that make our thoughts on justice legitimately diverse and, to that extent, enable them to be equally considered. It is the veil of ignorance that acts as a sieve to allow us to discern the positions that are advocated in good faith from those other positions that are motivated by selfishness, partiality or opportunity. Thus, it is the question posed at the beginning that, in my judgment, adequately reconciles the universalistic element that is immanent to the idea of justice on the one hand and the consideration of the personal notions that each human being has about things and their evolution on the other hand.
Thus, by combining general impartiality (the general notion of justice) with relative impartiality (the particular notions of justice) we arrive at a system that is eager to pledge a firm commitment to diversity and pluralism; that does not promote the typical Western liberal democracy as the only constitutional structure that is compatible with the idea of a just society; that takes into account the views of the world of all people; and that, at the same time, ensures for all human beings the primary goods that are most commonly desired, which are precisely those that can be comprised under the umbrella term of “human rights” and are enunciated in the Universal Declaration of Human Rights. (Among these rights, and as a special qualification of the basic economic rights, I will defend the right to the original property over a portion of the planet’s natural resources, equivalent to that of other coevals, which, I believe, belongs to any human being that is born into this world just by being a human being.)
Thus, although the ideas of justice that I advocate have been inspired by the hypothetical debate about justice imagined by Rawls, my conclusions do not agree with those expounded in his Theory of Justice. Instead, they can perhaps explain the idea of the “overlapping consensus” that he developed in his later writings, in part accepting the criticism received. (At this point I will resist the temptation of addressing the rules of justice that Rawls derives from the procedure developed in A Theory of Justice. I will indeed inform the reader who is not familiar with his ideas that, in general terms, his conception of a just society corresponds with a constitutional democracy, rooted in liberal political values and quite egalitarian in the economic aspect.) Paradoxically, despite the inclination to universality that inspired them, the rules of justice of the early Rawls are based on particular assessments that can hardly be justified in absolute terms for the human kind as a whole. Our challenge is to be able to define –by building on the notion of justice as impartiality- a conception of justice that is truly universalistic. This broader notion is compatible with justice in a constitutional democracy with an egalitarian bias (in fact, I think it is the type of society that I personally prefer in my conception about what is just.) However, a just society does not necessarily have to be that type of society and I have attempted to provide grounds for the admissibility of a moral, economic, political and cultural pluralism within a more comprehensive notion. In my understanding, the procedure in A Theory of Justice is vitiated because the participants in the deliberation are attributed the desire to secure a definite list of primary goods that all men would allegedly desire to the same extent; and, at the same time, those participants have a rather conservative psychology, not being willing to pursue any risks. In my opinion, however, the absolute and authentic veil of ignorance present during the first stage of the debate about justice forces us to consider the different beliefs that are in fact sustained by people about philosophical, historical, economic and anthropological issues. And it is by building on these beliefs, that each person has to issue a pronouncement or assertion about the rules of justice. That is my basis to propose the idea of a relative impartiality.
Later on I will endeavor to provide more precisions about the elements common to all the particular notions of justice advocated by almost all of us and to justify with that the legitimacy of human rights: political, economic and social human rights. But before that, I would like to go deeper into the theoretical outline just described, now focusing on it as the result of a progression starting from a simplified model of justice.
Many times justice is perceived as having a certain degree of equality and I indeed think that is the case. But it is evident that the equality advocated by justice does not consist in an equal distribution of any good in particular; at least if we adhere to a conventional definition of "good." The big question, then, has been and still is to find out what is the equality that is demanded by justice. In the models I propose below I try to advance from the simplest situations to the situation that is most comprehensive of global justice. In all cases we will see how the ideas of impartiality and equality are intimately related. Impartiality leads to equality. The task before us is to discover what type of equality is obtained by considering the hypothetical impartial deliberation among men, who must bear in mind reality as a whole, comprised of time, indefinite people, multiple interests, philosophical beliefs and uncertainty. But let us start with something fairly straightforward.
1) If you and I are told that we are going to end up in a new world, with a surface area of ten hectares that are equally rich in natural resources and that one of us is to arrive before the other; and if we are given at this point the opportunity to set the rules of this world as to property rights, we would probably establish that regardless of who arrives there first, the second person to arrive will have an equal right to the preexisting natural resources. That is to say, the just solution will consist in an equal satisfaction with respect to the issue raised; in this case: ownership of the existing resources. In this line of reasoning, let us assume that two persons are in a place where a certain resource is scarce; for example a desert with no water. Just by chance –what both people considered chance- a certain amount of water appeared, let us just say a liter. Both persons would want to drink the entire amount and are equally thirsty. One of them is stronger than the other, to the point that he could impose his wishes by force. But, what is just? What is just is that each should drink half. That is just because it is what the two people would have agreed if they were behind the veil of ignorance that would prevent them from knowing who would be stronger in that circumstance.
2) If we slightly changed the above example establishing that one of the two individuals is more intensely thirsty than the other one, the solution would be identical as justice is the equal satisfaction of the conflicting desires. This now would mean that the person that is in more need would be entitled to drink a larger quantity of water: the exact quantity so that both individuals would be exactly as thirsty as each other afterwards. And if in this example thirst is the only need and water is the only good, it is equivalent to saying that both individuals deserve the same degree of satisfaction.
The preceding examples are focused on the distribution of a single disputed good and assume that there are no other goods or preferences that may be relevant for the resolution of the case. (For example, we do not wonder what would happen if the parties were members of a caste system where it is recognized that the higher castes must be in a better position than the lower castes. We do not consider this because that would entail assuming the existence of a new and second different good; namely, the preference of living in a caste system like that one. Additionally, we deliberately build these examples based on the goods that, like land or water, are not manufactured by anybody in particular, but come from nature with no need for human intervention, and effectively, such agreement among the individuals involved exists. Otherwise, we would have to consider the influence of the energy placed in the manufacturing of the good and other factors, which would mean that we would be introducing other different goods: for example, leisure and its counterpart: effort.)
Ultimately, if we assume that the hypothesis deals with the distribution of a single good, we can clearly see that the just result is the one that provides an equal satisfaction of the desires or the needs in question. This is so because it is what would undoubtedly be agreed to, impartially, under a veil of ignorance.
3) The principle of an equal satisfaction of desires is still valid for hypotheses where goods are not given but need to be manufactured. Let us imagine a species of beings that can belong to two classes that are clearly opposed and well defined: members of group A are born absolutely incapacitated to work and manufacture goods, while their counterparts belonging to group B are born pre-determined to work and manufacture goods. Let us suppose that both groups have identical needs for the manufactured goods and that the members that work are as well off (or bad off) as their fellows that are incapacitated in connection with the functions that are to be performed by each group respectively (not do anything and work.) Which is the rule of justice that should govern this society? The rule again will be the egalitarian distribution of the manufactured goods, irrespective of the fact that group B was exclusively in charge of the manufacturing. That is just because these beings would agree on that under a hypothetical veil of ignorance that would preclude them from knowing to which group they will belong. Again, it is about equal satisfaction.
4) Now let us add an assumption to this case: the manufacturing activities performed by group B entail for its members a certain cost, effort or sacrifice, by virtue of which all members of this imaginary community agree that in principle it would be better to be part of group A instead of group B. What happens then? It seems that the rule that used to mandate an egalitarian distribution of the manufactured good must be somewhat altered. This alteration would consist now in saying that –always assuming that in this society there are no goods other than those produced by group B- such goods are not to be allocated on an equal basis any longer, even if the need for them were equal. The just distribution will be the one that will ultimately generate a similar degree of final satisfaction for all its members, not only taking into account the enjoyment of the manufactured goods, but also considering that those that effectively manufactured the goods are entitled to a compensation for their work. In other words, the leisure that members of group A enjoyed becomes the second relevant good, which should also be distributed equally and, if that is not possible, it should be sufficiently compensated. Consequently, the principle of the equal distribution of the manufactured good is combined with the principle of equal distribution of the effort employed in its production. The equality criterion derived from this is more overarching than: a) the simple equality in the distribution of the manufactured goods, or b) the simple equality in the distribution of the manufacturing efforts. None of these positions is just because neither of them would be accepted by impartial individuals. Impartiality once again calls for the members of our imaginary and simple community to have an equal degree of final satisfaction. Nevertheless, as we can see, such equality refers to a higher level than that of the goods produced or the efforts employed. It is a more comprehensive equality.
5) Let us more closely approach the problems of human justice, leaving aside one of the factors that is absolutely deterministic in the above cases (3 and 4.) Let us suppose that members of group A –the incorrigible idle members- continue being as unproductive as before, but now it is certain that they have a certain capacity to improve that could materialize by making some efforts. They are no longer absolutely bound to unproductivity, but it is recognized that they can join in the manufacturing of the good that everyone desires although in exchange for some cost.
Impartial parties in the deliberation that have this situation in mind and ignore whether they will belong to group A or group B will again promote equality of the final satisfaction. The costs that members of group A have to face in order to contribute to the production of the good desired by all must be equally borne. For example, if those efforts consist in a learning process, members of group B may undertake to teach, thus contributing their share to the common effort. Additionally, if group B's contribution made no sense or were counterproductive to the efforts that group A has to deploy, group B would nonetheless be obliged to promote the satisfaction of group A in an aspect other than the specific manufacturing of the good in question. In turn, members of group A must contribute their part of efforts if they wish to have access to the goods. This is the manner through which the well-being of all the members tends to be equivalent and, however, goods continue to be produced, with no decline in the efforts made with a view to generating them.
6) In case 5, agreement might not necessarily exist among the parties as to what would be the degree of possibility of improvement for those that cause the total usefulness to have a downward trend (group A of the idle members.) It is possible for this group to assume a bad faith position, feigning an impediment to improve with no fault on their part that is more significant than the one they have for real. Conversely, it is possible also that the “virtuous” members of group B exaggerate the merits of their accomplishments and strongly advocate full responsibility for things that occur to each one. Indeed, this serious discussion about a primarily factual question underlies the discussion about the multiple problems of justice. To what extent are the criminals responsible for their crimes? To what extent are the peoples responsible for their history and their rulers? To what extent is each of us responsible for how well we do in life? To judge -and to dissent- about the degree of responsibility that people have in what happens to them means also to adopt a position -and to dissent- about the course of action that would be advisable to take in order to make an improvement, or even about the uselessness of attempting that course of action. From this ongoing disagreement among persons about the causes of things derives the difficulty for two or more parties in a conflict to accept a common course of action to be followed, such as making mutual efforts to improve certain aspects (lack of talent, productivity, social integration, etc..) These two usual points of disagreement: to what extent we are responsible for a certain thing and which are the best courses of action to improve in that regard, make it more difficult to be able to reach cooperative agreements similar to those of case 5, except within our families, our couple or groups that are bound by strong common objectives and with a high level of mutual trust.
If humanity as a whole were to trust some imaginary sage that could tell us what each person, group or nation should do to improve -and provided the sage was right in his recommendations and that we agreed on what "improving" means- then we would surely have a reliable method of materializing the most complete justice. If we all had access to the same source of infallible and unquestionable knowledge that would allow each of us to know which actions are the most conducive to happiness, it would be directly inferred from the above that we should all achieve a similar degree of happiness. With such a hypothesis, if someone were less happy than another person, the cause would inexorably lie in the individual's own flaws which incapacitate him to undertake the recommended courses of action, or in effects produced by external agents, such as other people, accidents and natural catastrophes. But none of this exists. Instead, we struggle with uncertainty, disagreement and periodic changes in our own way of seeing things and our priorities.
It stems from the above that there is a good that usually all people and human groups regard as important, although to a different extent: freedom, in the sense of independence from external agents. It is the “negative freedom” as Isaiah Berlin called it; that is to say freedom according to classical liberalism, which means that no person or group of persons should interfere with our activities, thus permitting us to lead our lives in conformity with our own criteria. (This is the concept of freedom advanced by authors like Nozick, in contrast with the broader notion of liberty proposed by the egalitarian liberals, which refers to the actual possibility of doing the things desired, given the necessary resources.)
The desire to have a significant degree of freedom corresponds to the belief that it will be extremely difficult to reach consensus about the courses of action to follow in order to accomplish a cooperating objective and that it will not be easy to have the trust that is indispensable for that undertaking to be feasible. In any case, we want to be free to decide something or not. On that basis, those that advocate a liberal conception assign negative freedom an importance that is even greater than the importance that an even distribution of efforts and benefits or the assurance of a certain portion of the social wealth may have, assuming the other positive and negative consequences that their greater independence may bring about. In other words, the desire to have a high degree of negative freedom is for many people a more general –superior- good compared to the other good concerned with equally obtaining the other benefits. It could be said that freedom is one of the desires of desires of many people. For example, it is a fundamental component of the general preferences of the members of the US society. (Likewise, in the sphere of international politics, the idea of and desire for freedom are translated into the idea of and the desire for sovereignty and self-determination of nations. Indeed, until very recently, governments have given almost absolute priority to non-interference by other countries in their affairs, over any benefit that would require cooperation or submission to common rules.)
Thus, when we are faced with the absence of common beliefs, the difficulty of assuming cooperative undertakings and the importance of negative freedom, it seems that the idea of equal satisfaction that repeatedly appeared in the cases described before is absolutely diluted. But if we look closely, we can conclude that what is really happening is that equal satisfaction has been elevated to a more general level: the level of the more encompassing preferences, where the particular conceptions of each person referring to the greater aspects of reality begin to have a role. And it will be these general conceptions or preferences of each person that will deserve equal satisfaction in accordance with justice.
At this point let us quickly mention that the typically liberal conception is one of the more general preferences that compete in the democratic process and within society's general struggle. Such a notion emphasizes precisely that, above all, one wishes to act on the basis of one’s own judgment without having anyone tell us how things should be done. One is reluctant to trust the good functioning of cooperative projects and, instead, promotes and assumes the challenges of competition. Such a concept assigns to human beings a high degree of responsibility for their acts and their consequences, merits and failures.
However, the preference to live under certain liberal rules has been valued differently by different peoples and societies throughout history. The fact is that at present, the value of freedom as the absence of submission to external agents is strongly valued. Jacques Attali states: “The prevailing value in present societies is freedom. Man could have chosen other dominant values: equality, responsibility, loyalty, virtue; but he chose freedom." But although Isaiah Berlin’s negative freedom is more valued today than in any other period of history, nobody would impartially –and thus in good faith- state that negative freedom is the only good they are interested in protecting. On the contrary, it is probably even more important for all of us –even for the good faith classical liberals- to ensure satisfaction of elementary needs such as housing, clothing, food and health.
On the other hand, as the participants in the debate about justice are not two but innumerable persons, an arithmetic equality of satisfaction with respect to any good that would apparently result from a simplified impartial debate, is again transformed into a more comprehensive equality that takes into account the numerical composition of interest groups. Consequently, it leads to promoting the democratic principle with the typically constitutional restriction consisting in the respect for the most sacred parcels in each particular conception, as nobody would like to leave everything up to the will of the simple majority. In fact, a very common general preference is that for a certain number of cases the decisions adopted by the majority are to be respected, or, more precisely, that the preferences of the majorities and the minorities are materialized in the respective proportions. This last wish is another over comprehensive wish.
Thus, here we have at least two preferences that are more general than the equal division of goods and efforts: the preference for freedom and the preference for the respect of the democratic principle. And there are even more preferences that are general, the contents of which vary according to people’s different particular conceptions and deal with the great human and philosophical topics: the value of religion, the relationship between the individual and the community, the extent to which we are responsible for our actions, the debate on how the wealth of nations and people is produced, the importance of such wealth, etc. To be a socialist or an advocate of the free market, a nationalist or an advocate of a borderless world, a believer or an atheist, a conservative or a liberal -when it is a true belief and not a convenience-related decision- has to do with different convictions about the facts of reality that are always being debated. For example, those convictions correspond with conflicting ideas about the “essential” character of mankind: Is man a social being? Is it an autonomous system of ends and values? Is it a cell forming part of an organism? Or is it an appendix of god?
Each of these particular conceptions that are general includes its own impartial rules on human, social, economic behavior. And as no one owns the truth, I believe that all these conceptions, with the significant proviso that I will discuss in a minute, deserve to be equally taken into account to define the general rules of justice. This "overlapping consensus" -in Rawls's terms of beliefs about what is just- can be referred to as justice of justices.
5. Human dignity as a premise for and limit to the justice of justices. The conceptions about justice that are out of the big debate among particular conceptions of justice are those that do not share the fundamental premise for the justice of justices; namely, the principle that claims that all people have equal dignity and are equally worthy of consideration. Indeed, the idea of justice of justices is based on the moral equality of all human beings. It is a premise and is an axiom in nature. It is evident that the catalogue of doctrines that are repulsive to human dignity is not willing to share the essentially democratic procedure of the justice of justices. Thus, none of those conceptions that are against humanity may base any of their tenets on the ideas of the justice of justices. Among these conceptions that repel the justice of justices –and certainly, practically all particular conceptions of justice as well- it is worth mentioning:
a) those that deny consideration for the ideas or feelings of women;
b) those that advocate the superiority of a race, such as Nazism;
c) those that want to impose a religion, such as religious fundamentalism;
d) generally, those that reject the principle that all human beings are born free and equal as to dignity and rights.
Fortunately, the ideology that embodies the moral equality of human beings is, at present, a shared heritage of most of the doctrines about justice; thus, it is a premise that only a few are interested in denying. Moral equality among men is a sort of minimum that has been established in the ethical awareness of humanity for several centuries now and is shared by rival left-wing and right-wing doctrines. I believe that at this stage, a theory of justice need not worry about convincing the detractors of this elementary principle, nor does it need to attempt to include it harmoniously within the theories.
At the particular level, impartiality demands that each of us declare our respective beliefs about justice, which are inevitably based on our conceptions about the world, human nature and economic, historical, social, natural and metaphysical rules. At the general level, impartiality mandates that we gather all the particular conceptions for them to compete on an equal footing and result in the general rules of justice. As if each particular conception of justice were a member of parliament, the general conception is to be reflected in the decisions adopted by the multiple-member body as a whole.
As we have seen, relative impartiality is condensed in the response to the following question:
How would I like the rules of the world to be if I knew that I were to be conceived again in an uncertain place, time, society, socio-economic status, in an uncertain womb and with an uncertain genetic structure?
Rawls's impartiality shies away from a questioning that I believe is unavoidable, and that is precisely the problem posed by the above question. The question contains a reference to every single one of the real persons that are destined to answer it. Wondering how we would like the human rules to be if we did not know who we were to be in this world, entails questioning ourselves about our current visions and beliefs about a number of general topics: what each of us thinks the human being is, how each of us thinks economics work, what each of us thinks about the universe in terms of the degree of freedom or determinism that exists, what are our positions about God and religion, what is the point we consider advisable between the maximization of utility and equality, and much more. The answers we provide to these questions allow us to build our position in connection with the question: "How would I like the rules of the world to be if...?" and that amounts to defining our own vision of justice; here and now. With the answers that each of us develops we will contribute absolutely all the impartiality that can be sensibly demanded from us. To answer, we should not represent ourselves as noumenal voids; on the contrary, we should enquire in the deepest and most authentic of our beliefs. But at the same time, we will discard a multiplicity of attributes, strengths and weaknesses, characteristics and environments that mark our situational preferences.
The question I propose as a springboard to the search for particular conceptions about justice deliberately refers to the initial circumstances of life –and not of the already educated human being- in order not to impose the reasoning on the basis of an assumption that is extremely debatable, such as thinking that each of us “might as well” be another human being that lives in the world (for example, someone who has committed a terrible crime that we think we would have never decided to carry out.) This way, it will be our personal conceptions that would express a pronouncement about determinism, freedom and its variations. We must all accept that just like we were born in a certain circumstance, we might as well have been born in a different one; obviously, we are not responsible for the circumstances of our birth, and, therefore, there is generalized consensus that these circumstances are fortuitous. Much more debatable, however, is the fortuitous nature of a number of circumstances that occur throughout life. In this field, there are few that are willing to argue for the absolute irresponsibility of the individual. But there are also few that, faced with the challenge of justice, would admit to the total responsibility for our failures. In any case, this is an arduous debate that offers a wide margin to allow for authentic and concurrently diverse positions. Each of those positions contribute to giving shape to a particular conception of justice.
There is another restriction related to time and that is intended to ensure a complete impartiality in our understanding: the question: “how would I want the rules to be…?” must be answered by dispensing with our situational interest in the most immediate future. On the contrary, it obliges us to imagine the possibility to start living in any point of the timeline.
7. The right to ask and to answer. The question about how each of us would like the rules of the world or society to be can be broken down in a great many partial questions. In fact, if we attempt to directly answer the parent question, we must consider several aspects. These aspects to be considered are, in truth, hypotheses. But nobody can arrogate the right to define which hypothesis deserves an answer and which one does not. Consequently, all members of society have the right to pose specific questions and they are all also entitled to answer their own and other people's questions. The idea of a justice of justices entails the need for a private deliberation, in the intimacy of the inner self, and for another public deliberation in a social or political environment, conducted with honesty.
Given that justice results from a democracy where all the electors act in good faith, since a procedure of this kind has never been performed, it is necessary to inaugurate it. Even if this procedure is not enshrined in our constitutions, it could be promoted to become acquainted and argue about justice. This research that is essentially empirical will provide us with –it actually already does- one of the most potent and convincing tools to defend a couple of important and supplementary notions: on the one hand, human rights that are common to all: political, social, economic, cultural and environmental; on the other hand, the legitimate diversity of what we experience as “just” that originated in a legitimate diversity of visions of the world.
Empirical knowledge and rational abstraction, particularism and universalism, self-determination and world governance, utopia and reality; they can all find a plausible equilibrium when directly investigating what each one experiences as just and after having weighed it in a moral democracy.
8. Justice, deliberative democracy and truth. The justice of justices is closely related with the notion of justice as a result of a deliberative democracy or a communicative action. In both cases, justice is the result of a democratic procedure, conducted under certain conditions. In the justice of the deliberative democracy, these ideal conditions refer to communication as the top priority. I think that a larger degree of precision can be contributed if we refer to the good faith that should preside over this deliberation. More specifically, that good faith must imply that each elector is obliged to promote his own particular notion of justice –and nothing else- in the terms that justice has already been defined.
Let me venture a thesis at this point: in the political practice we know, what is closest to the moral democracy defended by the idea of the justice of justices is the procedure to enact a constitution. Unlike regular elections, where nobody is present and only a few are compelled to cast their votes for what they consider just for society as a whole, the debate of the fundamental rules –for example in the framework of a constitutional assembly- is tinged with a greater presence of essentially moral argumentation; that is to say, arguments that are intended to persuade of the general advisability of the proposed rules or courses of action. That is why a constitution reflects, ideally, the general notion of justice of a given people.
The justice of justices includes a statement that gives rise to passionate debate. That statement is that all notions of justice have the same value. For some, this could be a virtue of the theory; for others, it could amount to an unacceptable error. Our conception offers an intermediate point between relativism and absolutism, and, precisely because of that, perhaps it will not be convincing for either side.
The crux of the matter is the issue of the truth. Rawls introduces his “Theory of Justice” stating that “Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue”. But is a theory on justice not perhaps a system of thought? Unfortunately, to the obvious complications that we are faced with to achieve a more just world, we have to add the fact that men do not easily reach unanimity as to the notions of true and false. If we had identical beliefs about all aspects of reality, our particular conceptions would be much more similar than what they are. But the truth is that people have different visions about reality and, on the basis of that, they have different opinions as to their sincere ideas of what is just. These differences in conceptions -no longer about the notion of justice but about the world- become more pronounced when comparing different cultures, and, even more so, if the historical dimension is included in the analysis.
The notion of general justice that we present does not elude this difficult issue and establishes that, in order for us –as fallible human beings- to determine what is consistent with justice, all the answers that as a result of meditation each of us may have for those questions and any others, have the same value, provided they abide by the very premise of the theory: human dignity and moral equality among all human beings. These answers exclude from the debate all the doctrines that are opposed to humanity. Now, the relative laxness of opinions that the theory admits does not entail subscribing to an absolute epistemological relativism, according to which, there would plainly not exist more true or more false answers. Simply, it implies endorsing the view that claims that nobody could arrogate a better right than the rest to prescribe what is true and what is false in the field of humanities; a field where many reasonable and opposite positions have been held for a long time, and, above all, a field where the ideas have sufficient significance to modify the reality they describe.
Here I feel that we are at the frontier of what a theory on justice –if we understand justice in its strict sense- can give. In order to cross the threshold it is necessary to display a theory and a practice of moral virtue based on universal principles. I will deal with this later.
9. Justice and the theory of relativity. Two basic types of starting points can be defined to build a theory on justice. The first type is built on certain notions about the nature of man, of society and of history. This is the usual way and involves the previous endorsement by the author of a certain philosophical, religious or sociological conception, the foundations of which are presumed to be sound and based on science -social, economic or political science- or on faith. That way we have classical liberalism that is based on a certain economic theory and a theory on human nature; fundamentalism that lies upon faith and practically all the doctrines we are familiar with. In the second type of starting point, it is intended that the development of the theory be divested of any partisan ties. Evidently, the idea of justice of justices belongs to this group. The notion prevailing here is that of impartiality. But, evidently, it is about original impartiality, which proposes an impartial consideration of the different honest partialities; i.e., of the different visions about justice.
In truth, this type of starting point is not absolutely stripped of a certain notion about things –it would be difficult to imagine something that could be-. But the aim is to achieve a maximum degree of authentic neutrality. Faced with the alternative of choosing as a starting point of a theory of justice any of the visions that are known about humanity or choosing the path of impartiality, I would opt for the latter. Why?
The answer actually implies a vision of the world. But it is a vision of the world that is inclusive of the other ones, that allows validating, at the same time, a wide range of reference points; that is to say: particular and social notions of justice. This vision of the world may be visualized as a sort of theory of relativity applied to ethics. Different from the postulates of classical physics, Einstein’s relativity showed that all the reference points are equally valid with no contradiction among them. The individual that contemplates time and space from the star Sirius sees it differently from the individual that contemplates time and space from our planet. But from this it cannot be inferred that one of the two observers is wrong. On the contrary, neither of them is. The vision of the world underlying our theory about justice provides precisely that certain societies may find its optimum in several conceptions about the world and that, in fact, the validity of the economic, social, psychological theories may vary according to the human group in question. In the human space and time, the truth of the humanities can vary.
But here comes an essential warning. Conversely to what is usually believed, the theory of relativity of Einstein has deep absolutist implications. José Ortega y Gasset has written a brief and brilliant essay about this, from which I extracted the following paragraphs:
“This is the multiform error which should be rectified first and foremost. Einstein’s relativism is strictly inverse to that of Galileo and Newton’s. For them, the empirical determinations of duration, placement and movement are relative because they believe in the existence of absolute space, time and movement. We cannot reach these; at the most we will have indirect evidence of them (for example, centrifugal force). But if we believe in their existence, any determinations that we may in fact have will be disqualified as mere appearances, as values that are relative to the reference point the observer has. Consequently, relativism here entails a defect. Galileo and Newton's physics is, say, relative.
Let us suppose that for one reason or another, someone believes it necessary to deny the existence of those inaccessible absolutes in space, time and transfer. At the very same instant, the specific determinations, that before seemed to be relative in the ill sense of the word, and that are now free from the comparison against the absolute, become the only determinations that convey reality. There will no longer be an absolute (inaccessible) reality and another relative one compared with the former. There will be a single reality, and that will be the one approximately described by positive physics. Indeed, that reality is the one perceived by the observer from its position; thus, it is a relative reality. But this relative reality, in the example we have used, is the only reality that exists, and, while relative, it will be the true or -what is the same- the absolute reality. Relativism is not opposed to absolutism here; on the contrary, it becomes one with it and, far from suggesting a defect in our knowledge, it provides it with an absolute validity.
Such is the case with Einstein’s mechanics. His physics is not relative but relativist, and thanks to its relativism it acquires an absolute significance. …. For the old relativism, our knowledge is relative because what we hope to know (the time-space reality) is absolute and we do not succeed in it. For Einstein’s physics, our knowledge is absolute; reality is relative.
Thus, it is advisable, above all, to highlight as one of the most genuine features of the new theory, its absolutist tint in the field of knowledge. … The laws of physics are true, whatever the system of reference used, that is to say, whatever the position of observation is. … What happens is that one of the qualities inherent in reality consists in having a perspective, that is to say, in being organized in various ways so as to be seen from one place or another. Space and time are objective ingredients of the physical perspective and it is natural for them to vary according to the point of view involved. … It should be noted that perspective and point of view acquire an objective value, while until now they were considered distortions that the individual imposed upon reality. Time and space are once again, against Kant’s thesis, forms of what is real. … Einstein’s theory is a wonderful justification of the harmonious multiplicity of all points of view.” It should be added that, notwithstanding the equivalent validity of all points of reference, the universe presents certain absolute irregularities. Likewise, the diverse notions about the good and the just do not alter the fact that –analogously to what happens with the constant speed of light- all those notions stem from a guiding principle that is the affirmation of life and are validated to the extent they defend the premise of the theory: the principle of moral dignity and equality. Consequently, moral relativism is not absolute. But the absolute ingredients of morality are positioned at the foundations of the conceptions and leave a wide margin for variety.
10. Digression: an example about the hierarchy of preferences with an argument by Ronald Dworkin. Now I am in a fast food restaurant savoring the last bite of my hamburger. I am sorry I did not bring more money to buy another hamburger because I am still hungry. Suddenly, I notice that at the table next to mine there is a gentleman that eats a sandwich without much of an appetite and he still has one more sandwich left. I am sure that I am hungrier than he is. It occurs to me that if justice consisted in a simple equality of satisfaction of needs or desires, I would be entitled to demand that hamburger. But I know it does not work that way.
It does not work that way because equality in the satisfaction of needs or desires is not an idea that could be applied irrespective of the situations that are more general than the specific ones that we can define in our own discretion. My neighbor at the table next to me –who is also interested in political philosophy and endorses the idea that justice consists in certain equality- could retort that while my desire to eat could effectively be more intense than his, beyond that situation, both of us agree on our preference to favor the existence of a certain system of property and personal autonomy. And that if under a veil of ignorance I would not have known whether I would get to be the hungry guest or the satiated guest, I would have never suggested the egalitarian rule that I now propose, because I allocate much more importance to that social order system; that is: personal autonomy and the respect for acquired property, than to the specific satisfaction of a desire at a given point in time.
This case entails the existence of two goods of markedly dissimilar hierarchies: on the one hand, the desire to eat more hamburger in a specific circumstance; on the other hand, the much more general desire to live in a society that is governed by certain rules. In the example, I have assumed that both individuals actually share that more general preference, and it is because of that preference that justice would not authorize an equality of satisfaction limited to the desire to eat a hamburger. On the contrary, justice will continue to prescribe an equality of satisfaction, but applicable to a more comprehensive level: the equal satisfaction of the individuals' desire –identical in this case- to live in a society that would guarantee private property and autonomy. The satisfaction of this preference will entail multiple inequalities; but all those will be assumed under a more general criterion.
In chapter six of “Taking Rights Seriously” Ronald Dworkin has developed an argument with which he seeks to show that the contracts that one would have supposedly executed under certain conditions have no moral binding effect whatsoever for us because, in fact, we have not signed them. This aims at undermining the foundations of the contract method –like the one Rawls uses or the one used here- consisting in defining justice starting from what would have been agreed in a certain situation, such as the original position. Dworkin contends that the Rawls agreement is a hypothetical agreement, and hypothetical agreements cannot constitute a sufficient basis of the equity of their contents. He further illustrates that argument as follows. Let’s suppose that on Monday I did not know the value of a painting; if on such Monday you had offered me $ 100 for it, I would have accepted. On Tuesday I learnt the painting was valuable. You cannot argue that it would be fair that the courts would oblige me to sell it to you on Wednesday for $ 100. Perhaps I am just lucky that it did not occur to you to buy me the painting on Monday, but this does not mean that in the future I may be subject to coercion. As I see it, the refutation of this argument lies precisely in underscoring the fact that there are different levels of desires or preferences. Why is it that it would not be just to force the individual to sell the painting for $100? Because even if on Monday the owner of the painting would have agreed to sell it for that amount, it is also feasible to suppose that the two characters would have agreed –above and before the hypothetical transaction- a rule under which this type of deals acquire legal significance only upon the execution of an agreement. It is true that I would have sold you the painting for $100 on Monday; but, would you perhaps accept to be demanded to comply with obligations that you would also have agreed to in previous days? The impartiality criterion and the method of thinking a hypothetical contract is applicable in the case. Simply, the example is framed in a specific or lower level of desire. It is true that I want the painting at a low price; but, above that, I want rules on legal certainty to exist.
11. The particular notions of justice. The question: “how would we want the rules of the world to be if…?” admits a quite broad margin of honest answers. After reflecting on the issue, we may not share many aspects of our conclusions. This is precisely because those conclusions will reflect the legitimate differences that we have in our respective visions of the world, of man, of what is advisable. Our notions about justice stem from visions of the world that adopt a position on the following topics among others:
a) Conservatism or reformism. Advisability or not of revolutionary change. b) Legalism or legal informalism. The value of abidance by the law against the right to civil disobedience for certain cases. c) Individualism versus communitarism: what are the ideal frameworks for human fulfillment? d) Appropriate environment for the applicability of an appropriate political and social order: secessionism versus world governance. e) Economic laws. What are the causes for the “wealth of nations” and persons? What are the relationships between the allocation of wealth and growth? f) Causes and effects of violence. g) Degree of relevance of the psychology of people in the social, political and economic dynamic. h) Degree of personal responsibility for our actions. i) Impact of criminal punishment and education on human behavior. Is it not possible to rehabilitate certain criminals? Who is the victim and who is the victimizer? j) International economic justice. What are the causes of economic undevelopment in some countries and prosperity in others? Colonialism? Idiosyncrasy? Chance?
Every one of these topics must include a vast “etcetera”. Additionally, this list is just a small portion of a list that could be infinitely longer. Let us take it as a not restrictive sample of items that, when on the table, trigger diverse positions defended by reasonable persons. These diverse positions correspond, not by chance, with different ethical beliefs.
In any case, the broad range of reasonable positions on the mentioned topics does not take away from –actually, it makes it evident- the question about how we would want the rules to be. That is because the question acts in all cases as a filter that allows identifying the good faith political or economic conceptions; that is to say, the positions endorsed regardless of the situation of their particular advocate. That way, we have a criterion to distinguish a good faith economic liberalism from the one that is not in good faith; the same holds true for collectivism, nationalism, the "hawks" and the "doves," those defending human responsibility and their deterministic opponents, etc. For example, those arguing for economic liberalism in good faith consider that the countries as a whole improve with the free market they propose, to the extent that you would like to live in an economically libertarian society even in the absence of knowledge about the conditions under which your life would commence. Those that defend in good faith the importance of living in an environment marked by the communal element, the national element or the culture of their tradition, are blind with respect to where their geography would be located in the world. Those that support economic egalitarianism in good faith, do so thinking that they will probably have the will to make efforts and talents that are higher than average. Those that in good faith claim for a primarily repressive criminal law system, or those that advocate a criminal law that is fundamentally garantist, do so taking into account reality as a whole, now knowing which social class they will belong to, or whether they will end up being the victims or the victimizers. And so on.
But in addition to good faith, the impartial assessment that we are obliged to make by the question about how we would like the rules to be contributes a significant degree of sensibility and prudence. The contemplation of universal possibilities raises our awareness about the non-advisability of jumping to conclusions; prejudices can turn against us. In this sense, the effect of trying to unravel the meaning of the positions defended sensibly and in good faith is a mitigation of the most extreme aspects with those really presented when those positions are defended on the basis of convenience or situational reasons. Good faith economic liberalism (the one that is entitled to compete in the debate about general justice) probably does not allow the extremes of poverty that we see in various countries around the world: nobody would want to be subjected to that kind of hardship; much less so a liberal economist. Good faith nationalism allows autonomy and even the secession of communities rather than legitimizing wars of aggression or hegemonic policies; nobody would like to see their culture be oppressed; much less so someone for whom such culture is fundamental. And so on.
As we can see, for the justice of justices, a system that is rather utilitarian or egalitarian or liberal or “communitarian” may be consistent with justice or it may not be. That depends on the degree of correspondence of each of those systems with the ideology that would emerge in a certain time from the democratic procedure conducted among honest participants in the deliberation.
I maintain that those ideologies tend to agree with the content of the constitutions of the different countries, where they result from general consensus and are not imposed by a powerful minority. In fact, comparative constitutional law shows the existence of a variety of constitutional texts with different axiological shades. From the viewpoint of the justice of justices, most of the political constitutions that are in force around the world today are legitimate because they are compatible with the set of rules provided by the Universal Declaration of Human Rights. Of course, there are to important blights that are closely related, which preclude the single existence of legal texts from being equivalent to effective justice: outright non-compliance with their provisions and the programmatic nature that is usually attributed to their most valuable principles. But this serious problem, which deserves a separate treatment, deals with what to do in order to materialize what we believe to be correct.
John Rawls coined the name “decent societies”, to make reference to all those that, while not precisely consistent with the ideology of Western liberal democracy, specify correct political and justice-related conditions, including the right of all their members to substantially participate in the political decision-making process whether through associations or groups, thus maintaining the respect for human rights. I believe that the idea of justice of justices provides an appropriate framework to understand these legitimate diversities.
12. Justice, preferences and gradualism. In order to identify the composition of the particular conceptions about justice it is necessary to bear in mind the manner in which wishes and human reality are generally presented: gradually.
The idea that reality must be assessed by reference to gradual progressions, to continuities, sheds immense light on the cases that justice is called to resolve. When in any case presented to us, we try to identify the variables at stake and assign them hypothetical extreme values, we note that the solution that we consider just is not defined based on simple concepts that are strictly demarcated (“need”, “effort”, “responsibility”, “property”, “autonomy”, etc.), but they need a discussion on the facts about the degrees to which such concepts are shown in the specific case.
To the extent that the gradualist approach to reality better allows addressing the issue of preferences and their hierarchies, it contributes a fundamental ingredient to the general notion of justice: a principle that tends to ban the extremes in avoidable suffering, which is a principle that is supposed to form part of any particular concept of justice.
To visualize what gradualism means and to recognize its application to the theory of justice, I would like to go back to the example of the restaurant and the hamburgers. In that case, both individuals –above their occasional desire to eat more hamburger– subscribed to a preference of a higher level for a private property system and personal autonomy, typical of the liberal notion of justice. Now, we can identify one of the variables of this example –hunger- and subject it to a gradual progression. We can even go so far as to suppose that the individual that wishes to eat the hamburger of his neighbor is about to starve. In that case, we would see that the idea therein described generically, that both individuals prioritize living in a private property system over satisfying their occasional desire for food, is no longer valid. On the contrary, in a case like that, the just solution tends to give the hungry individual a preferred right to claim his indispensable hamburger. Where does that tendency come from? One thing is to be hungry and another thing is to be about to starve. Thus, a preference to satisfy hunger, in our particular conceptions, may not have an intensity or hierarchy that is determined in the abstract, but admits multiple levels of hierarchy in a gradual scale that corresponds to the different possibilities of reality. No liberal, when faced with the question that leads to the particular notion of justice, would accept the possibility of starving to death when that is avoidable, except in exceptional cases of self-infliction. Next to the importance that his conception gives to negative freedom and to private property rights, that liberal will also defend the right to minimum but certain rights against starvation. Whether we are rich or poor, we can in good faith prioritize living in a free market society. In fact, millions of people in the world do so. But that priority is defined with respect to other wishes, present or contingent, and such wishes may become needs that are so pressing that we would probably say that, in those cases, these wishes are much more important to us.
13. The justice of justices and human rights. The ideas about justice that we have discussed take into account the appraisals and beliefs of each and every person involved. These variables are fundamental for any sensible theory on justice, and are actually implied in all those ideas, though many times obscured under other notions. Here, we examine these variables and the need to consider them, and we admit that to the extent the appraisals and beliefs of men diverge, their ethical notions will also differ and there will be no other way but to find a fair equilibrium among them. Thus, justice in one society does not necessarily equal justice in another society; and we further infer that acting with justice in Ancient Times was not the same as acting with justice in our contemporary world. Unless someone intends to impose a certain vision of the world –or that some day we all come to an agreement as to how things work– there is no other option but to recognize this variability.
So far, we have stressed the differences that may arise from personal notions, but it is now time to study the aspects that they share, as it is certainly possible to find them. This simply means thinking about those things we would all like to protect when faced with the challenge of prescribing the rules for a world in which we do not know where we will start walking the way of life. What kind of rules do we all practically agree upon, when we temporarily detach ourselves from our current position in life? The question is key because if we find common elements in our particular notions of justice we may prescribe concrete principles of justice and claim for them to be valid in every human society in general. This means, in other words, setting the validity and determining the content of the so called “human rights”. This is perfectly possible.
Rawls based his ideas about justice upon the conviction that every man would have the same interest in a series of fundamental goods which, accordingly, he named “primary goods”. Such goods would be individual freedom, income, wealth, prestige, influence. In fact, these primary goods are mainly close to the values of many persons living in constitutional democracies, but I believe that human reality does not allow us to ascribe in general the same interest in each of those goods to all men, and, on the other hand, there are other values not included in the list. Anyway, even if we disagree with Rawls, the conception of primary goods is interesting and it is evident that there is a group of those goods we are all interested in to a great extent. The limitations for the group I propose are less inclusive than Rawls’s suggestions in his Theory of Justice and, in turn, provide more room for the legitimate institutionalization of diverse social and moral conceptions. Although my enunciation of those goods is not merely a conjecture in nature –as there is wide evidence supporting the ideas I will quote– they amount to a hypothesis that needs to be strengthened in light of reality. Knowing human appraisals and knowing what people are ready to give in order to achieve their general goals is essential to determining the rules of what should be.
The core of primary goods that are common to all men today, in my opinion, consists of:
a) The right to life and to physical integrity; prohibition against maltreatment and imprisonment without sufficient cause. (But the notion of sufficient cause should not be necessarily identified with all the guarantees under constitutional criminal law characteristic of liberal democracies, currently questioned by the most conservative sectors of those democracies. The struggle between security and freedom does not have a univocal solution).
b) The basic economic rights: food, housing, clothing, health care, basic education, access to work. The fight for justice finds at this point its main chapter and it is in the right to original property that the claim for economic justice of most people in the world finds its foundation. From an unbiased perspective, we all wish to make sure at all costs that when we come to this world we will have certain original property, firstly, upon the value of the natural resources of the planet. (But the extent of social security, the level of economic competition, the degree of balance between maximization and pro rata division of benefits, etc. depend on the dominant social appraisals). c) The right to express oneself. (But the degree to which the actions of those who express themselves may become known within the public sphere and affect other people may be experienced and established in diverse ways). d) The right to assemble, associate and live with any person.
e) The right to move freely.
f) The right to self-esteem conditions, not to be discriminated against or systematically offended.
g) The right to extensive freedom in life and in private actions; the right to profess any faith.
h) The right of groups to establish their other regulations pursuant to the beliefs of the majority, always safeguarding the preceding rights.
i) The right of minority groups to be more autonomous as the public space is increasingly taken and used by the majority.
j) Democracy. Regular and authentic elections, by universal vote. (And this is not equal to the tripartite division of power, a classic feature in Western constitutional democracies.)
k) The right to obtain humanitarian intervention and the protection of the human rights by effective international organizations.
There is no better document than the Universal Declaration of Human Rights to illustrate concretely the principles of justice subscribed to by most human beings. This document, proclaimed by the General Assembly of the United Nations in 1948, is a perfect example of moral universalism and therefore, at the same time, it is dedicated to pluralism and diversity. The human rights system that the Universal Declaration of Human Rights recognizes “as a common ideal toward which all peoples and nations should strive” is compatible with the critical topics of human condition: firstly, life, physical integrity, freedom of movement, security. Also the precious aspects of private life, the family, the domicile. Freedom of thought, conscience, and religion. As to the economic aspect, individual and collective property rights, and essentially, basic economic rights: social security, work, health care, food, clothing, housing. In the political realm, the will of the people as the basis for public authority, and the obligation to hold regular and authentic elections. Finally, the fundamental stress on the fact that teaching and education should foster the respect for those rights and liberties, favor understanding, tolerance and friendship among nations and ethnic and religious groups. My proposition is that if asked how we would like the rules governing the world to be, if we did not know who we would be in such world, we would all advocate the effective application of the principles, rights and duties set forth in the Universal Declaration of Human Rights. But unlike the States worldwide, the majority of which also proclaimed this Declaration, citizens around the world would demand the effective application of all the provisions contemplated in said Declaration.
14. The right to original property. I will dedicate this chapter to the right to original property given its extensive lack of application worldwide and the relative newness of such notion.
I intend to show an essential point in the impartial agreement among men and common to the particular conceptions of justice: every person must have a right to original property upon the economic value of a portion of the natural resources of its society, equivalent to the right held by other contemporaries. A just world demands that each human being coming to that world have a right to a certain portion of economic wealth. Such right to original or initial property is the main expression of the basic economic rights which as human rights are to be enjoyed by every person by the mere fact of being such. On the contrary, the widespread dispossession affecting millions of people is the most evident and most overarching absence of justice in our civilization.
First, I suggest that we build a simplified model, imagining a first man on Earth. To make it simpler, let us assume that Earth is exclusively made of one small island which belongs in its entirety to this single inhabitant. Under these conditions, there is no problem related with justice, or nothing that would prevent our man from disposing of whatever he finds in his way. But now let us assume a second man appears: someone with approximately the same wishes and sensitiveness. This appearance brings the need to invent a system of rules. At this point, we are interested exclusively in the matter of property. What would be just? (To answer this question let us assume the first man has not produced any wealth so far, through work or otherwise. Natural resources remain untouched and have not been transformed in any way).
Actually, there are endless options. On one end of the spectrum, it may be argued that the whole of the land and wealth belongs to the first man, and on the other end of the spectrum, it may be argued that the whole of the land and wealth should pass to the hands of the second man. Between these two extremes, there is an endless number of intermediate options. Intuitively, we may discard the second alternative and any other which implies giving the second man any greater portion than the one given to the first man. Thus, as far as our discussion is concerned, there are two basic and opposite options:
(a) the first inhabitant must continue being the owner of the whole island and the natural resources on it;
(b) the island and the natural resources on it must be equally divided between the two men.
If we now imagine what the result of a prior deliberation between these two people would have been, if we consider that they could not have known the situation in which of the two situations they would be, it is evident that the just solution is (b): the island and the wealth on it must be equally shared. This would be the honest and unbiased mutual agreement between the two individuals. It is what both of them –and each of us- would minimally want in connection with the economic rights on the “island” (or in the state) to which they –we– belong. And this is why the justice of justices provides the foundation for this basic right.
In fact, the basic economic rights –and particularly the right to original property upon the value of natural resources– are based upon the idea that all the particular conceptions of justice defend them as a priority. If we were certain that we would be reborn in unknown circumstances, we would undoubtedly wish to have a system of rules ensuring the basic economic resources for our life. In our particular conceptions of desirable rules, we differ to a great extent as to the allocation of the goods produced by man. But we will surely come to a solid agreement with regard to the goods existing without human intervention. Thus, we would all tend to advocate the equal distribution of the economic value of the land and the natural resources of our respective societies. This is an unobjectionable minimum.
If we imagine the beginning of a new existence in any corner of this planet and under a series of unchosen circumstances, we will reasonably conclude that the natural resources belong to us all equally, and that we all have the right to dispose of our share. Is it not arbitrary that something as substantial as the distribution of basic wealth depends upon purely fortuitous events? What is it that determines that the person who gets to a place first by mere chance is to become the owner of such place? Consolidating the arbitrariness of events occurring in a certain chronological order by mere chance implies attributing deeply uneven rewards and responsibilities with no justification. It is evident that if in the preceding example of the island the first man withheld the property, there would be a need for the second man, in order to survive, to offer his labor to the former in exchange for what they ultimately “agree upon” for such services. This “agreement” will surely provide for an extremely low compensation for the worker, as his need to reach an agreement will be highly imperative compared to that of the owner-employer, which will allow for the latter to control the negotiations. And it should be noted that this circumstance would amount to an additional benefit for the first inhabitant, even compared to his initial situation.
As the hypothetical participants in the deliberation do not know when they will be born, they consider the probability of not belonging to the first generation, and thus, they will plainly reject the conception which considers appropriation and inheritance the exclusive source of absolute property rights. As appropriation is only possible in the first stages of civilization, if an unconditional property right were granted to the appropriating person –or to his heirs- it would be most likely that vast portions of the species suffer dispossession resulting from such event. Thus, appropriation is only licit to the extent it does not damage the original property rights upon the natural resources of the planet to be enjoyed equally by every human being. Participants in the deliberation will neither permit their property rights to be determined exclusively by reason of inheritance. If such were the case, their situation would only depend on the good or bad fortune of their predecessors.
No one in his right mind would run the risk of losing everything and be left in an extremely adverse position not only in the economic aspect but also with respect to the negative effects such position may have on life and the possibility of getting by in the world. People may have different opinions and attitudes towards economic matters, but it is reasonable to assume that everybody is eager to avoid poverty. The rights of life, freedom of movement and physical integrity, not to mention the rights to freedom of speech or freedom of worship, may come to nothing unless there is a minimum material assurance for the individual. Life has a material dimension, without which life is unviable. Such basic economic conditions are consubstantial with human dignity, even more so to the extent to which the planet we live on and the technical and scientific achievements forged throughout millenniums that form part of the shared heritage of humanity allow them to be available to everyone.
Regarding the question of whether nationality will have an influence on the magnitude of the original property right, the answer is affirmative. I suppose the particular conceptions of justice in general tend to measure economic rights by reference to the national society to which one belongs, and not as a portion of the planet’s resources considered as a whole. This is so because most people want national societies to be maintained as well as their decision-making environments, since among their ideas about what is good, belonging to a political association appears as a high-ranked aspect. This does not negate the fact that the extent of the original property of the members of the poorest countries may be enlarged based on an important principle of global economic justice: the duty to receive compensation for the damage caused to the peoples who suffered an economic plundering whose effects have extended until today. This is discussed in paragraph 19, (b).
Last, the right to original property refers to an economic quantum; it is not a tangible good or group of specific goods. Besides, given its nature as quantum, it is possible that the various conceptions of justice find different justifications for such right. However, I believe that regardless of the form of distribution, at least the economic value of the natural resources has to be allocated equally and to every person by way of original property. The political systems which ultimately allow everybody to access that economic quantum, although justified by a different notion from that of original property, respect this fundamental right. Those which do not do this, violate such right. As the economic right to original property is a human right as hierarchical as the others, and given that the honest conceptions of justice extolled by people in general would not qualify it as a “programmatic right” but rather as a fully operative one, the international instances of protection of human rights should take part as well when violations in this regard are observed. Starvation and the rest of the scourges caused by extreme poverty, many of which affect mainly children, belong to the same category as the violations of “first generation” human rights. The spread of political democracy worldwide is welcome but it will have to be, in Jefferson’s words, a democracy of proprietors. The same efforts must be used in fostering both of them.
15. Impartiality, political liberalism and pluralism. I want to give thanks to the divine Labyrinth of causes and effects For the diversity of beings That form this singular universe, For the fact that the poem is inexhaustible And becomes one with the sum of all created things And will never reach its last verse And varies according to its writers.
(“Another Poem of the Gifts”, Jorge Luis Borges)
When we imagine that we will be reborn in some unknown geographical and temporal circumstance, we are aware of the possibility of being part of very different groups. We know that we are born and we grow up closely related to certain peers, with whom we form a family, an entity which, as we know, may adopt different forms but which usually presents the close affection among its members as a common feature. We also know that the family is integrated into a larger human group. We know of the existence of communities, ethnic, national, religious, and linguistic groups, etc. We are aware of the diverse life projects existing and we know about the multiple sources of enthusiasm in connection with these projects. With all this, it is necessary for us all to affirm a principle of pluralism allowing for the realization of indefinite group life projects –national, religious, political, economic, etc.– subject to the respect for the other fundamental rights we are all interested in assuring. The traditional imperialist theories of justice, such as Rawls’s, are associated with a conception of liberal political philosophy. This political liberalism tries to show, and prides itself on, the fact that the rules of the game it proposes are not slanted towards any conception of the good in particular; but allow for the coexistence of different forms of life, both at the individual and collective levels. However, the truth is that the liberal rules draw a line between what is private and what is public in life, a line that may seem arbitrary to many. Each of us –each person, each group- is entitled to do whatever we want with our life, but may not interfere with the life of others, in a specific sense. This maxim, which in principle appears to be consistent with justice, may not in fact be specified in terms of scope and, therefore, it immediately finds multiple exceptions that are authorized even from the liberal perspective, generally labeled a permissible or reasonable paternalism. Under a precise analysis, there is no basis to support a limitation between what may be imposed upon others and what may not, except by reference to our rules based upon the particular visions of justice. When these visions compete in a democratic process, the result may not be consistent with the typically liberal model. Many people need a public environment where they can find comfort and a space for expression as required by their sense of belonging; and the development of this environment is at variance with the classic political institutions of liberalism and the “neutral” state. It is precisely that one meaning that liberalism ascribes to the general statement that nobody may interfere with the life of others, namely: in a private environment you may do as you please, but in a public environment you will have to accept circumstances you may not like and which may even be hurtful to you. I conclude then that the principle of just pluralism is somewhat different from the definition of that principle according to the liberal conception. Pluralism must mean that each society is entitled to organize itself in the manner it chooses, provided the fundamental rights mentioned above are observed. The form of organization selected by a certain society may well be a blurred image of the intended clear border separating the public from the private environments of life, as presented by the political liberalism. The principle will never permit the oppression of minorities, as just pluralism equally allows minorities to pursue their own course. In cases where majorities and minorities coexist mingled in the same area, the majority has the right to regulate the public sphere; and such right is proportional to the number of people in that majority. Nevertheless, the greater the intentions of the majority to move forward, the greater the compensation owed to the minority, whether in the form of facilities for the organization of autonomous spaces or for migration and even secession. The mutual respect that is to be ensured among the different social, ethnic, religious, etc. groups, does not necessarily means ensuring their coexistence within the same political association governed by neutral institutions, but also admits the creation of “non-neutral” political associations to the extent of the economic rights of the members, and provided there is freedom for the people who may have a dissenting opinion to do likewise under the same conditions. Where coexistence definitely fails, secession is the way in which the autonomies of the two groups with conflicting intentions may be expanded. Any attempt to provide a more precise definition of the implications of the principle of pluralism chosen by impartial human beings leads to the field of one of the strongest confrontations offered by contemporaneous political philosophy: the debate between liberals and communitarians. It is well known that the communitarian school of thought has criticized the liberals because in the development of their principles of justice and morality, they ignore that each person is not an isolated being that can live separate from one another. In fact, things are quite the opposite: each person belongs to a certain community and is inevitably conditioned by the traditions of, feelings for, and loyalty towards such community. The human being, rather than an “individual” –meaning an atomistic conception of man– is a social being, a being who may not live other than within a wider system of intersubjectivity, always characterized by the presence of particular ways of facing the basic challenges of life and of designing human institutions. Moreover, this means that each community has its own system of values including a certain conception of what makes a life good and which qualities imply human virtues and which do not. These conceptions may be decisive and will surely prevail over abstract principles of justice, or more specifically, the liberal principles of justice, as they proclaim a neutral attitude by the state that is incompatible with the desired advancement of the particular values and conceptions of the community.
We have already admitted that communitarians are right to a considerable extent. And I believe that, paradoxically, their most powerful tool to persuade those who, like me, have a liberal background is appealing to the main source of the moral discourse underscored by liberals in the political arena: impartiality, and its claim for universalism.
The truth is that liberals try to defend a position that comes from their partial point of view. Is it just a coincidence that liberal philosophers in general live and write in Western democracies? Is it not true that liberals are relatively indifferent to religious or national feelings of belonging? And is it not relevant that in general they have a “rationalistic” view of the universe? Wouldn't they endorse other doctrines that are quite different from "neutral" liberalism if they firmly believed in the existence of a god that promulgates certain rules of ethics and that rewards with eternal life those who live their lives according to virtue? And is that feeling of the liberals of detachment and independence from the most primary bonds of the community, the family, the neighborhood and the land, not correlated with a stronger stress on economic values?
If egalitarian liberals –such as Rawls– may criticize the libertarian liberals –such as Nozick– alleging that the latter proclaim a rather fallacious conception of freedom, which does not take the fundamental rights of men seriously and which, despite its naive appearance, has a clear bias in favor of those with greater economic power and is detrimental to the less advantaged: communitarians may also criticize liberals in general on their views of neutrality or autonomy, stating that notwithstanding their innocent appearance, their views are tendentious towards the liberal conception and harmful for the survival of particular values and institutions. If egalitarian liberals have risen up against a fallacious conception of freedom negating the nature of human right to the right of access to certain economic goods, the communitarians do not want a fallacious conception of state neutrality to undermine their desire to continue living within their society, condemning it to perish in the midst of a shapeless and dissolving pluralism. While egalitarian liberals have shown that the conception of economic “damage” considered by the conservatives is unfounded (for example, the erroneous idea that the economic damage may only be caused through positive actions but not through omissions), communitarians warn liberals that, similarly, the damage caused to the particular institutions is not only generated by actions but also by certain omissions under certain circumstances. The idea of neutrality as to ways and conceptions of life is as deceitful as the idea of neutrality in the economic arena. If the principle of “separate but equal” borders on cynism when attempting to avoid unfair segregation, the idea of “together but different”, proclaimed by traditional liberalism, is also often dull in any attempt to defend the legitimate interests of the cultural minorities. Even if liberal philosophers want to state that the liberal society may be, in Robert Nozick’s words, “a framework for utopia”, as it would allow the voluntary association of people for the furtherance of their own ends, that is not sufficient to defend what communitarianism intends to protect. The framework for utopia may be in fact the framework for dissolution. If the state is neutral and the existence of a community depends exclusively on a rather vacuous “willful intent”, in practice this gradually undermines the particular institutions intended to be maintained. This is an empirical fact. It seems then that this idea of neutrality is in the end mostly biased in favor of those who are relatively indifferent to feelings of belonging such as national, ethnic, religious, etc. feelings., and detrimental to those who are stronger believers in these aspects and less independent to pursue their community life projects. As the egalitarian liberalism condemns the fallacy of praising exclusively the principle of inviolability of the individual demanding instead an effective and real autonomy, this deserves to be applied to the communitarian aspect also. Thus, we may assure a certain group that its institutions will not be directly attacked; but such recognition –though fundamental– will not suffice if the group lacks actual possibilities of developing and maintaining its institutions and community life through positive actions deployed throughout the public sphere subject to the group’s influence. Communitarians are right but only to a certain extent. They also have to face uncomfortable questions. What lies behind some of the multiple facets of the so called “communitarian” ideal? Perhaps the rights of the majorities in the Arab states to subdue minorities, or the right of these minorities to foster their community life project, freeing themselves from that oppressive yoke? And in the United States: the proposals of a greater puritanism according to the Western and Christian tradition, or the vindication of aboriginal peoples? What is the limit to define the existence of a community? What would be the number of members or the degree of power required for a minority to be entitled to “community rights”? And in the violently disturbed former Yugoslavia, what would be the extent of the rights of each of the communities in action? The conclusion will be that, in order to be considered seriously and attempt to contribute to the discussions about justice, the central idea of communitarianism needs to accept a premise essential to commence any discussion about morality –about a morality of a higher level than any possible and diverse particular conception of morality–. That premise is still impartiality and impartiality will continue to lead us to a universalist conception of justice, which is precisely what we need. However, this impartiality and this universalism –genuinely understood– do not coincide exactly with those defended by the liberal conception and which authors such as Rawls in his Theory of Justice or Brian Barry have striven to maintain. Universalism is possible –and necessary– and the impartiality criterion is not only possible but is also the only one that will allow us to properly develop a moral discussion. But in light of a brief observation around us we conclude that not every person or every society gives the same priority to the full spectrum of political and civil rights forming the liberal constitutionalism, and that the alternatives found in this respect are genuine. Therefore, the true universalism, and the impartiality that is its genesis, may not begin by conferring certain specific preferences to people. Instead, to be true to their nature, they need to concentrate on the preferences people have whatever they may be and provided they do not conflict with the fundamental principle of equal human dignity. If classical utilitarianism does not take the separate existence of individuals seriously, classical liberalism does not take seriously the ideas of universalism, neutrality and impartiality it attempts to monopolize.
We do not have elements to affirm and prove the superiority of certain forms of life over others. For example, we cannot show that the life of a person within a tribal structure, typically built around families, is in general better or worse than the life of a restless business man of a capitalist society. We cannot show either that the life of a government employee –with a guaranteed though mediocre salary– is better or worse than the life of a bohemian artist who does know where he will spend the night; or that urban life is better or worse than rural life. We cannot demonstrate that risks are better or worse than certainties; or that enjoying the present is worthier than securing a future, etc. In any case, facts seem to indicate that within endless possible social, economic and political structures, people may feel that their lives are good and worth living. The causes for enthusiasm and feelings of worthiness are multiple and human groups may function satisfactorily in many diverse forms.
16. Bioethics, animals and aliens. The degree of evolution of our moral ideas may be measured depending on the answer to the following question: Who is to be considered? Or, in other words, who or what entities are worth considering for their interests? The more advanced our morality, the widest the group of subjects we consider. This is so because our ability to feel empathy is increased and this means the same as applying the golden rule (“do unto others as you would have them do unto you”) to any entity as desired.
Evidently, many living beings bear an interest in defining what is right and what is wrong, and maybe some day, hypothetical beings from outer space will also have a stake in such definition. Animals, fetuses and future generations are some of the entities that depend to a great extent on the moral judgments we develop. If all of them were able to hire lawyers and lobbyists, the ideas that people currently have about their rights would be substantially enhanced. However, we still have a long way ahead in these fields where most people remain morally dormant. In particular, the precariousness of our ethical sense with respect to living beings that are alien to humanity makes me think that, if some day we fell in the hands of a species clearly superior to us in terms of intelligence and power, we would have to pray for said species to be also superior in terms of morality. Otherwise, if the respective anthropocentric conception of said imaginary species were as purely rooted in them as ours, the future might find the luckiest ones of us presenting a circus show and the less fortunate ones of us in research labs.
The impotence of those whom we treat unfairly today and the fact that they have no voice make it easier for us to comfortably maintain this position, just like that, without even feeling disturbed deep inside. If the Spartacus of chimpanzees were to appear, with several followers behind, things would be different. Yet, our moral value does not lie in accompanying the historical strength or trends, but in rebelling against them whenever doing so is an ethical imperative. Knowing this is the first step to putting it in practice. If the moral behavior is not an end in itself, it is anything but moral.
Looking ahead, and in an attempt to walk in the appropriate direction to expand ethics, there is nothing better than looking to the past. History has gradually eliminated categories built upon criteria such as race, religion, affiliation, gender or socioeconomic position, through which some attempted to justify that certain beings did not deserve the same consideration as those belonging to the dominant “species”. For Aristotle, for example, slaves did not count. Unlike “free men,” slaves were not capable of holding rights. However, it is interesting to think what the Stagirite would have said if he had been told he would be reincarnated in one of those slaves. I suppose he would have moderated his judgments the same way we would if we were told we might become animals, entities which do not really count for us.
The questions posed by bioethics, as well as the issue of justice for animals, are complex and upsetting. The progress made in science and the increasing improvements in technology are elements that call for intense discussions. Where does human life deserving respect begin and where does it end? What is the nature of embryos cloned and frozen by means of assisted fertilization techniques? What will we do with therapeutic cloning? And what about the rest of the animal kingdom?
The justice of justices has answers to approach these issues and many others that may come up. The advantage of the justice of justices is that it allows us to put the struggle for definitions in the semantic field aside and it is also a good antidote to prevent counterintuitive solutions.
To find the answers provided by the justice of justices we need to ask ourselves what rules we would like for a world in which we will imaginably be reincarnated in an absolutely uncertain entity. This means that we need to do a mental exercise and, with the maximum degree of realism possible, think that in the future we might be rabbits, cows, frozen embryos, fetuses in diverse degrees of development, patients in coma, sick people in need for an organ transplant or women who became pregnant involuntarily. In theory, we might also imagine that we will exist again in the form of alien beings or as any portion of the reality we choose, such as a stone or a river, although these exercises will lead to an irrelevant outcome. The best alternative to generate moral responses for our questions is to step in the shoes of the other or put ourselves in the position of something else – as preferred. If we intend to think about the common issues of human justice we have to imagine that we will cease to exist as we are today and think that, instead, we will be conceived in an uncertain womb, under uncertain conditions. To approach the burning issues of bioethics, such as abortion, human and therapeutic cloning or the definition of death, I also need to develop a mental image and think that I will cease to be who I am and in turn I will become any of the entities or people involved within the largest imaginable spectrum.
The honest and personal introspection required by the justice of justices substantially widens our perspective. From an authentic and particular cosmovision of the world, each person will be faced with the immense challenge of being unbiased, which is the challenge posed by morals. Whatever our ideas about the world and life may be, our judgments will be conditioned by moderation, equilibrium and the complex consideration of an entirety that is sometimes uncertain. Rarely will we be capable of stating our judgments at the speed, and with the radicalism they we employ when providing a reply in our discussions; on the contrary, those judgments will require deep meditation and will demand that their temporary nature be taken into account. Only a few of us are certain that we know it all, and as any newly-acquired knowledge might modify the rules we deem appropriate, we will be interested in being able to change our position and in moving forward towards a more integral perception of reality.
However, despite the difficulties we may face in our personal deliberation –and these difficulties show the natural complexity of justice and the injustice of radical solutions– each one of us may suggest a set of rules desired for a world that would receive us in an unforeseeable way. These rules will differ to a certain extent among people. The challenge of honestly imagining being the other or something else, even if the deepest meditation possible is applied to the exercise, generates different responses. Our conceptions of things unfailingly influence our beliefs about what is right and what is wrong. But what actually matters is that we be honest with those conceptions and proclaim them in the knowledge that we might be in any point of the universe whatsoever. This duty of being coherent is good as it undermines our moral prejudices or our judgments influenced by our convenience, and turns them into true moral judgments.
Each response amounts to a particular conception of justice and this conception will be entitled to compete with others on an equal footing.
Any given society must set a system of rules that would result from the democratic consideration, under equal conditions, of the moral conceptions of each of its members.
The approach of the justice of justices saves us the work of having to discuss definitions and set arbitrary limits in matters perceived as continuities rather than as given categories found in nature. In turn, that approach makes us consider reality beyond any words or concepts. It is not particularly problematic that some people prefer to affirm that a fetus in the third quarter of pregnancy is not a “person” or that a dog is a “thing”. The division between presumptive objects and subjects capable of holding rights is also moved to secondary importance. Again, what matters is the concrete way in which each of us addresses this issue imagining that we might be reincarnated in any of those entities. Honesty, then, is the critical point in the justice of justices and the burden of credibility falls on us all equally.
The justice of justices, within the variety of positions it enables, shows a fundamental principle: the principle of affirmation of life. According to this principle, any being interested in living is entitled to a fulfilling life according to its possibilities. This is in line with the ethics of “Reverence for Life” of Albert Schweitzer: “I do not care whether animals are capable of reasoning; I only know they can endure suffering and thus I consider them my fellow beings.” Life is the rule; death is the exception that calls for special justification.
Some general consensuses deriving from the principle of affirmation of life, defined in light of the approach of the justice of justices, are:
(a) Animal suffering must be prevented. Today, no scientist would dare say that animals do not feel pain. In fact, there are experiments where pain is included as part of the premise: for example, those exploring how animals react to physical or psychological suffering. The more we go down the evolution scale, the greatest the disagreement. However, there is absolute consensus with regard to mammals and birds, and there is also quite abundant evidence to that effect in connection with the rest of the vertebrates.
In my personal conception of justice, I believe in the need to foster measures to improve the life of animals, even through our intervention in the fights and killings among them. The same as the arguments based on natural selection or the trophic chains are inadequate to define human ethics, in my opinion, they are also useless in connection with the rest of the animals. The limitations of reality are always smaller compared to the predictions of those who advocate the status quo.
(b) The destruction of the fetus –or of other innocent being– sensitive to pain is immoral.
(c) Any cloned being has the same rights as the original. This is based upon the fact that there is no reason for the genesis of any entity; to the extent its creation is completely involuntary for the entity, to influence the determination of its rights. This assertion is compatible with the prohibition of human cloning, and even of other species.
(d) The justice of justices’ focus takes us away from counterintuitive proposals, such as the proposition claiming that every manifestation of life must be preserved equally vehemently. As it is not the same to be a dog as it is to be a microbe, we would like the rules applicable to each one to be different. Human rights include certain rights and the rights of chimpanzees include others. Differentiation here is not due to human selfishness; it derives from the reasonable suggestions of any living being if capable of thinking about justice.
(e) The justice of justices implies, by definition, a pluralist approach. One of the principles people would like to establish, though in diverse degrees, is the principle of personal autonomy: the right to decide with regard to oneself. The principle of personal autonomy may even enable each person to define their own death. This is related to the possibility of living wills. Robert Veatch, a renowned professor of medical ethics at Georgetown University and consultant in some of the most vibrant legal cases in such area, has proposed a “conscience clause” allowing individuals to choose their own definition of death based upon their religious and philosophical convictions. The foundation for the foregoing is pluralism in democratic societies and the fact that it is an issue that makes consensus seem impossible to reach as the perspectives involved are completely alien to a scientific objectivity, which in turn is far from providing answers to the mystery of death remain far from being discovered. Such a clause is a typical example of balanced and continuously mediated solutions fostered by a framework for analysis such as that of the justice of justices.
We are obliged to listen to everyone willing to tell us something or even those who would be willing to say something if they were able to. The distinction between object and subject need not be absolute and is included in the series of aspects to be defined honestly by each one within their particular conception of justice. Communication is not only achieved through words: the most urgent implorations are not keen on justifications, and yet, they are far more justified than many elaborately written claims. We need then to put ourselves in the place of everything and everyone that, if able to, would ask us to do so.
Justice in its strict sense is far from being the first virtue of social institutions, as it is announced in Rawls’s Theory of Justice. You and I could decide to fight a duel. The heads of state of the nations, representing the authentic wills of their peoples could decide to wage war on each other. A group of racing fans and automobile enthusiasts may agree on a set of traffic rules that does not establish speed limits, even in the knowledge of the many fatal accidents that would be caused as a result. A society of individuals that are equally ambitious and selfish will make up a system of open hostility. Apathetic men will form part of a decadent society. A society of dissolute people will agree on their self-destruction. All those decisions may be taken by mutual consent and be consistent with justice, understood in the strictest sense of “impartiality”. A society full of conflict and violence may be a just society if we consider justice in that strict sense. However, much more is necessary if we want to say that justice is the first virtue of social institutions, as Rawls asserts in his work “A Theory of Justice”. We should either expand the notion of justice or state that justice needs to be supplemented by other virtues that are perhaps more fundamental. But, precisely, I think that those fundamental virtues also stem from the idea of impartiality, and that is why it makes sense to include them within the notion of justice. Rawls’s method of the hypothetical impartial deliberation not only leads to the establishment of distributive justice, but also to a certain general conception of virtue which, as such, shows the path to human transformation. Human beings situated in a position of impartiality where they ignore what would be their specific attributes, their position in society, etc. and where they only have certainty about the uncertainty, would not only establish the democratic principle in the realization of their particular conceptions about justice, but, at the same time, and as an indispensable supplement to such rule, they would commit to a more comprehensive task: they would decide to promote a general notion of moral virtue. The veil of ignorance that helps us grasp the idea of impartiality, on the basis of which we can define principles of distributive justice, also enables us to define what the essential human virtues are. Indeed, the fact that the participants of the deliberation are interested in promoting their own ends would lead them to notice that it is advisable to adopt many of the virtues considered as such according to the common sense of the good. The exercise of those virtues leads to a greater collective harmony and happiness, showing the way to survival and development of the species. Conversely, the opposite habits cause general harm and mark a tendency towards annihilation. That is why the shared desires of maintaining the survival of the species, that happiness be disseminated and that our descendants have fortune give rise to rules that are also the subject matter of an agreement created in a hypothetical situation of impartial deliberation. Almost no one desires an apocalypse and we would all want to be able to do our bit so that it never takes place. But especially the fact that justice does not only advocate the distribution of what there is but also its improvement, is highlighted when we are reminded that the members of future generations also deserve to be considered in the hypothetical stage of general impartiality. It is our descendants and the descendants of our descendants throughout the generations to come that with greater determination claim for the realization of positive trends, beyond mere partition solutions. While the men of the present focus on their claims against each other, the men of the future must endeavor, above all, to procure a world worth living in. Their motions, then, aim at improving the course of history and human nature itself. The virtues the fostering of which is agreed to from an impartial position are concord, benevolence and empathy; the most intense expression of these feelings is love. In contrast, the evils that we have to repel are belligerence, selfishness and irascibility. The most extreme expression of all that is hatred. We all desire that our society have less conflict and discord and that the desires of ones are of a nature such that conflict to the least extent possible with the desires of others. They are moral virtues and evils that are universally accepted. From that point of view, the establishment of a society that is really just demands that constructive capacities be prevalent and tendencies towards hatred be limited in the majority of the human beings belonging to it. A just society calls for cooperative relations to prevail over conflictive ones and, in fact, it obliges us to seek concord, endeavoring to resolve any differences through peaceful negotiation and mutual persuasion, gradually restricting the margins for the legitimate use of force. These conditions are necessary to live in a better and advancing world; a basic requirement to achieve intergenerational justice. Just as it is not difficult to find in any society an invariable and recurrent core of moral values, it is not hard to note that the essential virtues commented on here are ingrained in the doctrines of most religions and other sources from which people receive moral values whether directly or indirectly; from group therapy to yoga. Thus, those that are generally recognized as spiritual masters, ranging from Pope John Paul II to the Dalai Lama, agree on the importance of love and the need for this feeling and the attitudes that it triggers to be increasingly present in our character, while at the same time they warn us against the destructive effects of hatred. Now, a notion of justice such as the one we are describing, which attributes relevance to issues related to character or temperament, cannot ignore that the obligations to act or feel in certain ways are inane unless they are accompanied by realistic processes of character improvement. I deal with this topic in the chapter “A better human being is possible”, but for now I will advance that the study of the practices that make us more prone to respecting other people’s rights and to extending them by way of avoiding permanent conflict is more important that an isolated theorization about such rights.
18. The obligation to conciliate, understand and learn. The right of our particular convictions about justice to be considered on an equal footing with those of others also entails equality of efforts to achieve greater social harmony, mutual understanding and learning. As we are all more or less responsible for the degree of virulence of the claims that confront us with our peers and as many of the claims that are radically opposite are defended in good faith by their respective advocates, we all have the duty to describe our convictions in a moderate fashion and with a conciliatory attitude. We are obliged to adopt a conciliatory attitude that would favor reaching a consensus and finding balanced solutions. To the extent we turn a deaf ear to the positions of our designated adversary, we act unjustly, even if ultimately we are more in the right. Balanced solutions do not necessarily entail a strictly Solomonic division of the good subject to controversy, as the rules of impartiality help us approximate the more just result and reveal that certain claims are more just than others. What balanced solutions mean is that one of the parties is probably not totally right in their demands and that in order to facilitate an authentic debate about what the just would be, all the parties should have the right to present their arguments and background and be listened to attentively. Every day life shows us best that rather than theoretical and rigid solutions, what is most necessary for holding a good negotiation and reaching a satisfactory result is the parties' willingness to listen to each other and, more essentially, the capacity that the parties have to experience other people's reasons as if they were their own. The willingness to understand is ultimately the willingness to learn what the other person is experiencing. But more than that is needed. A willingness to learn is needed; with a view to replacing our wrong judgment with other judgments that are more consistent with reality. While to an extent Hume’s statement that what is does not allow us to validly define what ought to be, in the sense we indicate here, the conclusion is exactly the opposite: in practice and to a great extent the debate about what is just is a debate about the facts of reality. Who suffers or who does not suffer? Who made efforts, who did not make efforts, who was not able to make efforts? How do those that we do not know and whose houses and institutions we never visited live? The equal consideration that our conceptions about the just deserve does not guarantee their virtue. Some conceptions are more correct than others as they are based on more true premises. It is necessary then for us to constantly weigh those conceptions, that we test them and that we are ready to modify them. Otherwise, we would be failing ourselves. The greater our knowledge of the world in general, the more qualified our relative impartialities will be.
19. The justice of justices in the world. a) It is evident, like never before, that the entire world needs rules of justice to guide it; rules that are widely accepted and –even more pressing- that are really effective. There seem to be great obstacles to talking about international justice or to attempt to propose a model of such justice. And, indeed, international justice is a hard nut to crack, both from a pragmatic and a theoretical viewpoint. There are two dimensions of reality that are opposed and extreme, where the moral discourse seems to fall short of meaning: privately, in the furtive robbery carried out in the darkness; and publicly, in the relations among the states on the planet. In both cases, force almost unscrupulously displaces morality. Practice shows that moral reasons play a fairly minor role in international relations and it is already an achievement, from a historical perspective, that some influence at least exists. Granted, the human circumstances of justice, of relative equality of power among individuals, are not present at an international level. Additionally, the spatial distance and the knowledge of the realities of the neighbor in terms of numerical or statistical data conspire against the feelings of empathy and, instead, they turn into the ideal occasion to exercise a selfishness that, only if judged by the crudest appearances, is invisible and innocent. But the truth is that the theories of justice make sense, not as explanatory theories, but as prescriptive theories. While vast portions of humanity survive in conditions of horrible poverty and subject to the forces of mercenary armies; so long as it is the strongest power the one that dictates its conception about how life should be led, the prolific development of political philosophy could only make sense if it takes into account that unjust reality and attempts to transform it. The international order is still an order mainly based on force and the discourse of its players is basically made up of lies and hypocrisy. Precisely because of this, it is here where it makes the most sense to be thinking about justice and where justice is most needed. I believe that the justice of justices provides strong arguments for a planetary or cosmopolitan justice, and helps outline its principles. First and foremost, it should be noted that the justice of justices advocates a cosmopolitan justice: one which considers human beings as the main players and holders of rights and obligations, rather than a simple international justice that is essentially structured on the basis of states as the main holders of rights and obligations. This profound conceptual difference is expressed by Jürgen Habermas by stating that “the point of cosmopolitan law is, rather, that it goes over the heads of the collective subjects of international law to give legal status to the individual subjects and justifies their unmediated membership in the association of free and equal world citizens" (in “Kant’s Idea of Perpetual Peace: With the Benefit of 200 Years Hindsight”). In this line of thought, the justice of justices, by addressing individuals rather than political or other associations, proposes structuring the world on the basis of the personal preferences which in a global democracy should be the keynote on which to build a world constitution. This system under no circumstance annuls or could annul the existence of political or any other associations. In fact, I consider that an empirical analysis of the effective preferences of people indicates that the peoples would be given great importance as collective holders of rights and obligations under cosmopolitan law. The motion in favor of a special status for the peoples is far more generalized even compared with the motion in favor of a special status for the families. Thus, in the light of the justice of justices, the general principles of cosmopolitan justice include but are not limited to those enumerated by Rawls in his book “The Law of Peoples”. These principles are: 1) Peoples are free and independent, and their freedom and independence are to be respected by other peoples; 2) Peoples are to observe treaties and undertakings; 3) Peoples are equal and are parties to the agreements that bind them; 4) Peoples are to observe a duty of non-intervention; 5) Peoples have the right of self-defense but no right to instigate war for reasons other than self- defense; 6) Peoples are to honor human rights; 7) Peoples are to observe certain specified restrictions in the conduct of war; 8) Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime. The letter of these principles is very current today. While they are formulated in terms of peoples and while it would seem that it is these peoples that are the main holders of rights and obligations, in truth it is not so. The peoples become the holders of rights and obligations under cosmopolitan law provided they are effectively defined and have been vested with that status by the particular conceptions of justice of persons; just like the concept of family also deserves a special status among the common conceptions of life. It should be noted that principle No. 6 does not only assert the existence of human rights, but also establishes their priority; it is not the persons that are obliged to honor the peoples, but it is the peoples that are obliged to honor human rights, which are preexisting to the peoples. I also believe that in the world we live in, which is marked by an interrelation of causes and effects in all spheres, which is characterized from East to West and North to South by the same extremely serious risks, and where aspects inherent to human nature and destiny are at stake, we as common impartial people would support a global order that, leaving wide margins for peoples and nations' projects, would nonetheless be a guarantee of a general legality given the general evils commonly deplored. Indeed, pursuant to principle No. 4, peoples should not intervene in the affairs of other peoples, but the organization of the peoples does have the duty to do it in certain cases. In fact, the most evident flaw in connection with human rights is the absence of an executive capable of enforcing the principles declaimed in the Universal Declaration of Human Rights and in other related pacts and conventions, prevailing over state sovereignties, where necessary. Additionally, the principle that upholds a stronger global institutionalization is also based on the demands posed by an intergenerational justice; to the extent we note that a fortunate future for all has as essential prerequisite the existence of a general order that limits the tendencies to chaos and destruction on the one hand and restrains the ambition for power and hegemony of any agent on the other hand, for the collective benefit of the global citizenship. I then believe that the tendency towards some kind of world government, for the effective protection of human rights and a sensible administration of global risks, is a cardinal point in cosmopolitan justice.
b) Global economic justice: reasons for equality and for inequality Global economic justice does not require an egalitarian division of wealth, although it does demand a far greater equality than that which exists today. My thesis is that this is the corollary of what practically all of us would desire under a veil of ignorance, though certainly with a varying degree of emphasis. Justice does not get on well with solutions in black or white. Particularly, the justice of justices does not even allow formulating in the abstract a material definition of what is right. In any case, making general assumptions about what people value, it is possible to assert certain essential guidelines as to global economic justice and as to economic justice in a given society. Although these ideas are naturally imprecise, they are far from losing their meaning in a grossly unjust world. There are, then, some principles that lean towards a greater equality, while there are others that legitimize certain inequalities that are consistent with justice. I would like to first make reference to the latter, in order to conclude that, in agreement with those that demand a more egalitarian distribution of wealth, these principles have the highest priority in our present world. One of the principles that is widely promoted when honestly addressing the topic of global justice is the right of peoples’ self-determination. The right of peoples’ self-determination is equivalent to the individual autonomy that we all want to a greater or lesser extent. However, the right of peoples’ self-determination seems to be even more unanimously supported by most people. Things such as the regulation of demographic policies or the possibility to choose what economic system to follow are inherent to the most important preference of peoples: sovereignty. Sovereignty is Isaiah Berlin’s “negative liberty” applied to the peoples and has been valued by all of them above anything else. This right of the peoples to exercise their character and to establish their political and economic organization renders just and accepted any economic inequalities that might arise, as they are the result of these decisions or idiosyncrasy. It is a commonplace to think that justice is only concerned with the distribution of material resources. This bias is unjustified because it leaves aside the other goods that exist and ignores the place that decisions occupy. This bias is unjustly harmful for those that have stronger preferences for economic goods and the culture of production of economic goods. But the idea of the justice of justices is that, just as two people may make different life decisions that are equally authentic and respectable, including making various choices about economic aspects, different human groups may also have dissimilar conceptions about the good that lead to different desires and values in the economic field. In both cases, there is room for differences that are consistent with justice. The challenge is to determine to what extent these differences are just and at what point they are no longer so. The peoples of the world have always had different ways of life and different cultures. They have not necessarily combined their interests for material prosperity, for the arts, for work, for leisure, for dancing, for studying, for religion, for saving, for consumption in the same manner. This has led to different organizations of the means of production, different attitudes towards economics in general and, to a certain extent, to different results. The degree of influence that culture has on the economic development of peoples can be subject to serious and endless debate; but we can readily admit that it has a certain varying degree of it. “Culture matters” is an interesting series of essays edited by Samuel P. Huntington and Lawrence Harrison where the great influence of culture in shaping the economic fortune or misfortune of countries is studied. If such influence is great or medium sized or small is a point that is up to our conceptions of the world, humanity and history. Other philosophers that are as brilliant and well-learned as the scholars participating in the work I am mentioning have dissimilar ideas. However, I will suppose –and I think that majority opinions would support my assumption- that cultural values do play a certain role in the nations' economic performance. Likewise, I will suppose later that a certain degree of influence is also recognized to the history of colonialism and the disparities in international trade. An empirical analysis shows that human groups advocate different conceptions about the good. Of course, the more homogeneous the group, the greater the agreement among its members about the convenience or preferability of certain models of life, and the more legitimate it is to establish an analogy among the various conceptions sustained by the groups and the different conceptions that are in fact believed in by the individuals. I have in mind, for example, in a general and rather vague manner, the indigenous communities. I have not studied indigenous communities, but I dare say that, in general, the interest for a high level of wealth among these peoples is smaller than, say, among the urban American population. The “American way of life” is undoubtedly seen by many indigenous groups –and possibly by many others- as an excessive and perhaps even reprehensible concern about life’s material amenities. Comfort demands an unacceptable detachment from nature. The land where one was born has a significant affectionate value that could not be preserved in a society where in order to earn the largest amount of money possible, one has to wander around the world. These considerations about what are the best models of life are rational and accepted, and include decisions about economic issues. Preserving a beautiful landscape may well be preferred over building extensive productive industries. Undergoing costly operations in hospitals that seem to be hotels and surviving for a few more months thanks to wires and tubes may be despised. Looking into a fire may be much more exciting than driving sports cars. Nobody can promulgate a rationality criterion that indicates that something must be chosen by everybody. If we are genuinely pluralistic, we must admit that each one of these possible options is truly respectable. Economic choices and behaviors are truly respectable too. And although it is hardly possible to attribute a specific idiosyncrasy to each people, or create a precise correlation between their policies and their results, we should not attempt to avoid a debate that may be raised in terms of a reasonable generalization and where it would be possible to contribute certain important scientific consensus. The indigenous communities in the United States seem to be less interested in owning wealth than other social sectors of that country. However, they do have strong economic claims based on undeniable justice reasons. But for those claims to be satisfied it is not necessary to put the per-capita income of these native Americans on a level with that of the residents of Santa Barbara. The claim for justice demands more limited and fairer redress. Indemnification is owed to the indigenous peoples on the basis of the plundering they have suffered throughout history. It does not consist in removing whatever wealth other people could have produced on the basis of their life objectives, but in compensating the damage sustained; which was not insignificant. I would now like to go on to consider the principles that make the world be essentially unfair in economic terms. Let me begin by what has just been anticipated: the duty to indemnify. Where an injustice is perpetrated, the obligation to indemnify arises. The great injustices committed throughout history, the effects of which persist still, deserve to be indemnified. I think that another principle we would all endorse is that which condemns the actions or processes of economic or commercial plundering or abuse and the illegitimacy of their consequences throughout time. From an impartial position, nobody would accept conquest or other economic plundering methods or their validation with the passing of time. If history is written by the victors rather than by the vanquished and, even so, history bears witness to the pillaging performed by the rich countries to the detriment of the poorer ones, the magnitude of such deprivation must have been colossal. To what extent may the current prosperity of certain nations be due to their own idiosyncrasies and merits, and to what extent may it have been caused by such pillaging? Undoubtedly, to a certain extent –that we can and must discuss- that economic prosperity finds its cause in the unjust suction of human and material wealth; and it is to that same extent that damage must be compensated. I am still thinking about the justice of justices; according to which each of us should examine our preferences in the light of a new world where no one knows who they will be or where they will grow up. And I have no doubts in my mind that only a few would accept the virulent degree of inequality that prevails in today’s world and that only a few would take the risk of having the rules of international trade be as abusive as they are at present. Only those same few would honestly accept that the debts incurred by states could be as jeopardizing for the present and future generations as they many a time are. I believe that just as the good faith economically liberal conception necessarily includes a minimum of social security, the same should happen in the global arena, although to a lesser extent. In an imaginary impartial agreement about global justice, all the agents would request that any inequalities were not of a magnitude such that would adversely affect the possibility of the less developed peoples to continue in the way to progress. All the parties would want to ensure that international trade would have more equitable results and that competition was not too destructive for the losers. Although in our particular conceptions about global justice many of us would probably not advocate a social security system like the one required for a national society, we would still like to be mutually covered against serious risks and abuse. Last, there is another fundamental principle that favors a greater economic equality among peoples: the recognition for each human being of the right to original property over a portion of the value of the planet’s natural resources. When we honestly think about the rules of global economic justice we reflect that, regardless of our nationality, each human being should come to this world with certain basic economic rights. Property is one of the indispensable basis for an effective liberation of people and for them to lead a dignified life. As such, an unconditional property right forms part of that basic core of preferences that has to be regarded as common to all human beings. The importance that today’s humanity attributes to the right of peoples' self-determination renders the issue of the right to original property a national rather than a global element, in terms of its vesting and magnitude. In my view –always thinking from the impartial humanity- that basic economic right is one of the fundamental human rights and, as such, deserves protection even at a global level if necessary. A cosmopolitan government should intervene not only in cases of violations to the right to life, to physical integrity, to the freedom of movement or in defense of an attacked people, but also in serious cases of economic injustice, hunger, child mortality and diseases caused by poverty. Consequently, the respect to the right to original property, while measured and awarded at the level of peoples, is an essential guarantee for a greater global economic justice. The other human rights cannot be effectively established in the world unless everyone's basic economic rights are made effective. The right to original property over the value of the planet’s natural resources and over economic goods that would probably be received by way of inheritance if this property right had been respected from time immemorial is a significant guideline leading towards that great objective. It is the pressing objective that consists in eradicating hunger and extreme poverty, which are the ultimate expressions of the injustice of humanity in the 21st century. c) About the justice and injustice of war A just war is only the war that we would support without knowing where or under what conditions we would live. It is the truly necessary war from an impartial point of view and in favor of causes that we would also impartially defend; as it is a war that under a veil of ignorance as to our position in the world we would even assume as something that cannot be postponed. Therefore, it is evident that a just war is an option of last resort. The injustice of a conquest war, of a transculturation war or of a war based on economic reasons is demonstrated by the fact that it is obvious that those who promote it would not do it should they know that they or their loved ones could inhabit the nation to be attacked. On the contrary, a just war would be one that would painfully be accepted even in the knowledge of the possibility of being members of the country to be attacked, since it is aimed at preventing greater evils, impartially considered. The rules for a just war –the so-called ius in bello- are those that we would define if we did not know where or under which conditions we would live. Although there is a margin for us to genuinely defend different positions about war and the convenience thereof, whether they be more pacifist or more bellicose, we would be very careful to legitimize war if we had to be impartial and coherent for the future with our opinions. This frankly strict view that most honest people have about war is reflected, in terms of specific procedures and legitimations to declare war, in the urgent need for a global legal regulation to be effectively abided by all the international players, as opposed to each state deciding on the admissibility of the armed action. The evolution of cosmopolitan law leans towards this principle. Ever since the Kellogg-Briand Pact (Treaty for the Renunciation of War) signed in 1928, wars of aggression have been proscribed for international law. Before that, waging wars was authorized under certain conditions. But as from 1928, the nations that were signatories to the pact agreed to the renunciation of war as an instrument of national policy and undertook to solve international conflicts through peaceful means, permitting military action only for self-defense. Thus, the “right to make war” that was typical of the ius gentium before 1928 was abolished. Instead, there are legal and illegal wars according to whether they are compliant or not with international law, and more specifically, with the need for self-defense. This concept, which is consistent with justice, has nevertheless become dead letter with the advent of the "pre-emptive war" doctrine unilaterally implemented by the Bush Administration against Iraq, in the same way that multiple rules of cosmopolitan law lack effectiveness. Thus, the realization of the principles of justice requires a greater capacity to act at global level. Global citizens are the main interested parties in exerting pressure for the creation of a global government in a world where the risks –ecological, economic, military risks- are growing and increasingly interwoven.
20. Cosmopolitan justice and moral improvement. We have seen that, strictly speaking, impartial agreements do not presuppose any specific position about issues such as risk, competition, conflict and general attitudes and preferences. And, indeed, the world's peoples -large or small- had long subscribed something similar to an impartial tacit agreement that was in force until very recently, the clauses of which were ratified throughout history. As a matter of fact, the essential content of that agreement was deplorable. Briefly, it consisted in attributing absolute priority to the possibility of each nation to exercise its power, whether for purposes of self-determination or for purposes of having an influence on foreign affairs, where that was possible. It seems that the desire for power and hegemony greatly exceeds the concern to ensure a framework of mutual respect and balanced development. It is sad to admit that these are the authentic preferences that the governments of nations have shown throughout history, seconded to a great extent by their peoples. Thus, international relations have been governed by a law of the jungle that was somewhat sincerely assumed by all those interested and barely ornamented with weak legal cosmetics. That agreement about international justice contended that no people had the obligation to do anything for another and, ultimately, that international justice was almost non-existent. In fact, the notion of sovereignty entails that every state in the world arrogates the role of being the highest power structure, and, as such, it cannot be tied to the commitments of justice, except for few cases, that are fortunately increasing, where an effective obligation is assumed vis-à-vis the world’s fellow men. Considering justice as strict impartiality, then, it could be considered that the relations among countries were not as unjust as it would seem as violence, threat, extortion and indifference towards someone else's economic vicissitudes have been historically admitted by all players, in the same way they could be agreed to unanimously by the members of a gang. Therefore, the immense failure of the world lies with the moral improvement of humanity and the extension of the institutions and cosmopolitan justice. The former is a synonym for the latter. The Universal Declaration of Human Rights is, as it is announced in the Declaration itself, the shared ideal towards which all peoples and nations should strive to reaching, so that both individuals and institutions, constantly drawing inspiration from it, may promote, through teaching and education, the respect for those rights and freedoms and may ensure, through progressive national and international actions, their universal and effective recognition and enforcement. A theory of human rights and justice is welcome, because in order for us to be able to say that we want to start a certain journey, we need to know where we are going. But it is also important to have the means to arrive at our destination and have the willingness to do so. The effective universal respect for human rights is essentially a human rather than legal, political, economic or sociological factor. With that premise in mind, in A better human being is possible I even venture to explore the complex nature of the moral character, proposing multidisciplinary and systematic study and practice for purposes of its improvement under the principles of universalism, non-discrimination and self-criticism. By definition, the field of cosmopolitan justice can only be extended to the extent that the scopes of the sovereignties are limited, as at the planetary level, to prioritize sovereignty means to prioritize the natural state. And sovereignties could be restricted if civil societies continue advancing on the right track that is already delineated. To the extent people start to have a feeling of belonging to the global society -to humanity itself- and the scope of their feelings of empathy and their vision of the common risks are expanded, they cease relating exclusively to the selfish and short-term interests of their respective countries or groups of belonging and start feeling that equitable relations among peoples are necessary. Conversely, to the extent people are trapped within the rigid borders of their nationalism, considering their community or national interests as the only relevant ones, history goes backwards dangerously. Fortunately, the need for an effective legal order that acts as a guardian of the most cherished rights of people is starting to be felt. A positive trend of international case law is on this encouraging track and in the awareness of the world’s peoples a tendency has emerged that wishes to revert the real politik of the past millenniums. In fact, when most people today wonder “how would we want the rules of the world to be if we did not know which country we would belong to?", the answer is much more prone to accepting the need for global institutions that will be responsible for protecting human rights and the environment compared to what the situation was like centuries or even decades ago. The nacent globalization of justice is not a mere reflex of the globalization of the economy. It is a step further on the road that humanity has been walking on for millenniums. Contemporary theoretical developments about justice and the inclusion of avant-garde legal principles in cosmopolitan law documents are indicators of a new renaissance of these topics. The creation of permanent international courts is a huge step in this transition. Also a huge step is the fantastic growth of non-governmental organizations devoted to furthering the common good. The development and dissemination of the ideas of justice and moral virtue are not trivial: they are the main tools in order for those who make arrogance their way of life to clearly appear to be committing an infringement and for the generality of people to be able to improve morally. But, above all, these facts are a sign that something has been changing in the mindset of people, and for the better. The moral sense that has always dwelled in human beings prevented the world from being exclusively dominated on the basis of force and arrogance. The challenge is that one day, moral sense stop being the exception, the flag of the resistance, and become our habit and the habit of our world.
(c) Copyright Gabriel Stilman
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