A. Justice The study is influenced out of a longstanding dissatisfaction with contemporary academic thinking about justice, and especially with the estrangement between that thinking and a sense of justice that has been, and remains, widely shared across many cultures since the earliest times of which we possess written records.
In order to pierce the academic bubble within which scholarly conversation about justice has been contained for at least the past several decades, the researcher from the immersed authors from some selected journals, books, magazines, and speakers have recaptured various sensibilities that have motivated people’s ideas about justice over the centuries from some of our notable philosophers: Plato, Aristotle, Augustine, Aquinas, Hobbes, Hume, Kant, Mill, Rawls, and so on.
The researcher hopes that the result of the efforts made by our forefathers will cast some light on the idea of justice itself, as well as unearthing evidence for a history of ideas that some are already been either long forgotten or without delay and unjustifiably dismissed. The English term ‘justice’ (as also the Spanish term justicia, Italian guistizia, German gerechtigkeit, and in Frence justice) is used in different contexts, with so many distinction or variation that it is hardly possible to convey a comprehensive understanding and account to it.
There is an obvious linguistic root in Latin term, as we speak of justice, the term ius meaning ’right’, but this cannot simplify any matter because it too is used, as said earlier, in different nuances or senses. The researcher has listed some terms that offer no more than a perspective on the complexity of the reality of justice.
This perspective is an essentially dynamic character to the science of human rights and of legislation, as we consider, for example, the cases of slavery and of racial integration but apparently it will only be defined partly as the researcher will focus on migration and partly in the social and pastoral character of understanding justice. It is extremely important to the researcher for the readers of this study to realize that justice is a concept with a very long history.
A history which goes back as far as the bible was written and orally passed over generations. Justice is a concept with a history. It means everything that happened to men in the flow of time; history as a study of the past means the attempt to discover and understand what happened insofar as evidence and reflection permit, of all that men have suffered, thought, and done in the entire life of humanity. This is to affirm that it is not necessarily mean to fall into ‘historicism’.
According to Maurice Mandelbaum, he sees historicism as a philosophical effort to explain the fact of change. He distinguishes a historicity of values, i. e. , a belief that cultural values are indigenous to the age that produces them, from a historicism of knowledge, which maintains that truth and falsity must be judged with reference to the time in which they are formulated. All knowledge and all reality will be reduced to the experience of particular historical contexts as we understand and view it by this term.
The presentation of justice which follows assumes that justice is indeed a concept with a history, but also assumes that in and through this history and not outside it or beyond it, it is possible to have access to forms of knowledge and truth which go beyond or transcend the given historical period and which therefore can constitute criteria for justice in particular historical circumstances. This contribution will first of all attempt to revise the key characteristics of justice as such and only then to ask how these are pertinent to the issue of migration in the proceeding chapters.
The structure of the piece will be (1) the biblical background (2) the classical view of justice (Aristotle and Aquinas) and the (3) modern views of justice. 1. Biblical background There are biblical terms that most closely correspond to the modern concept of justice, such as, the Hebrew word zedeqah and the Greek word dikaiosune. The precise meaning of the terms is a highly technical that the researcher needs not to explain further because it comes from various books of Sacred Scripture it really requires thorough guidance of scholarly exegetes.
The researcher only mentioned it to possibly affirm that the biblical concept of justice as fundamentally tied to a relationship, so that injustice, first and foremost is the violation of the relationship between God and his people or the giving of the law by God is to be understood within a context that the covenant bond with Yahweh be established between his and his people. In this case there are some examples to cite from the bible itself, read by the researcher, which will help in explaining how passionate injustice was denounced by the prophets, including the injustice made to foreigners: In Isaiah 1: 17 says:
‘Seek justice and keep in line the abusers; give the fatherless their rights and defend the widow. ’ In Isaiah 58: 6-8 says: ‘See the fast that pleases me: breaking the fetters of injustice and unfastening the thongs of the yoke, setting the oppressed free and breaking every yoke. Fast by sharing your food with the hungry, bring to your house the homeless, clothe the man you see naked and do not turn away from your own kin. Then will your light break forth as the dawn and your healing come in a flash.
Your righteousness will be your vanguard, the Glory of Yahweh your rearguard. ’ Such texts leaves no single doubt that the biblical message is that Yahweh is God that solely cares about justice and is also particular to the experiences of unjust abuse of the poor either be a foreigner or a native of a land. The new testament in the person and message of Jesus’ mission without denying be understood as the continuity with the mission of the prophets and that he is passionately concerned with justice.
the old testament considers the inconsistency of human failure to live the or by the standards of justice as a relationship between God and his people, and in the new testament the consideration of God’s project of salvation in Jesus Christ. 2. The ‘classical’ understanding of justice The biblical conceptions of justice were and are transmitted into Christian theological tradition (that the researcher plans not to extract every single bit of idea in this paper) through the fathers, particularly through St.
Augustine; the classical conception of justice was first articulated systematically by Mr. Aristotle and is taken into account in the theological study and tradition by St. Thomas Aquinas in the year (1225-1274). The Thomistic or Aquinas’ conception of justice combines the essential elements of Mr. Aristotle with the fundamental theological vision of Augustine. Thus Aquinas was able to identify the key characteristics of the whole classical understanding of justice that could be found in question 58 of the summa theologiae II-II.
It is important to realize that these elements can only be understood when interpreted within the context of Aquinas’ entire thought, basically to read the account in his summa theologiae. For the sake of discussion the researcher will note the following key characteristics: justice concerns the treatment of others, it concerns external goods, it is based on some form of equality and it takes account of merit. There are different nuances to consider in understanding justice. Some will be as follows: (1) The General, or Legal, Justice simply states that the community is the bearer of rights and that this right intends the common good.
Its fulfillment is the work of official agencies if the community, as well as of each individual member. The legislative authorities exercise legal justice through the promulgation of laws that further the common good. The Government in its executive officials achieves it by the sensible use of exiting just laws and by taking whatever measures are necessary for the common good and every member of the civil society exercise it by backing good legislation and government (through voting and influencing public opinion) and by intelligently obeying the existing laws for the sake of the common good.
For St. Thomas Aquinas, the complete range of moral virtues is seen from the perspective of general, or legal, justice which subordinates every legitimate activity to the common good. (2) In Commutative Justice the private person as well as groups, communities as moral persons, are the bearers of right. The aim of this right is the utility of both parties who exchange their goods or services. Commutative justice demands that one strive for a fair standard of giving and receiving in return.
It forbids encroaching on the rights of others and the basic violations of commutative justice are theft, fraud, and unjust damage. (3) Distributive Justice intends the good of each individual as a member of the community. In feudal times and still more in the age of absolution it seemed that the governmental agency alone exercised this virtue. In a democratic age it evidently affects every citizen not only to the extent that the just distribution of burdens or privileges is a matter of concern to each but also to the extent that each should actively assert his influence to that end.
Every individual has basic rights within the community that the community as a whole and each of its agencies and members must recognize. Legal and distributive justice have certain proportion to each other: the more the individual devotes his powers to the common good, so much the more must the community also devote to his good. This basic proposition should not be exaggerated, nor should it be considered in terms of commutative justice. Because the fundamental relation between community, group, and individual is not that of mere service and reward.
Rather, as in an organism, special care is due to the weak member; and, the powerful are bound to renounce all privileges, however they may have been obtained, that infringe on the basic rights and the true good of the other members of the community. (4) Social Justice includes both legal and distributive justice, and yet its chief concern is not so much strict legal rights and duties as it is the natural rights of the community, its members, and the member of communities of the family if nations in their relations to one another.
(5) Penal Justice is the temperate will to restore violated justice and order through punishment proportionate to the violation and to the exigencies of the social order. It is above all a virtue proper to superiors and judges, whom in meting out punishment, should aim only at the furtherance and protection of the common good through public order and safety, confidence in justice and the sense of right. It is also a virtue of the subject who is prepared to undergo due punishment if necessary and a virtue of other members of the community who contribute to the restoration of violated justice and order.
Thomas also follows Aristotle in distinguishing within particular justice between distributive justice and commutative justice according to the common definition of St. Thomas Aquinas. The virtue of justice is “the strong and firm will to give to each his due”. However, this does not imply that to each exactly the same is due. Because it is distinguished between (1) commutative justice that aims at complete parity between what is given and what is due in return (give and take), and (2) distributive justice, which concerns what each person receives relative to their contribution.
3. The modern view of justice The different forms of the classical understanding of justice endured through the centuries and enjoyed a revival and revision in Salamanca in the 16th and 17th centuries in authors, such as, Francisco Suarez who lived around 1548 to 1617. This is an era of colonialism that brought important legal questions about claims of territories and the kind of treatment towards foreign peoples. A new phase in the history of thinking about justice gradually emerges in the epoch we know in common as ‘modernity’.
This is a broad cultural revolution that can only be understood as a complex intermingling of social, economic, philosophical and theological factors. Within this exciting panorama, the approach towards justice radically questions the claims and vision of St. Thomas Aquinas. There are many key characteristics to draw out of this modern approach, one is its ‘critical’ spirit, meaning it aspires much to prove the truth of assertions, including assertions about justice: without making an appeal to God, or to God’s justice, as the highest legitimating authority of judging whether an act is right or wrong.
One could easily notice this in character as positivist, contactualist, or utilitarian modern views that placed a new approach on the autonomy of reason, to nature, and tradition in discerning what is just. These kinds of changes in theory, apparently is tied to a political change, particularly to the processes of civil emancipation. In the 20th century, theories of justice were greatly overshadowed by the trauma of two world wars. As a reaction to the excesses of these wars, efforts were made to set some basic international standards with regard to the treatment of people.
Such efforts were crowned by the 1948 Universal Declaration of Human Rights. Justice is certainly a key theme underlying the thought of this document, which has been made possible by efforts coming from countries specifically the United States of America led by Eleanor Roosevelt who helped in drafting the said document. In the second half of the 20th century the idiom of human rights becomes the most common way of discussing questions of justice.
There two most influential modern thinkers about justice are John Rawls and Robert Nozick. Their theories of justice are quite complex, the key difference between them is that Rawls prefers ‘just’ (i. e. equal) outcomes, while Nozick prefers ‘just’ (i. e. fair) procedures and processes. Rawls argued that just principles are those that would be selected by any person in a society where they had no knowledge of their race, gender, intelligence, ability, physical characteristics, financial situation or the position they would occupy.
He suggested two principles: (1) each person should have equal rights and basic liberties to the extent that these do not infringe upon another’s similar rights and liberties; and (2) social and economic inequalities are only justified when (a) they are reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all. Rawls calls this ‘justice as fairness. ’31 It is also commonly called ‘social justice. ’ The researcher nevertheless based in this study the ‘classical’ understanding of justice.
The conception of justice which combines the essential elements of Aristotle, as the first one who articulated it, systematically with the fundamental theological vision of Augustine or what we earlier called in the previous paragraphs as Thomistic or Aquinas’ conception of justice. It is summed up with four key characteristics that could be found in question 58 of the summa theologiae II-II. The context of Aquinas’ entire thought, is basically interpreted within the following key characteristics: justice concerns the treatment of others, it concerns external goods, it is based on some form of equality and it takes account of merit.
This will culminate an appeal to human rights and human dignity as this study consider migration as a question of justice, that is to say a specific stand from what have been discussed above in general terms. B. Aquinas Distributive Justice The philosopher Aquinas already gave a clear distinction between commutative and distributive justice. As it was discussed and given emphasis on the previous chapter, the researcher will focus in applying Aquinas distributive justice in the ‘classical’ understanding if justice towards migration.
‘In distributive justice, something is given to a private individual, in so far as what belongs to the whole is due to the part, and in a quantity that is proportionate to the importance of the position of that part in respect of the whole. Consequently in distributive justice a person receives all the more of the common goods, according as he holds a more prominent position in the community. This prominence in an aristocratic community is gauged according to virtue, in an oligarchy according to wealth, in a democracy according to liberty, and in various ways according to various forms of community.
Hence in distributive justice the mean is observed, not according to equality between thing and thing, but according to proportion between things and persons: in such a way that even as one person surpasses another, so that which is given to one person surpasses that which is allotted to another. ’ In the light of all that has been said above it should be clear that justice is a complex matter and that this complexity is increased in the contexts of modern culture.
In this final section of the chapter we will take up again the determining characteristics of the classical conception of justice (justice concerns the treatment of others, it concerns external goods, it is based on some sort of equality and it takes account of merit) and examine how they manifest in the specific case of migration in the contemporary world. 1. Justice is that it governs human conduct towards others As noted above, a key characteristic of justice is that it governs human conduct toward others.
To further understand these terms the researcher will refer in the discussions Aquinas made in response to the objections in his summa theologiae. Aquinas’ argument for the necessity of human law includes the observation that some human beings require an additional coercive incentive to respect and promote the common good. By means of the law, those who show hostility to their fellow citizens are restrained from their evildoing through “force and fear,” and may even eventually come “to do willingly what hitherto they did from fear, and become virtuous”. This virtue does not imply simple obedience to the law.
It means, rather, an inner disposition of the human will by which those possessing it refer all their actions to the common good (Aquinas follows Aristotle in calling it “legal” justice because the law, too, has the common good as its proper object. Thus understood, Aquinas (again following Aristotle) considers it to be a “general virtue. ” By this he means that legal justice embraces any act of virtue whatsoever, so long as the agent refers his action to legal justice’s proper object. However, a particular act of fortitude may be referred to the common good as its object and thus become an act of justice as well.
As Aquinas explains, “the good of any virtue, whether such virtue direct man in relation to himself, or in relation to certain other individual persons, is preferable to the common good, to which justice directs: so that all acts of virtue can pertain to justice, insofar as it directs man to the common good. ” a. Implication to migration The whole basis of civil society is that its citizens will recognize each other as fellow citizens and thus enter into these kinds of relations considering the case of overseas migrants. He or she is ‘other’ both in this general sense is a citizen of the country.
However, this raises complex questions of justice, such as, a question of the overseas migrant’s right to equal citizenship with the citizens of the host country. Even though the right to migrate is recognized in principle it does not mean that anyone migrating from one country to another has the automatic right to become a citizen of the new country. On the other hand, the migrant as considered ‘other’, not in the sense of being a fellow citizen but in the sense of he or she being a fellow human being, so how he or she is treated is a question of justice.
This is one of the deepest injustices human beings can do to each other, to deprive the other of the specific goods and his or her status as a human being. 2. Justice is the distribution of external goods In explaining the details of this characteristic, Aquinas distinguishes between commutative justice and distributive justice: Aquinas explains that distributive justice seldom requires that of a society render an equal amount (good or bad) to its members. Following Aristotle’s teaching in the Nicomachean Ethics, Aquinas argues that the ius of distributive justice must be calculated according to a “geometrical proportion.
” By this he simply means that more should be given to those who deserve more and less to those who deserve less. However, such is not the case in matters of commutative justice such as buying and selling, which Aquinas says must follow an “arithmetic proportion. ” By this Aquinas simply means that the good or service provided must be proportional to the value of the currency or commodity for which it is exchanged b. Implication to migration In the case of migration there are two goods to consider, first set of goods in question are the goods which are not available in the country of origin.
Most people who migrate do so because of inadequate access to material and immaterial goods in their country of origin. Migrants are in search of goods, such as, money, housing, technology, health care, schooling and security. The second set of goods in question involved in migration are those associated with the journey from one country to another, so the degree of exploitation involved in human trafficking is very common.
These few references could be a reminder that migration is an issue of justice because it involves large amount of money that are often times manipulated extremely and in dishonest ways. 3. Justice is that it is based on a form of equality Aquinas answered the objections in question 58 in summa theologiae II-II article 7 as: Legal justice does indeed direct man sufficiently in his relations towards others. As regards the common good it does so immediately, but as to the good of the individual, it does so immediately; and, the common good of the realm and the particular good of the individual differ not only in respect of the many and the few, but also under a formal aspect.
Wherefore there is need for particular justice to direct a man immediately to the good of another individual; and, that “they are wrong who maintain that the State and the home and the like differ only as many and few and not specifically. ” For example a household community, according to the Philosopher (Aquinas) differs in respect of a threefold fellowship; namely “of husband and wife, father and son, master and slave,” in each of which one person is, as it were, part of the other. c.
Implication to migration The equality in question is not of course material equality, which does not exist between the native citizens themselves. Rather it consists of the rights and the possibilities of health, education, etc. which makes the life of an overseas migrant substantially comparable to the life of these native citizens. Even if certain equality is formally acknowledged by the law, this guarantees not an effective equality in the realities or concrete circumstances in an overseas migrant life.
The justice issue here is ‘wages’ because there are those migrants who are paid less than the citizens of a country in doing the same amount of work. Moreover, often times they are prepared to work for less and unsure of neither insurance nor safety, making them inferior to those of native citizens. 4. Justice is that it is based on a form of equality Aquinas explained the final characteristic in question 58 in summa theologiae II-II article 11 that: ‘In matters of justice, the name of “profit” is extended to whatever is excessive, and whatever is deficient is called “loss.
” The reason for this is that justice is first of all and more commonly exercised in voluntary interchanges of things, such as buying and selling, wherein those expressions are properly employed; and yet they are transferred to all other matters of justice. The same applies to the rendering to each one of what is his’ own. In addition to what is stated above, the matter of justice is an external operation in so far as either it or the thing we use by it is made proportionate to some other person to whom we are related by justice. Now each man’s own is that which is due to him according to equality of proportion.
Therefore the proper act of justice is nothing else than to render to each one his own and to succor the needy, which belongs to mercy or pity, and to be liberally beneficent, which pertains to liberality, are by a kind of reduction ascribed to justice as to their principal virtue. ’ d. Implication to migration This is clearly connected to the principle of equality in the case of overseas migrants. Again the ideal case is an overseas migrant worker who is very hard-working and contributes more to a given project deserves to receive a higher payment.
However in some cases an migrant worker who is employed in manual or field work does not really receive what is due to him for the contribution he makes that which resembles injustice. To conclude the chapter, perhaps there are very obvious cases as a form of injustice, following Aquinas line of thought, on migration. It is not enough to defend an interest especially of those migrant workers or immigrants alike by just murmuring or by way of talking about these injustices at home or in the neighborhoods.
That is why; the researcher on the next chapter will try to be more critical and informed on the understanding of justice according to Aquinas so to help in judging the reasonableness of the many claims of rights in the form of laws ratified in such a way that it provides protection and welfare of the overseas migrant involved and his or her family. ——————————————– [ 1 ]. Grogan, Patricia FCJ. Christian Community Bible. (Quezon City, Philippines: Liguori and Claretian Publications 1995), 323. [ 2 ]. Kulikovsky, Andrew S.
“Justice and the Bible” (Paper presented at Summit Australia conference), (Australia: Mentor Press, 2007), 1. [ 3 ]. Johnston, David. A Brief History of Justice. (United Kingdom: Blackwell Publishing ltd. 2011), x. [ 4 ]. Ibid. , xi. [ 5 ]. Ibid. , Aquinas, Summa, 351-352. [ 6 ]. Ibid. , Kulikovsky, “Justice, 8. [ 7 ]. The Catholic University of America, New Catholic Encyclopedia, vol. 8, 70. [ 8 ]. Ibid. , 70. [ 9 ]. Ibid. , 5. [ 10 ]. Macintrye, Alasdair. Whose Justice? Which Rationality? , 352-369. [ 11 ]. Ibid. , Kulikovsky, “Justice, 9. [ 12 ].
Ibid. , 14. [ 13 ]. Ibid. , Grogan, Christian, 675. [ 14 ]. Ibid. , 753-754. [ 15 ]. Ibid. , Kulikovsky, “Justice, 10. [ 16 ]. Harris, Robert L. Harris et al. , Theological Wordbook of the Old Testament (Chicago: Moody Press, 1980), 89-93. [ 17 ]. Grimsrud, Ted et al. , Rethinking God, Justice, and Treatment of Offenders (Virginia: Journal of Offender Rehabilitation Press, 2002), 259-285. [ 18 ]. Thomas Aquinas, Summa Theologica, trans. Fathers of the English Dominican Province, Vol. One. , 349. [ 19 ]. Ibid. , 358-360. [ 20 ]. Ryan, John Augustine.
Distributive Justice: The Right and Wrong of our present distribution of wealth, 416. [ 21 ]. Ibid. , Aquinas, Summa, 353-356. [ 22 ]. Ibid. , America, New Catholic,70. [ 23 ]. Ibid. [ 24 ]. Goncalo, J. A. , et al. Journal of Experimental Social Psychology: Distributive Justice Beliefs and Group Idea Generation: Does a Belief in Equity facilitate Productivity? (United States: Cornell University Press, 2010), 1. [ 25 ]. Ibid. , Ryan,. Distributive, 358. [ 26 ]. Ibid. , Aquinas, Summa, 459-463. [ 27 ]. Ibid. , America, New Catholic,71. [ 28 ]. Bigongiari, Dino, ed.
The Political Ideas of St. Thomas Aquinas, 122. [ 29 ]. Ibid. , America, New Catholic, 71. [ 30 ]. Ibid. [ 31 ]. Ibid. , 72. [ 32 ]. Ibid. [ 33 ]. Ibid. , Aquinas, Summa, 270. [ 34 ]. Ibid. , 354-356. [ 35 ]. Ibid. , America, New Catholic, 71. [ 36 ]. Bigongiari, Dino, ed. The Political Ideas of St. Thomas Aquinas. , 239-246. [ 37 ]. Ibid. , Ryan. Distributive, 407. [ 38 ]. Mako, Shamiran. “Cultural Genocide and Key International Instruments: Framing the Indigenous Experience,” International Journal on Minority and Group Rights 19 (2002): 175-194.
[ 39 ]. United Nations Educational, Scientific and Cultural Organization. “The United Nations (UN) Convention on Migrant’s Right”, 5. [ 40 ]. Jochen von Bernstorff. The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law, 1. [ 41 ]. Ibid. , Kulikovsky, “Justice, 6. [ 42 ]. Ibid. , 7-9. [ 43 ]. Ibid. , 349. [ 44 ]. Ibid. , 358-360. [ 45 ]. Ibid. , Aquinas, Summa, 459. [ 46 ]. Ibid. , 358-360. [ 47 ]. Ibid. , 349. [ 48 ]. Ibid.
[ 49 ]. Aristotle, Nicomachean Ethics. trans. , Rowe, Christopher Book VII. 11. , 902. [ 50 ]. Ibid. , Aquinas, Summa, 350. [ 51 ]. Ibid. [ 52 ]. Ibid. , Aristotle, Nicomachean. , 902-903. [ 53 ]. Ibid. , Aquinas, Summa, 349-352. [ 54 ]. Ibid. , Aquinas, Summa, 355-356. [ 55 ]. World Education Report, The right to education: towards education for all throughout life (Dakar: UNESCO Publishing 2000), 65-66. [ 56 ]. Ibid. , 68. [ 57 ]. Ibid. , 69. [ 58 ]. Ibid. , Aquinas, Summa, 359. [ 59 ]. Ibid. , The. A Primer, 5.