Uwaezuoke Precious Obioha Department of Philosophy, Faculty of Arts, Olabisi Onabanjo University, P. M. B. 2002, Ago-Iwoye, Ogun State, Nigeria Telephone: +234-803-3950-443, E-mail: [email protected] com KEYWORDS Rights. Distributive. Equality. Fairness. Difference Principle. Commutative ABSTRACT Since the Renaissance period in history initiated the act of free thinking and independent thought, there have existed and still exist various notions and perspectives over every single subject of human discourse. The concept of justice is a good example.
There are shades of opinion and views concerning the nature of justice. Consequent upon this, human relationships and co-existence have become precarious as a result of wrong or inadequate conceptions of justice. This is particularly true, I believe, because justice is a basic imperative for good human relationships and co-habitation. In this paper therefore, I have tried to analyze the various conceptions of justice and the implications of such conceptions to human quest for peaceful co-existence and the full realization of human potentials.
At the end I argue that justice as fairness, better than every other conception of justice, provides answers to man’s quest for a global social order requisite for human flourishing any time and any day. INTRODUCTION The need and the quest for justice in the micro and macro societies and by extension the global world is increasingly becoming inevitable in the wake of all kinds of violence and orchestrated social disorder and break down of law that characterize our world today.
Justice cuts across and assumes a high degree of importance in every sphere of human endeavor such that it is a recurrent concept, an ideal in ethics, jurisprudence, governance and every other form of human undertaking that involve human relationships, management and administration. At the intrapersonal and interpersonal levels, it is a cardinal virtue such that with it global peace is guaranteed and without it our world will remain a place of horror and discomfort. As a result of this, the concept of Justice has become real and very topical in contemporary societies.
Verily, we do have an insight into the reality of justice whenever somebody cheats us or our group is marginalized in the share and distribution of national resources and properties. However, the concept of justice cuts across national boundaries and assumes a very important place in international politics, that is, politics between and among states. There is something anthropologically and ontologically common to man and objects, creatures and phenomena of the universe. This commonness lies in the fact that all are parts that make up the universe whose origin is a mystery which man is one.
The ‘life’ of one part may not be known by the other, yet each part obeys the rhythm of nature who has judiciously assigned the respective parts their respective purposes, agenda, mission and reasons for existence. The universe’s natural order is never an accident or a coincidence. It is not only teleological, but also a milieu of commitments and avoidances. Each object of nature (both animate and inanimate) desires to herself a breathing place in the natural space, herself being natural too, to fulfill her innate or natural callings, to avoid threats from other objects of nature and exercise the freedom necessary for her existence.
Against this background, the history of justice is as old as the history of man. This follows, therefore, that justice is natural to man. Man has never bothered himself with what justice means since it is a natural law. Instead the problematic of natural justice has bordered on its hermeneutics. It borders on justice calculus – what natural justice is and what it is not (Dukor 2003). Although justice has taken the coloration of cultures, philosophies, individuals and schools of thought, still the bottom line of this concept is that it is synchronically (a historical) in terms of definition.
Whatever differences there may be in the definition of justice by scholars, broadly speaking, the concept pictures integrity, impartiality, rightness and fairness as constituting the notion of justice. However, more fundamental to the concept of natural justice are natural rights, which constitute the most original, inalienable and natural, form of justice. In recognition to this, the ‘United Nation’ Charter on 184 Fundamental Human Rights and Nigerian Constitution chapter IV, outline the fundamental human rights as follows:
Right to life, right to dignity of human person; right to personal liberty; right to fair hearing; right to private and family life; right to freedom of thought, conscience and religion; right to peaceful assembly and association, right to freedom of movement; right to freedom from discrimination; compulsory acquisition of property; restriction on and derogation from fundamental rights and special jurisdiction of High Court and Legal aid (Nigerian Constitution 1989). Be that as it may, it is pertinent that we conceptualize justice for proper understanding and application.
This we shall do through the optic of various philosophers and jurists across epochs and periods. Hence, the concept and the meaning of justice. THE CONCEPT OF JUSTICE Ogunmodede (2005) identifies justice as the oldest human virtues in the world. It is mentioned among the 42 virtues of “Negative Confessions” called the Book of the Dead (Hilliard 1987) by the Ancient Black Egyptians. The Egyptian term “Maat” is the oldest word for justice and it means “truth, justice and righteousness” of life among men and before the gods.
In view of the various meaning to the concept of justice, Macquarrie (1967) in the “Dictionary of Ethics” opines that several meanings can be actually given to justice, namely: Justice in the oldest sense; justice in the narrow sense; and justice in the proper sense. In the oldest sense, as contained in the Ancient Egyptian Wisdom Literature and Old Testament, justice means moral “righteousness, rectitude or moral excellence, or perfection”. In order to be in communion with the spirit of the gods and to be found worthy on judgment day, man must live a righteous and perfect life.
The oldest existing work in the world, the teachings of Ptah Hotep in this sense can be aptly described as the oldest document on past living among men. In the narrow sense, justice means conformity with the law. However, the limitation of this sense of justice is two-fold. One, an unjust law is no law at all. Two, conforming to written or legal law without the spirit of justice shows the UWAEZUOKE PRECIOUS OBIOHA inadequacy and defects of justice in the narrow sense. While in the proper sense, justice is understood as the “harmonious functioning of the constituent parts in the individual, or in the state.
It is in this sense that Plato understands and defines justice. Plato accepts justice as the basis of society and goes on to emphasize another aspect of it. “Justice is keeping what is properly one’s own and doing one’s own job”. Plato says: Justice is the requirement we laid down at the beginning as of universal application when we founded our state, or else some form of it. We lay down; if you remember and have often repeated that in our state, one man was to do one job, he was naturally most suited for (Plato 1974).
It is obvious that Plato dislikes amateurishness and meddlesomeness because this duo characterized the Athenian city of his time which to him brought about its ruin and decay. Plato therefore added, ‘justice consists in minding your own business and not interfering with other people. Before Plato, Ptah-Hotep in his 5th instructions or, teachings defines Maat (Justice) as the basis of good governance. He says: If you are a man who leads, a man who controls the affairs of many, then, seek the most perfect way of performing your responsibility so that your conduct will be blameless.
Great is Maat (truth, justice, righteousness). It is everlasting. Maat has been unchanging since the time of Asar. To create obstacle to the following of laws is to open a way to a condition of violence. The transgressor of laws is punished; although the greedy person overlooks this. Baseness may obtain riches; yet crime never lands its waves on the shore. In the end, only Maat lasts. Man says: Maat is my father’s ground (Hilliard 1987). In another place in the 19th instruction, he defines distributive justice as “rightness” or “straight line” which is an antidote for the vice of greed.
Greed is a grievous sickness that has no cure. There is no treatment for it. It is compound of all evil…. That person endures whose rule is rightness, who walks a straight line, for that person will live a legacy by such behaviour (Hilliard 1987). Aristotle regards justice as the sovereign virtue and the major purpose of the state. Justice is treating equals equally and unequals unequally and in proportion to their relevant differences (Aristotle 1976). He further maintains that THE NATURE OF JUSTICE.
185 state of nature of Thomas Hobbes where life is solitary, nasty, poor, brutish and short. The influence of this Thrasymachean view of justice was obvious on Thomas Hobbes who even after coming out of the state of nature could not rise above “the interest of the stronger” in his civil society. His theory on what constitutes justice is contained in his major works as “De Cive” (on the citizens) 1642, “Human Nature” published together with “De Corpore political” (republication of De Cive in 1650) under the single title “Eternal Law”.
For Hobbes, the interaction of naturally free human beings, the push and pull of efficient cause (fear of death) and final cause (desire for happiness, or a more contended life) combined to bring “state of nature” to the point at which the transformatory social contract was made not between the ruler and the ruled but among the people who wanted to transcend the state of nature. Hobbes’ contract theory confers power on one man or assembly of men, without which it can be enforced. It is a contract made by the citizens with each other to obey such ruling power, as the majority shall choose.
When they have chosen, the citizens lose all right except such as the government may find it expedient to grant. “There is no right of rebellion, because the ruler is not bound by any contract, whereas the subjects are” (Russell 1979). According to Hobbes, the sovereign’s job is the procurement of safety for the people and by safety is meant not a bare preservation of life but also all the other contentment of life which every man by lawful industry, without danger or hurt to the common wealth, shall acquire to himself.
His view of political authority makes the sovereignty of the ruler inviolable and thus his “Leviathan” could be a tyrant who may choose not to recognize individual freedom and aspiration. Another philosopher or rather political theorist who was greatly influenced by the Thrasymachean view on justice was Niccolo Machiavelli (1469 – 1527). Though not explicitly written as a title, his thoughts on justice and the state are contained in his two famous books, “The Prince” and “Discourses on the first Decade on Titus Livinus”.
He started the ‘The Prince’ with a question asking how many kinds of principalities there are and the way in which they are acquired. What is principality? It is defined as sovereignty, territory of a prince or a prince hi- “unjust means either lawless or unfair; therefore justice means either lawful or just”. However, if positive law theory is anything to go by, then Aristotle’s definition of justice as conformity to law reduced the concept of justice to legality. The implication is that the concept of justice could as well be replaced by legality.
On the contrary, we argue that justice is also appealed to in matters where there is no positive law. More so, it is justice that supplies the criteria of law as well as judges its justification. Therefore, justice cannot be synonymous with legality since it transcends it and gives it its justification. In Plato’s Republic, Thrasymachus defines justice as “the interest of the stronger”. Thrasymachus is portrayed as the sophist who asserted that injustice is to be preferred to the life of justice. He sees nothing wrong with injustice.
He goes ahead to consider the unjust to be positively superior in character and intelligence. He says, “injustice pays” not at the meager level of the pick pocket, although there is profit in that too, but especially in the case of those who carry injustice to perfection and make themselves masters of cities and nations. According to him, “justice is pursued by simpletons and leads to weakness. He held that people should aggressively pursue their own interests in a virtually unlimited form of self-assertion, and thus sees justice as the interest of the stronger having believed “might to be right”.
Laws are made by the ruling party for its own interest and these laws define what is right meaning that what is right is the same everywhere. This reductionist conception of justice goes without grave consequences for human existence and global interaction. It reduces morality to brute and naked power. The effect of this in our global world is obvious and apparent. People rise against people; cities rise against cities; the powerful against the weak; the powerful nations always threaten the weak ones; dictate to them almost in all things including how they (the weak nation) should run their governments.
They even (the stronger nations) go to the extent of choosing their rulers for them against their (the citizens of the weak nations) wish. The powerful nations do this with reckless abandon provided it serves their interests-the interest of the mighty counts, that of the weak is a non issue. Imagine the implications of this in our global world. It is that of rancor, war and violation. It consequently degenerates to the 186 mself. In his works, he advocates the principle where the ruler must be firm and unyielding while feigning to be virtuous.
To him, it is more important to retain political power than to seek to take over one. It is better for the prince to be feared than to be loved. The prince should not bother himself about morality and religion but because man is pretentiously moral and religious, the prince could exploit this quality in man to his own advantage. Since morality and religion make man susceptible to deceit, fickleness and feebleness, the prince can exploit this to enhance his political gains.
The Prince must be above the law and outside morality in order to conveniently and successfully carry out his task of unification, consolidation and influence. To be able to do this, the Prince must freely use as his tools perfidy, cruelty, murder and any other means acceptable to him. Machiavelli despises morality because for him the first law of politics is expediency and not moral consideration. He rejects meekness, patience and true justice but in their place he enthrones vitality, energy, strength of character, ability to achieve one’s aim, desire for fame, courage, patriotism, ability to win power and preserve it.
The goal achievable by these means is what matters to him irrespective of the morality or immorality of the means, thus his famous dictum: “the end justifies the means”. An outright opposite to the Thrasymachean view of justice is Thomas Aquinas conception of justice. Aquinas defines justice as “a perpetual and constant will of giving everyone his due”. In this view, the angelic doctor St Thomas Aquinas recognizes justice as a moral virtue rooted in the will which includes other’s welfare.
This is essential because since the will necessarily seeks the good whether the good in itself or the proximate good of the individual, it would need a virtue that will make it possible for the respect of the other. Readen (1979) recognizes this conception of justice as one of the classical account of justice found in the institute of Justinian. The other classical account of justice is the one preferred by Emmanuel Kant which was offered by a celebrated jurists Ulpian as “to live honorably, to injure nobody, to give every person his due”.
In view of this, Kant states that every action is just in itself or in its maxim if “the freedom of the will of each can co-exist together with the freedom of everyone according to the universal laws” (Readen 1979). UWAEZUOKE PRECIOUS OBIOHA Spinoza (1951) also understand justice from the Justinian view when he says, “justice is the habitual rendering of everyman his lawful due, while injustice is depriving a man, under the pretence of legality, of what the law rightly interpreted would allow him”. When Hegel conceives of justice, he conceives of man as having dignity and respect.
Therefore, according to him, justice, in the sense of abstract right, is a kind of egalitarianism in which each person is respected because he is human, and exists independent of the power of the state. Although he sees the justice of the state to be supreme and above the justice of the individuals, however, he advocates for civil disobedience in cases of unjust laws. His reason is that not all states and all laws should command obedience. According to him, a despotic government vitiates the law and does not deserve obedience.
To support this claim, he insists that “insofar, as the state is the synthesis of particularity and universality, of the family and the individual, there ought to be the preservation by the state of individual liberty which the individual possesses as a member of civil society” (Stumph 1964). For Hume (1964) the concept of Distributive Justice is contingent upon the economic conditions and needs of man. This is because of the scarcity of resources, goods and services in view of the multiplicity of human needs and wants that have arisen.
If such goods and services were in abundance, the concept of justice in their distribution would never have occurred to anyone. He says, “What purpose makes a partition of goods where everyone has already more than enough? ” However, if the scarcity of needed goods or services were so extreme that there is no way to prevent the majority of the population from perishing and the remainder from suffering extreme deprivation and misery, then the strict laws of justice are suspended in such a pressing emergency and give place to the stronger motives of necessity and self-preservation.
And whenever we can imagine such conditions to have always obtained, there the concept of Distributive Justice would not have risen, concluded Ogunmodede (2005). From the foregoing, almost all the definitions of justice (in its proper sense) we have considered point to the conclusion that justice is giving one his or her due. Although, the concept of ‘giving one his or her due’ raises a fundamental problem here, for instance, what determines rights THE NATURE OF JUSTICE.
187 fairness is a surer way of achieving a just social order. According to him, man is placed at the initial position of equality. They have knowledge of the general laws of psychology, but they are ignorant of particular facts both about themselves and about the society in which they live. They are conceived to be self interested and rational. In coming together to form a society they must agree on principles for the distribution of benefits and burdens.
This agreement rests on the principle of equality both of basic rights and duties. Thus, Rawls sees justice as emanating from the contractual hypothesis and it connotes nothing but fairness or more generally rightness. Curson corroborated this view when he defines justice as “the virtue which results in each person receiving his or her due. It is the quality of being right and fair (Adeigbo 1994). According to Rawls, to be fair in selecting the principles of justice, the possibility of bias must be removed.
Fairness in his theory requires the more favored to agree to the type of distributive rule they would prefer if they were not more favored. Rawls proposes that persons in an original position will or should agree that all social primary goods (for example, Basic liberties such as political freedom and freedom of choice in occupations, opportunity, income, wealth and the bases of self-respect) are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favored (Rawls 1971).
For him justice is an issue of fairness focusing on the distribution of resources and permitting an unequal distribution only to the extent that the weakest members of society benefit from that inequality. According to Rawls, even if an inequality does not harm the least well off, it is unjust if it leaves them no better off than before. This emphasizes a distributionist type of justice and a defensible presumption in favor of equality in distribution of primary goods such as wealth and income.
According to Younkins (2000), in Rawls’ difference principle, an inequality can be advantageous to the person who gets the smaller share because inequalities can constitute incentives which increase the size of the pie to be shared, so that the smaller piece may be larger in absolute terms than an equal share of the smaller pie that would have existed in the absence of such incentives. The difference principle collapses to strict equality under conditions where and dues or what justifies claims?
Is it not the individual alone that knows what is due to him or her? Even when we claim through “public interest” to know what is in the best interest of a person, often times we have misunderstood a person’s interest and thus misrepresent it. If individuals are the true representatives of their individual interest, how then do we know what is due to people? However, it seems that the concept of right or natural right or what is commonly called the fundamental human right has answers to this question.
The place of right in the understanding of justice and its application cannot be overemphasized such that the notion of justice and its applications become a mere play on words, without recognition of the concept of right. Aristotle is one of the outstanding proponents of natural right theory. This theory holds that natural right is the ultimate basis of justice. Man has right not primarily because he has received them by society, but because his nature as a human being confers right upon him.
The rights that are to be respected by justice primarily derive from the laws inherent in nature itself. Men and human communities have a natural right to well ordered existence, self-realization and progress. On a secondary level man’s rights also derive from the further determination of natural rights by the positive law of a community. The demands of natural right can usually be complied with in different ways. For example property and inheritance rights and it is left to the community to determine in which concrete forms these demands shall be met with.
However, positive law must agree with demands of natural right as much as possible and may never contradict it, if it wants to be legitimate and binding. When Plato sees justice as the greatest of all virtues arising from the harmonization of the three classes of the state and the three aspects of human soul, little did he know that he was laying down a monumental principle that will guide the actions of individuals and states in generations to come. Plato says: ‘justice in the state is the same as justice in the individual. It is the product of every one staying in his place and doing his task”.
A proper understanding of Plato’s concept of justice shows that his concept of justice is more in line with the theory of justice as fairness. From the perspective of Rawls (1971), fairness ensures a just state. Thus, to him justice as 188 differences in income and other rewards have no effect on the incentives of individuals. However, in the real world currently and in the foreseeable future, greater rewards bring forth greater productive efforts, thus increasing the total wealth of the economy and under the difference principle, the wealth of the least advantaged.
Edwards Younkins argues that Rawls does not see the natural endowments of individuals as their making and therefore, his difference principle is an agreement to consider the distribution of natural talents as a common asset and to share in the fruits of this distributions, no matter what it ends up being in this view an individual’s natural endowments are not considered to be his own property, but rather the property of society.
According to Gorr (1983), this is one of the fundamental tenets of John Rawls’ theory of justice, “that we should seek a conception of justice that nullifies the accidents of natural endowment…as counters in quest for political and economic advantage…” Now what makes Rawls’ idea of justice so important is that he systematically expresses a vision that had already underpinned a great deal of social policy, legal theory and even international relations. The goal of Rawls’ conception of justice is to put certain segments of society in the position that they would have been in except for some underserved and unfortunate circumstances.
Furthermore, Rawlsian idea that one’s own status, endowment, and wealth are unearned is especially potent when it is combined with (1) the Kantian notion that there is no virtue in pursuing one’s own personal flourishing and/or (2) the guilt felt by those who are ashamed to live in material abundance while others in the world suffer. Kant advocates abject selflessness and held that an action is moral only if a person performs it out of a sense of duty without regard to any personal goal, desire, motive or interest (Kant 1959).
If a person acts to derive benefit, his action is amoral. Furthermore, Kant would even maintain that no moral credit would accrue to a person who gains pleasure from his charitable activities even though he did not seek such pleasure. In addition, so-called political guilt can be defined as the belief that one belongs to a group of people that has unjustly or unduly fortunate circumstances, endowments, or privileges. However, Rawls’ theory of justice has come under heavy criticism. Rawls has been criticized for focusing on how goods are distributed.
UWAEZUOKE PRECIOUS OBIOHA among person ‘representative’ of various positions in society but ignore which individuals have which goods and how they gained possession of them. Critics of Rawls argue that people hold an entitlement to what they produce or have legitimately acquired and therefore should be protected from Rawls’ proposed redistributionist policies (Younkins 2000). To them the Difference Principle is an unacceptable infringement on liberty in that redistributive taxation to the poor requires the immoral takings of just holdings.
Rawls’ opponents contend that the justness or otherwise of income or wealth distribution depends only on the manner in which that distribution came about and not the pattern of the distribution itself. Another criticism levied against Rawls theory of justice is that fairness is not the proper standard of justice because the world is inherently unfair and thus unjust. There is no equality in nature; some are smarter, more talented, better looking than others. People have the freewill to either use or not use the talents nature has endowed them with.
Therefore economic equality is a goal incompatible with nature. True justice is attained when people’s lives and property are secure and they are free to own property, order its direction, determine the purpose to which their bodies are put, engage in consensual transactions and relationship with others and freely pursue their conception of happiness. Further, his critics argue that Rawls fail to recognize that talents are not a common pool, that the aptitudes that one person enjoys in no way lessens the number and magnitude of abilities that are available to another.
My talent is not acquired at anybody’s expense. Thus, Rawls is rebelling against reality, nature and the existence of human talent. The existence of one’s talents is neither just nor unjust – it just is. So why should those “favored by nature” be made to pay for what is not a moral problem or an injustice and is not of his or her own making, his critics argue. But for the fact that whatever one acquires is not of his own making, is the more reason such acquisition should be freely distributed.
For the fact that our world is already lopsided and imbalanced as a result of nature’s inequality, then there is a moral burden on those so blessed to freely give to those who are not so favored. So to that extent Rawls’ argument is tenable. Even Nozick’s (1983) entitlement theory and end state based on the principle that all human beings have THE NATURE OF JUSTICE 189 proportionate distribution of the fruits of their labor so that no one is cheated in any manner. On the national level, every group demands a proportionate and equitable share of the nation’s wealth among various groups.
It also demands that minority groups be not neglected. On the international level, social justice demands that the relationship between nations be guided by mutual respect of every nation. It imposes an obligation on developed nations of the world so that every nation will enjoy fruits of earth, and so, fully live as human beings. However, our interest lies more on distributive and social justice for these forms of justice better exemplify what the relationship of individuals to the state, and the state to the individuals should be. It also establishes what the relationship between nations should be.
THE PRINCIPLES OF JUSTICE As we have principles of physics within which the laws of nature guide all natural happening in the world and in so doing prevent chaos in the order of nature, in no less, do we have principles guiding human conduct and the relationship existing between individuals on one hand and between individuals and the state on the other hand. In the same vein, there exist principles guiding the structuralization of the society. The later principle, we call principle of justice. Den Uyl and Rasmnssen (1998) distinguish between meta normative justice and justice as a constituent virtue of one’s personal flourishing.
While meta normative justice is concerned with the orderly and peaceful coordination of any person with any other, justice as a normative principles and constituent virtue of a person’s contextual recognition and evaluation of others based on objective criteria. Normative justice is concerned with selective relationships and requires practical reason and discernment of differences of both person