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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 |
