Justice: Who is She?
Dominic Campbell on Crime and Punishment and the Meaning of Natural Balance
In the meantime, despite the pitiful brevity of his term on earth, man is constantly confronted with the question: “is this right?”, “is this just?” There is a difference between right, which refers to accuracy of fact, and Justice, which refers to accuracy of distribution in fate. Justice applies to ourselves and to others, appealing to an objective standard beyond our individual might.
Compared to other “big issues”, such as evolution or political ideologies, Justice is little discussed or studied, where Justice is considered as a philosophical proposition, not a measure of what is a just or less just law or decision. This is remarkable, for how can we reach satisfactory or effective conclusions concerning the rights of man, the criminal code, the entire “law and order” debate, without a consensus or even a common understanding as to what Justice means? After all, an understanding of what constitutes Justice, a belief in Justice and a belief that a lack of Justice prevailing in given circumstances and in specific social situations needs to be challenged and changed, underpins a considerable part of political debate and political commitments, and a considerable part of religion too. As TS Eliot wrote in his essay on Francis Herbert Bradley, “a system of ethics if thorough, is explicitly or implicitly a system of theology.” What is a religion, after all, if not an enlightenment of the world and our place in it in terms of an all-prevailing and all-seeing Justice? After hesitating I have accorded Justice the status of a proper noun. “She was always a woman to me.”
Religion preaches morality as the way to fulfilment and/or redemption. What is the relation of Justice to morality? Nietzsche, whose condemnation of Christian ethics and whose genealogy of morals was the subject of the last issue of The Scorpion, had little to say about Justice as a concept, and implied that little need be said about Justice once ethics had been examined and explained. “All men are not equal -that is justice!” cried Zarathustra. Justice for Nietzsche, and for his Christian enemies too, is applied ethics. There is however, a difference between ethics and justice, which is that justice ensures that fairness, a kind of objective equity or balance, prevails or is restored, whereas ethics are concerned with principles founded on what is subjectively understood as right and have no concern with an agreement or game or set of rules. Justice, on the contrary, assumes an agreement about rules, an agreement into which different parties may enter more or less willingly. This is where most but not all theories of Justice tend. Once we speak of Justice among men, we usually speak of a contractual arrangement between equal partners. Justice in early human societies, according to Ritter (The Essence of Plato’s Philosophy), where communities were small and cultural conditions simple, admitted to no conflict between moral duty and self-interest. It is a characteristic of a primitive society that it does not distinguish between Justice and ethics. The observation of customs and rules is indistinguishable from the pursuit of self interest. This is true for animals as well-obedience to the laws of nature and self interest are not separable, at least not in the animal’s mind. The individual in the primitive society who obeys customs and rules is fully socialised and presumably content. He knows of no other Justice than the Justice he directly experiences as the manifestation of the supreme life force of which he is intuitively a part. The greater the exposure to outside possibilities, however, the greater the separation of identification of individual and social interest. It was with the rise of Hellenic civilization (W. Guthrie: The Greek Philosophers) that a conscious distinction was made between natural law and human Justice.
Under natural law, it may be that the strong man is justified in taking what he can from the weak. “Nature” we are told, is pitiless. Justice and Strength in Nature are indistinguishable. The law of the rule of the strong is the beast waiting to break forth, as portrayed unforgettably in William Golding’s Lord of the Flies. It is the ever recurring argument that nature/God intended that there be a hierarchy of the fit and less fit and that among men the least fit should not participate in the benefits of social partnership at all. Libertarian and Social Darwinian theories of justice place the inventive and energetic rather than strong and destructive individual at the centre of the human stage, replace the fist with the contract; but the notion that Justice belongs to the powerful remains. Happiness and prosperity are rewarded to those who work hardest for them and that is “right” (just). One of the problems with this notion of Justice is that it is notoriously difficult to assess the extent to which we are responsible for our efforts, the extent to which we should be rewarded for our hard work and the extent to which it is our own fault or “in our stars” that we are more or less favoured.
The socialist/egalitarian notion of Justice is that differences of ability are gifts which the individual does not “deserve” in the sense of Justice at all. It is never in itself just if one is slower than another, fatter than another, wealthier than another. It is all the work of Lady Luck. “Show me the prisoner, show me the jail…I’ll show you young man, with so many reasons why, there but for fortune go you and I.” Because inequality is a question of luck, according to the egalitarian, Justice is a constant striving to compensate the “unlucky” by taking from the “lucky”. Socialism is society’s righting of “unfair” advantage, advantage acquired by strength.
Never far from arguments about talent and ability and ability being properly rewarded, is the evidence, and the evidence is growing all the time, that character and talent is largely the consequence of biological and genetic determinants outside personal control. To the extent that this be true, both the standard egalitarian and anti-egalitarian arguments about Justice are weakened. If the individual is successful or unsuccessful as a result of some kind of genetic determinant, then inequality is just and unjust. Abnormalities, if externally driven, are not the “fault” of the individual in terms of the individual as a collection of individual free wills. Blame on the individual miscreant can only be apportioned to the extent that the individual will fails to control socially deleterious impulses which it theoretically could control. Aggression may be triggered for example, by over-active thyroid glands, sexual misbehaviour by testosterone, and so on, in which case it is arguably unfair to blame miscreants for what they do under biological compulsion. (We might suspect, denounce and condemn a fox for attacking chickens, but not if we are fair, blame it.) In an increasingly technological society, where available work requires an ever higher standard of education and where at the same time the social security system supports the ineffectual and reproduction by the ineffectual, there is the problem that the unemployed become the unemployable and that the army of the unemployable revert to crime to sustain themselves or maintain self-esteem. The criminal as “born loser” is the product of a society which makes technical demands on its citizens which many cannot fulfil. Society is in advance of the individual in terms of education and expertise. The “loser criminal” commits injustice with his (less frequently her) crimes, but there is injustice within a system that offers no place to the millions of unemployable which it itself fosters.
The problem of the growing army of the unemployable in what by world standards is the over-paid West is not an issue for the fashionable libertarian ethos. Libertarian capitalist-minded concepts of natural justice insist that Justice can only apply to human material as it is. After all, goes the libertarian argument against socialism, “being lucky” in being born talented or intelligent begs the question: what remains of the individual human identity if we separate being from what belongs to being, from the properties of a being? If I do not acknowledge defining characteristics, talents and weaknesses as being inherently the “privilege” of an entity, what remains of the entity after I have stripped it down in the name of abstract fairness? Imagine that someone says that it is unfair on Terence the house-rat that he was not born a lion. The premise of such an argument is unsound. If the house-rat Terence had been born a lion, Terence the lion would not be Terence the house rat. It makes little sense to talk of “fair” and “unfair” in the context of the properties which constitute our-selves. On the other hand, it is possible for individuals, at least humans, to improve themselves and learn from mistakes. Justice which only acknowledges the facts of our being as we are born to them, would be a Justice which had abandoned responsibility for improving the lot of man. In the socialist-libertarian disagreement about Justice we see that the truth lies in between an extreme program of reform and an extreme acceptance of nature. Human Justice is here compelled to realise a compromise. The non-reformist notion of Justice says that our fortune lies in our hands and that we are rewarded by the effort we put into our lives to improve ourselves. Improvement takes place incidentally in the course of the struggle for the survival of the fittest. The belief in Justice as the reward of success to the stronger happily concedes that it will have no truck with such responsibilities as altruistic amelioration in the name of abstract morality. However, this belief in freedom at all costs, and it is really freedom at all costs, is seldom as innocent as it seems. Freedom in the play-ground means the harassing of the weak by the bully. Justice made by man imposes limits on freedom to protect those who would be the victims of natural law. The socially or physically weak are protected from the consequences they would suffer if society reverted to a state of “natural Justice” by political/social discipline, man-made Justice. Libertarians on the other hand, are suspicious of all man made attempts to rectify inequality.
According to the libertarian argument, Justice only exists within the context of mutual agreements, on which are reckoned the rights of the “business partner”; and the social individual for the libertarian is nothing more than such a “business partner”. The underlying opposition of the two hitherto prevailing ideas of Justice is very simply put, one between the religious ideal of perfect man to be imposed on society against accommodating to the harsh natural Justice of Life as we find it. The first gives the state a primary role in administering Justice, the second denies the state the right to be more than an arbiter in disputes over obligations. To what extent is Justice an expression of power? Justice, like sovereign government, is sometimes called “the will of the people”. Courts historically claim to represent some kind of a collective will. Theocratic justice says it represents the Will of God acting through men. So-called People’s Courts in the last century claimed to act in the name of a community greater in value and greater in wisdom than any individual. In both cases God/the People were seen as the expression of a force which masterminded the destiny of each and every one of us and so closed the circle of the unending “injustice of life”.
Justice must be strong-when weak, she is by definition unjust. Justice without her sword and her ability and willingness to wield it is no more than wishful thinking and pious hope. If Justice is an expression of power however, then whose power? Any system can be represented as “just” by its rulers. However “unjust”, tyrannical, arbitrary, biased or cruel any system may be, it will still claim to speak and act in the name of some kind of superior Justice. However much Justice may be exploited and abused, everyone pays her lip service. Only in moments of war at the height of rapine, plunder of pillage, at times of complete lawlessness do people cry that “God slept”. Even when tyrants claim that they alone decide what Justice is, seldom do they say that do not believe in any principle of Justice at all. No wonder: ultimately Justice and Justice alone legitimises power.
Life seems to be itself from the very beginning essentially unfair. If I am unable to play good basketball because of my short stature, that is unfair; as it is unfair that one girl is prettier than another. For Nature, however, being shorter or taller or more or less able to attract a mate, corresponds to different rules of Justice (“natural” ones). We are what we are to serve a purpose. Human Justice seeks to modify natural justice, and so does science. The achievements of our science attack the social injustice/natural justice of disease and ageing. Social legislation seeks to reduce the acuteness of the social injustice/natural justice of difference of wealth and power in society. The very sense of civilization is to remould natural Justice to suit the needs of a species which is not content with a system of Justice over which it has no power. Justice for mankind means improving on what Nature considers just.
In this improvement it is possible to speak of two extremes. One extreme is to reduce benevolent and idealistic state intervention to a minimum, to claim that we should be as close as possible to what Nature has made of us; in its most extreme form this has as its political philosophy Anarchy and the abandonment of the State. It is the role of the State after all to systemise Justice. Without the state, Justice becomes a private matter of accounts, in which the weak rapidly perish according to laws of the survival of the fittest. In the case of the reverse extreme, interference in the process of natural Justice is taken so far that the facts of Nature are no longer accepted. Nature is rejected. The human being is systemised and the direction which society takes is to reduce the differences in human beings in the name of Justice with the ultimate aim of making them irrelevant in according privilege and wealth. Whether as robots or slaves, Justice in such a situation reaches inevitably towards making of men one Type. The end of this kind of collective Justice at both extremes, is the society of the ant-hill.
Justice in a democracy is supposed to represent Justice as the majority of people regard her. The problem here for Justice in a party democracy is that the difference between ideas about what is just and self-interested are obscured. Justice is represented as being above individual interest, disinterested. To be so, she must not simply be voted in by majorities, since majorities notoriously perform out of self-interest and democracies notoriously flatter self-regard and individual vanity. Disinterested Justice cannot be democratic because she is impartial and democracy is by its very nature partial. The People’s Courts, which claimed to be acting democratically, took Justice a step back towards a state of Nature, where Justice would be the expression of self-interest. The dark side of Justice has a name and the name is vindictiveness. My justice is your prison. Punishment can easily be the exercise of resentment. In such a case Justice is not blind. To be blind means not to see the interests or the nature of the parties. The restoration of balance is a responsibility of those who are impartial, that means they do not belong to any one part of society but to all and therefore to no party. Partisan Justice is infected Justice. Where the revenge element dominates in Justice, claim and counter claim continue for generations, hundreds, even thousands of years. The act of vengeance provokes a reaction in a cycle which has no inherent reason for ceasing from turning. Also revenge can seek “Justice with interest” as we can see in the legendary stories of Michael Kohlhass or Krimhilde. In modern politics we see it in Ireland and Palestine, where a solution can only be created by a synthesis through a third possibility or the thorough annihilation of one party or the merging of the antagonists with each other, so that it becomes impossible to separate the two factions claiming justice from one another, or as is most usually the case, a combination of these factors.
The higher principle of Justice is one thing. The establishment of guilt or innocence is another. This is a process where experience of the particulars of a given case are essential and what counts here is practical experience. But where we would expect our courts to be pragmatic, namely in the establishment of guilt, the skill and rhetoric of the professional, the barrister and the solicitor, is called upon. In a system of genuinely disinterested Justice their task would not be to argue eloquently for guilt or innocence but to argue eloquently in the case of guilt for more or less mitigating circumstances. When it blurs the distinction between guilt and culpability, a judicial system confuses all elements of Justice together. If the distinction were maintained, it would be easy to discern the difference between the need to punish and the need to compensate. To compensate for wrong-doing is an objective attempt to make good in a wholly impersonal way damage caused by a criminal act. This would includes reparations, restoration of stolen property and the like. This aspect of Justice is stressed in the United States, with its Puritan roots. There is common to seek punishments which “fit the crime”, the restoration of balance in terms of gain and loss is given priority. Punishment also fulfils another aspect of Justice, namely the pragmatic creation of a deterrent and the symbolic rendering of the same distress in the reverse direction to which it was caused as a symbolic returning of the distress caused in the first place.
Justice considered in practice is incorporated in the joint term “crime and punishment”. Crime and punishment essentially refers to the field of security and power. This may or may not contain the notion of good and evil. Good and evil exists in a Manichean world only. The pronouncements of Zoroaster which exist in the Ghatas, the personal part of the Avesta, effectively articulates the first Manichean vision before which all crime and punishment was only a matter of power. The two Assyrian Empires 883-782 BC and 745-606 BC used punishment purely as an expression of power, crime consisted of not being not one with the being of the supreme Empire. The cruelties of those Empires are the signatures in the most radical form, of a power in which the expression of power/cruelty is the highest monument of success and no notion of fairness linked to Justice exists at all. Cruelty in Justice is the affirmation of power (I do what I like) and is therefore subjective and because it is subjective mitigates against the notion of a spiritual dimension to justice. Cruelty in Justice is therefore the justice of the primitive per se. Cruelty is the vice of the weak aspiring to be strong. At the same time it provides a collective identity of culpability and identification. It uses Justice as the pretext for self-assertion, which is why Nietzsche favoured it.
If it is true that Nature is cruel, cruelty is a means to an end, seldom if ever committed for its own sake. Animals, with arguable exceptions like cats and foxes, are “cruel” (if cruel is the right word at all) for a practical purpose only. The parasitical wasp which lays its eggs on the paralysed spider does so for the practical reason that the spider’s body would have withered by the time that the wasp’s hungry brood had hatched to feed on it. With humans, cruelty sometimes uses cruel necessity to introduce a private justice which is in reality a subjective affirmation of a frustrated will. For this purpose the mob can always be relied on to carry out the will of the few. The People’s Court is the manipulation of the will of the ambitious in such a manner. Punishment has developed in the last few centuries from a public to a mainly private spectacle. While this removes to a great extent the public participation in culpability (if there should be culpability) it at the same time means that cruelty is ashamed of itself. Why torture or beat in private if the action is “right”? Past generations had no compunction about providing public spectacles.
We can distinguish four main aims of punishment: 1) retribution, a restoration of balance; 2) revenge, Justice for the victim; 3) a deterrent; against the repetition of the crime; 4) the creation of a sense of identity by locating and rallying against an outsider. Of these, the first incorporates the spiritual higher end of justice to which a higher society aspires. The second is an understandable and perhaps necessary act and the third has a purely practical purpose, again, which may indeed be necessary. The fourth exists where the criminal is identified as the enemy, as in war, and is particularly common where the identity or being of the criminal is condemned more violently than the physical act of his crime. It has a strongly military character and it is military societies especially which encourage it.
The fourth aim of punishment touches on punishment not for what one does but for what one is, thus what seems to many people notoriously unjust about racialism, is that it condemns persons on the basis of what they are instead of on the basis of what they do. The Nuremberg Laws or the Statute of Kilkenny persecuted people on the basis not of a choice that those people had made but for what they intrinsically and inescapably were (Jewish/Irish). This idea of Justice, which in many people’s eyes should not even be dignified with the word Justice, is certainly of a radically different kind of Justice to the Justice which seeks to punish on the basis of a person’s responsibility for individual actions or inactions. What in effect such Justice claims to do, is to presume on the basis of experience or evidence about the group that a certain person belonging to said group is more likely than others to behave in a certain way. Taken a stage further it is declared that by virtue of belonging to that group one is ipso facto criminal. In that case a person is held collectively responsible regardless of what he has done individually. What modern Western society deplores in racialism is that it claims that it creates a pseudo-justice based on prejudice, viz prejudging individuals on the basis of their belonging to a group for which they are in no way individually responsible.
Where all persons are regarded as individuals with equal rights, it is regarded as a gross injustice to prosecute anyone on the basis simply of what they are. But the question is more complex than it seems: to what extent are our actions our own and to what extent generic? To what extent are we the subject of genetic and environmental codes which determine how we behave? If we behave as we do at least in part because of what we are, then treating persons differently on the basis of race, can be justified. This could arguably mean punishing members of a higher race or class more harshly for certain misdemeanours because a higher standard would be expected of them.
Crime and the punishment of crime is the definition which the state gives to Justice-namely in terms of the fight to defend it. If discipline is the code for protecting the weak from the consequences of natural justice in the name of some kind of social justice, crime and punishment can be understood as infringements and corrections respectively of the relationship established between natural and civic order. There is a natural order, because however we regard natural differences or distinctions, they will play their role in society; there is the civic order, that is to say, the order established by a code respective of our rights and obligations as members of a social group. The defining element which separates natural man and natural Justice from civic man and civic Justice is culture. Culture is the mark of differentiation between different human groups. (It is linked to biology through the relationship of culture to ethnicity, a link which for Machiavellian reasons, is vigorously denied by modern liberal regimes.)
Just as life may be defined as interaction by an organic unity between itself and its environment, so human social life may be defined as life in which natural justice is in some way modified or changed by the social and natural elements of the human being-in culture. All notions of Justice have to take the two different elements of human behaviour into account, namely the biological/chemical and the cultural/social. The first is determined beyond me, although not altogether beyond my control, the second is a mark of my personality and my political and social existence. Modern notions of Justice are increasingly expanding the first at the expense of the second so far as individual responsibility is concerned. It is quite the reverse when the consideration of human behaviour is concerned and the pursuit of criminals. In this case, only the individual counts-the statistical greater likelihood of a social or ethnic group committing a given crime is ignored. This makes the work of law enforcers harder. Everyone knows that in the United States rape is very much a Black crime, but stating so is considered evidence of “prejudice”, prejudging a case and therefore taking balance away from Justice, but balance consists of weighing up all relevant facts.
The application of the rights of the universal rights of “man”, a person paradoxically an interchangeable yet precious individual, has practical consequences in the politics of law and order. In the first place, since universal human rights are considered a-historically, it is not permitted to pursue suspected criminals on the basis of past experience; at the same time, because the liberal state guards for itself as vehemently as the fascist state (which in this respect it closely resembles) the privilege to judge and punish wrong-doers, in other words the full prerogative of Justice, the citizen is obliged to regard all persons, even those who have done him obvious harm, as still equal and enjoying full human rights until such time as the state has seen fit to judge and sentence. At the core of current attitudes to Justice is a belief in the supreme value of individual life coupled with disdain for all collective integrity when that collective integrity confronts the needs of the individual. The economic fact of modern life, that we live in a consumer’s market, has spilled over into the area of Justice and crime and punishment. The claim to treat all individuals equally before the law is undermined in the consumer’s market by collective interest groups (lobbies) which have replaced historical collectivities. The executioners of law, the police, have become sensitised, not only crime but being sensitive to the circumstances surrounding crime, has become a part of their training. Increasingly, it is expected of the police not only to fight crime, but also to understand it. However, the more energy committed to understanding crime, the less energy can be put into fighting it. Worse, whereas understanding can only be improved, it is actions that are condemned. Prudence in action is being actively encouraged among Western police.
The notion of human rights only acknowledges crime at the level of the deed. There is no room for action against suspected intent or attitude, since this would infringe upon the individual’s right to be different. This gives a considerable advantage to the lawbreaker and removes from the police the power of discretion in maintaining law and order by preventive action. It also removes from the police the power to uphold any kind of social consensus. Since at the same time, the most stringent discipline is applied to the citizen in undertaking any kind of action himself against suspected wrong doers, the inevitable consequence is a tidal wave of incivility at the level of simple social misbehaviour.
The insolence of a significant number of citizens towards social customs and rules is arguably in certain circumstances more perilous for the well-being of a society than openly acknowledged (by the criminal) criminality. If a crime may be committed in knowledge that it is a breaking of the rules and in fear of punishment such crime is little threat to society as a whole, implying an acceptance of the principle of Justice on which the society is built. Insolence and misbehaviour on the other hand, constitute a non-political repudiation of order in the cause of chaos. Seen in that light, it is conceivable that throwing litter in public or behaving in a generally bad way should be punished more severely than say burglary or bank robbery. This suggestion is grotesque for liberal ethics, which consider every crime in isolation and not for the influence of crime. In fact crime thrives by imitation, like the virus it is, but the current established view is not to regard crime as a virus but as a malfunctioning due to deprivation and disadvantage.
The criminal per criminal is motivated by selfishness. The criminal accepts the sense of the law of the established order but decides to break it in order to gain a personal advantage at the expense of those who do not break the rule. He is not, as the political rebel or revolutionary are, demanding different rules. He accepts the rules in principle but cheats in practice. The criminal in a self assured society accepts when he is caught that he is a cheat: “it’s a fair cop”. The criminal may or may not be insolent. The insolence of the criminal is something which broadly speaking current liberal views of Justice do not consider relevant to a degree of punishment, although genuine contrition should be a mitigating factor in considering Justice from the point of view of combating a social threat. The emphasis should perhaps be on the word “genuine”. It is easy to feign contrition to “get off the hook”. Conversely, impertinence should lead to much more severe punishment. Insolence is as corrosive in its effect among the criminal classes as vindictiveness is among the non-criminal.
Misbehaviour is not “wrong” in the liberal view when it is not a breach of a specific law. In modern society there is no abstract concept of Justice, only a book of many rules. But behaviour is part of Justice. It is intimately linked to fairness. The “good behaviour” of the gentleman to the lady, or the child to the adult, are not arbitrary decisions made out of self-interest, they are customs and mores which have been created through social experience, themselves rational and just in the very profound sense that they secure balance. Securing balance is exactly what Justice means. The energy of youth for example, is balanced by the wisdom of age and for youth to respect the wisdom of age through behaviour, is a recognition of the Justice implied in the compensatory gesture. It may indeed be the case that not all old persons are very wise but it is a typical liberal objection to make of this fact a reason for rejecting the custom of respecting the wisdom of the old, for the custom is a generalised principle which belongs to a cultural milieu. It is a right of a particular people which is greater than the right of one individual young and one individual old person. Paradoxical as it may seem, liberalism’s failure to acknowledge this is reactionary, because it encourages a regress to the primitive. Liberalism says “no” to what has developed, to what has evolved and in doing so nods towards the return of the primitive, what we left behind us, the rude gesture, the empty face, the face hardened by the blows of incomprehension, the dull and uncultured ape-man of what should by now have become a former epoch. But the return of primitive man is exactly what a diminution of the value of custom as opposed to rules encourages. Laws are an admission of a failure to have reached utopia.
From this we have a paradox, one which many observers have remarked upon. The refined and civilized liberal is unwilling to condemn primitive or anti-social behaviour which implies the destruction of the very liberal values of discernment which the liberal considers the mark of civilized behaviour in the first place. In matters of Justice the liberal intellectual is divided; on the one hand, he witnesses behaviour and attitudes which point to the destruction of his world; on the other hand, he shrinks from the conclusions about Justice which must be drawn to make sense of this-that human beings are not all equal, that Justice sometimes needs to be secured with the shedding of blood. The intellectual is inclined to seek abstract solutions to pragmatic issues of Justice, be it the conservative who wants a “tougher” approach or the liberal who wants a more “understanding” one.
Shying from a robust pragmatic attitude to combating crime, the intellectual is notoriously liable to admire dictators at a safe distance. In a political climate where dictators are thoroughly out of favour however, and confronted with the decline of social behaviour and the obvious reduction of cultural levels to accommodate the most primitive in society, the liberal intellectual is likely to: 1) look the other way, 2) belittle the importance of what is seen 3) seek to understand by examining economic causes 4) confine condemnation to condemnation to a very small group of agitators. 1 and 2 apply to direct experience and 3 to public commentary. 4 is mostly reserved for commentaries about special case groups, so that notoriously, leftist commentators exaggerate the significance of white racialism and underplay the significance of black racialism.
In modern liberal society it is not the individual as citizen who is privileged, as some claim, but the individual as consumer. The consumer may behave as he likes under modern liberalism-what is important is that he enters the sukh to spend his shekels. The individual may protest against this as much as he wishes, for the individual is free in our liberal society to say what he will. (Here indeed liberalism is different from fascism.) However, the individual will be prevented from organizing collectively to change society. Liberalism prevents this by disallowing any initiative which is deemed to threaten the rights of a collectively defined group. So far as crime is concerned, each crime has to be considered individually, which means effectively that the tolerance of the collective and social roots of misbehaviour continues and this means that the crime itself persists. Nevertheless, liberals are surely right in pointing to influences beyond the individual to explain an individual’s misconduct. A conservative attitude to crime, which is that an individual is generally alone responsible for his/her misconduct and should be punished on the basis of the isolated case alone, is an attitude inherited from the Christian belief in the responsibility of each soul for its own fate. It too ignores the fact that crime is as much or more a collective and not just a personal action (although it is that as well.)
The entire weight of contemporary Western society is placed on the well-being and pleasure of the consumer. Those aspects of life which are concerned with the gratification of biological needs are not only tolerated, they are encouraged and stimulated, but the commercial heating of the biological appetite is deleterious socially and individually. Sex as consumer demand, eating without appetite, beautifying without attracting, all this and more is the mark of a society in which people count for much, the people, nothing. The right of all to participate actively as citizens in the social polis of which all are nominally members, is taken away. People remain largely ignorant in the meantime of their loss of citizen’s rights (in contrast to the much vaunted human rights) as they continue in the pursuit of their individual insistent and apparently insatiable private urges. Justice in this situation is likely to be seen less as an abstract good and more as the actualisation of consumer contractual rights.
There is no Justice in the world, the cry goes up, life is not fair. Much of our idealism is a matter of working to make it fairer. Life seems to us a constant tale of injustice that we attempt to put to right; but most thinkers devote little time to considering what is Justice that we should be so concerned with it, that she forms the basis of so much of human prejudice, opinion, ambition, idealism and constitutes the major part of all religious narrative.
Central to all debate as to whether the lot of an individual is fair or not fair, is the position we take regarding the responsibility each individual has for his/her lot. For Marxists, from Karl Marx himself down to Theodor Wiesengrund (better known as Theodor Adorno, the name which he took from the nom d’artiste of his mother) unfairness was considered an expression of inequality and vice-versa, and inequality was mostly regarded as the outward indication of integral social injustice. In contrast, the conservative philosophical tradition, articulated recently in the philosophy of Joachim Ritter, argued for “compensation” against “confrontation”. But both Ritter and Adorno agreed that modern society suffered from Entzweiung, a breach between the theory and practice of social Justice. Society holds up a mirror of itself more or less “on the right lines” which is in reality a society of alienated people.
Social alienation is the Jewish historical malaise which Marx described in the Economic and Philosophical Manuscripts as typically capitalist. Social alienation, a feeling that there is something inherently “unjust” about the way society is ordered and our individual place in it, is something from which we all to an extent suffer, so close has our society approached a fully abstract cosmopolitan order, (which one may call Jewish or capitalist or both) in which the uprooted individual, no longer organically belonging to the community in which he grows up, feels himself alienated from it, unwanted and abandoned to an unjust, circumstantial fate. This society has no preordained role for the individual. The individual must fight his/her way through as well as circumstances, cleverness and luck permit.
Ritter’s arguments are characteristic of conservative thinking in this respect: heal the breach (between individual and society) with social engagement. It is not possible to perfect a social order because the substance of existence is itself imperfect, or if one will, is an ever unfulfilled Justice. The nearest we approach Justice in a social sense is the extent to which the citizen, the burgher, lives the life of the polis, no longer suffering a separation of the theory of perfection and the disappointment of reality. Disappointment is combated in practice, not with theory. As a student of Ritter’s, Odo Marquard, put it, the modern bourgeois world is neither heaven nor hell, but historical reality. “It is not heaven on earth nor hell on earth, it is earth on earth.” We must make do with the situation we are confronted with and strive to live justly within the narrow circumspection of our individual lives.
The equality which presupposes Justice is from a conservative perspective, best achieved not by Utopian socialist insistence on social Justice as a perpetual and frustratingly never realised ideal, but on successful social integration in the work, in the practice, of the polis. There is much to be said for this conservative insistence on pragmatism in the philosophy of Justice, but it does not acknowledge the consequences in the application of Justice and the imposition of a criminal code and police state as a result of the Machiavellian realities of power. Many conservatives seem to ignore Machiavelli altogether when they write about Justice and a just order (exception given to that Jewish conservative philosopher who is so much talked about these days, Leo Strauss).
It is not possible under the present dispensation of power, to only strive for social Justice within the current system. I say “only” because it is the notorious pretext of any revolutionary not to contribute to the social good by claiming that all pre-revolutionary munificence is irrelevant anyway, even harmful to the cause. This “male” approach to Justice and politics contrasts with the “female” belief that practical problems should always come first, that it does more good to deal with small injustices at home than to strive to save the world at large. In this sense conservative attitudes to Justice are more “female” than “male” and the socialist approach more “male”. It should come as no surprise to anyone that women tend to favour conservative “solutions” to law and order issues more than men. In truth, both views are correct. A just society will only come about when those who strive for political Justice lead just lives. This is the message of Plato and of the New Testament as well. (“Woman, where are your accusers? Go home and sin no more.”)
Neither the pragmatic nor social view of Justice should be lost to view in issues of law and order. Just as in the army, the reaction to mutiny is traditionally two-fold and seemingly contradictory: shoot the ring leaders and sympathetically examine the cause of the mutiny, so in the case of crime, wrong-doers should suffer stiff punishment (conservative solution) and the causes of their wrong doing as a social phenomenon should be critically examined (liberal solution). Modern Western society has moved from the conservative to the liberal approach without having considered the application of both solutions together, but why should one solution be supposed to exclude the other?
The rise in extreme crime in the West in recent years gives strength to both the argument for more stringent deterrent and that that criminals are in large part created by external circumstances. In the case of crime, the extreme environmentalist position as taken by the extreme left amounts to a callous disregard for the victim in the quest to prove that the criminal is him/herself a victim. The Leftist Paul Foot led a campaign for many years to prove the innocence of one of the last people to be executed by the state in England: James Hanratty. In the face of recent DNA evidence which makes Hanratty’s guilt of the murder of Michael Gregsten all but certain, Paul Foot and his kind are curiously silent. The Left seems in principle more concerned with the criminal than the victim, as many social critics have noted. Similarly, the far Left profess outrage that the killers of James Bulger live in danger of their lives without acknowledging how the relations of the victims must feel. (The two year old James Bulger was kidnapped, beaten, probably sexually assaulted and left bleeding and dying on a railway track by two ten year old children). For its part, the populist right cries for blood in every case of this kind while itself offering no other solution than harsher treatment of criminals.
Justice is traditionally blind to outside influence and personal favour irrelevant to the weighing of the evidence to hand. Justice is depicted with bandaged eyes holding aloft a pair of scales. Justice is blind to the standing of the parties involved in a dispute and Justice seeks to maintain or restore a balance between opposing factions. The world must not be dipped or crooked but level and equal. Justice is the quest to maintain or restore harmony, equilibrium and the equal measure which defines harmony (as opposed to discord, disharmony, chaos and ultimately desolation). Justice realised in the pragmatic life of Man is the Law and injustice is chaos, and chaos is the sire of desolation. Desolation is that dread place where Justice is not found.
Those who swim with the tide of their times are honoured and successful. Is this Justice? Schopenhauer, who believed that suffering was the essence of existence and crowned with the injustice at the heart of being, noted the injustice which triumphs in the Jewish myth of Esau and Jacob and which tells that there is Justice opposed to Justice and not always a supreme or higher Justice, and in that case one must give way to the other, where guile prevails over weakness. Esau is deprived of his father Isaac’s blessing by his mother’s famous trick of clothing her favourite younger son Jacob in a goat’s skin so that his near blind father thinks he is blessing his elder (hairy) brother, Esau. Jacob thus steals his father’s blessing from his older brother but he is still blessed. According to the rules of the blessing, it is just that Jacob has precedence over Esau, because he is factually blessed even when the way he comes to be blessed is “unfair”. Esau has no blessing because he has been tricked. At the same time, it was Esau who promised that he would give his blessing away in return for a mess of pottage, years before. Rights and wrongs are here mythically presented as a series of mirrors taking us back into a time where events are no longer visible, so that at some point it is fruitless to argue as to who is “in the right”. Power and/or guile must decide who is right today and what is just. The appropriation of the past, for example in demands for compensation for ancestral victimisation, at a historical level, or compensation for hurt feelings at a personal one, are notions of Justice which gain in importance in a consumer society. The equivalent of the consumer in economics is in Justice, the victim seeking compensation. In this case the demand for Justice is used a pretext in order to obtain financial gain.
This seems to suggest that the philosophy of Justice in a liberal society is weighed in favour of the victim but this is only partly the case. Liberal Justice favours the individual victim not as a person, but as a precedence. The isolated person without lobby or lawyer who suffers injustice should expect neither help nor sympathy in a liberal society. Justice in a liberal society is a battle ground of lobbies, in which the state has abdicated a considerable part of its sovereignty to lobbies and to wealth.
Charging and prosecution are linked to a considerable bureaucracy and work on a kind of “automatic pilot”. Prosecution or non-prosecution may often be a matter of chance, whether or not an individual is caught up in the wheel of the judicial/prosecution process. If it is not begun, often nobody is personally interested in prosecuting even the plainly guilty, but once a person is caught up in the machinery of justice, extenuating circumstances will not help the accused to escape the process of persecution. Recently in Spain, where the abrupt introduction of parliamentary democracy has been followed by a tidal wave of crime, the government has introduced the judicio rápido, a “fast food justice” where the process of prosecution and sentencing is accelerated. The prolongation of the judicial process weakens the notion of retributive justice. Significantly, the evidence from Spain suggests that those who are sentenced are less likely to appeal against a sentence when they are sentenced soon after their crime than when they have had months to put between them and the act. The sword of Justice should be not only sharp but swift.
Swiftness of justice may however also mean, as in the case of new legislation proposed in Britain, that the original principles of equality among peers is weakened. This proposition, laid down in the Magna Carta, is that among persons of equal rank, nobody may be arbitrarily treated on the basis of accusation, that each person is free until a guilt is proven that would warrant a restriction of that freedom, that an accused is presumed innocent until proved beyond reasonable doubt to be guilty, and that peers are all entitled to equal representation in the creation of laws and in the administration of Justice. The fascist, royalist and imperialist principle of Justice, by contrast. all empower a single figure with the right and duty to incorporate sovereign justice over the entirety of the rulers’ subjects, so that the ruler has the power and the legal right to decide what is a just law. The Bolshevist principle was that Justice lies in the hands of a historically determined social class whose representatives are self-elected. In the case of dictatorships, it is impossible to distinguish between the abstract ideal of Justice which a regime claims to serve, and the personal will to aggrandisement and total power, which is the dictatorship’s driving ambition. Only a concept of Justice as existing independently of those who wield it, prevents Justice being a pretext for personal advancement.
In the bourgeois democratic West, where decisions about what is just are based on a belief in the fundamental equality of all human individuals, regardless of their abilities or qualities, much of what is done in the name of justice is the expression of the interests of a group. Under a Rousseau inspired notion of the sovereignty of the citizen, each individual needs the support of an interest group to guarantee his rights. Superficially just, Western society abounds in anomalies of justice. Fortune and success reflect the power and success of diverse lobbies and interest groups. Hard work is taxed, but not a fortune won on a t.v. quiz show. Success in the art world is not so much dependent on talent as on the prospect of commercial success in an environment where such success itself depends on marketing manipulation, and good contact with the manipulators. No society in the past, Rome in its long and evil decadence excepted, was characterised by such subservience to the lobbyist’s power in obtaining “fair treatment” in all walks of life as is ours. Future commentators may point to this subservience to lobbying as one of the most eccentric if not contemptible, features of modern democratic equity.
It is with Plato that discussion of Justice, at least for the culture of the Occident, begins. It was the Aryan Greeks who “created” the ethical individual by distinguishing between what may be just in a state of nature and just in human society. This was the decisive step from the law of nature and nature’s Justice toward man-made Justice. By contrast, the religion of worship of the laws of nature and submission to them, kept man within the ambit of being the object and not the controller of his destiny. Nowhere can this loss of innocence be better seen than in Socrates. Socrates reduced all wisdom to the desire to improve knowledge, not for the sake of knowledge, but because with knowledge we are able to better realise, he said, what is best for us. Our reason is able to lead our “chariot” in a way that our appetite cannot.
Nietzsche’s rage against Socrates can be partly explained by the fact that he could not accept this loss of innocence, could not acknowledge in fact that we are in some ways responsible ourselves for determining our place in society. Both religion and science tell us that our characters are to a large extent controlled by forces outside our control (God/ our genes) and therefore that we are ultimately not responsible for our actions.
Nietzsche remarked somewhere that the criminal was sometimes a misbegotten genius. There may be in the psychology of many criminals a frustrated will, one that will finding an outlet for its energy in crime. Many women feel this instinctively. Condemned criminals are known to receive invitations to marriage from women they have not met. Many who destroy as criminals may later rule as (harsh) law givers. Here power and justice are synonymous. The philosophical problem with the doctrine that right is might is that it is a tautology. If it were entirely the case that might is right, then we always live in the best and most just of possible worlds because those who make the rules today are those who by the nature of the doctrine are justified by virtue of their power in so doing. This is one of the best known critiques of Nietzsche: if the “sick” or unworthy have risen to power then are they not, in terms of power, if power is justified by success, as Nietzsche’s philosophy of the strong would seem to imply it was, by the terms of such ethics, not sick and not unworthy, because and for no other reason, than that they are successful?
At the back of all thinking that Justice is a reflection of power, is the Darwinian view of life as a struggle for the survival of the fittest. According to Gertrude Himmelfarb (Darwin and the Darwinian Revolution) Darwin’s scientific model demoralised man. Where God is removed and replaced by a blind natural force, the dimension in us of blame is lost. Moral man under God is replaced by man the animal created by amoral nature. Both Spencer and Nietzsche confronted this issue and the consequence for ethics. They broadly agreed that “social injustice is just” because it reflected a deeper truth, much as Calvinists believed poverty was deserved because it was proof of wrongdoing before God (a mighty convenient doctrine for any ruling class, as Marxists were not slow to point out).
The difference between Spencer’s ethics and Nietzsche’s is that for Spencer there is an end which is collective, which brings together the egoistic and the altruistic, whereas for Nietzsche evolution is towards individuation and the divergence of interests within the species.
Altruism, and by implication, Justice, flourishes only among those who are similar. Nietzsche’s aristocratic individualism envisages a man who had achieved mastery over himself and the warring factors within himself. People are bound by their nature in the things which they do but this does not relieve them of responsibility for their actions, since their actions reveal their “true nature”. Nietzsche replaces Christian determinism with Hellenic fatalism. The Greeks called it moira. Accept your fate-she belongs to you. But you may also steer your fate, you are also free, free at least if you are Übermensch. And what is the Übermensch other than the Christian reborn Man, the Man purged of sin? From Plato to the Church to Nietzsche, the message is similar: self-discipline and self-knowledge is the way unto true Justice. Injustice is ignorance.
For Plato, all humans are divided between their aspiration to improvement, which was divine and spiritual, and their attachment to their appetites, which diverted them from their higher quest. In Plato’s Phaedrus the human soul is presented in the allegory of the chariot driven by two horses, the horse of nobility and the horse of appetite. In the world after Darwin we might suggest the quest to satisfy the raw appetite takes Homo sapiens back to Australopithecus.
The pursuit of appetite alone is not in our “higher” interest. When an individual dedicates his life to the pursuit of pleasure, doing so will include things which are not “good” for him, which may harm his health. A man may not act in his best interests, and Socrates/Plato argues, needs Justice embodied in Laws to act in his higher interest. For Plato and Socrates speaking through him, “evil” as such does not really exist. What we term evil is ignorance or the consequence of ignorance. It is ignorance of virtue which leads a man to commit non-virtuous acts. A wholly just society would be a society of complete wisdom. This is ultimately what all religions preach in their way, so that only God can dispense ultimate justice, fulfil the craving for justice among his subjects and fulfil the incomplete material world, so that it is ultimately overcome, sublimated by the divine and everlasting one.
The main purpose of the Platonic dialogue was a rejection of the Sophistic force of opinion in favour of a dialectical discovery of truth. Virtue and Justice are therefore a reflection of the knowledge of the truth. In Plato’s polis there were to be no poets. Poets relate untrue tales and promote ignorance, and ignorance, according to Plato, is the source of all human injustice. In the same way, in Bulwer Lytton’s Utopian novel The Coming Race, Aph-Lin explains that literature denoting passions and crime is irrelevant to the perfectly just community. It does not touch them and they no longer write it. In everyman’s Utopia there can be no call for literature worthy of the name, pace Marx’s vague promise of reading in the morning and fishing in the afternoon for all classless mankind.
Justice is at the very least the freedom or the opportunity to pursue not simply self-interest, but, so Plato, enlightened self-interest. Judeo-Christianity ultimately seems to teach nothing more than this, nor does Islam offer us more that that. What religion does not preach the selfish message-do this and save yourself, not others be it noted, but your self? For all its doctrine of love, Christianity preached the self-interest of saving one’s own personal immortal soul, first and last. Nietzsche insisted that no one was capable of doing anything else than pursue self-interest through the power of the will. Plato argued that rulers should be bereft of all interest in their Justice other than as the application of disinterested rationalism. Then they would be the least envied of all, for of all people, they would be least allowed to pursue self-interest, for their calling would be in the promotion of the interests of everyone else. Reason alone is of itself never harmful, argued Socrates. All other virtues depend on circumstances for their quality (of good or ill). This is contestable. Reason for the childlike and at the wrong moment introduced to them can be destructive.
For Locke, the most elementary justice is about the right to property. Property was also regarded as an elementary right by Spengler: Der Wille zum Eigentum ist der nordische Sinn des Lebens. The will to property is the Nordic sense of life, he claimed. Property rights seem to be at the heart of every sophisticated society and the mass forced relinquishing of them after they have been acquired, in a word, Bolshevism, invites a retreat to condition of justice set at the end of a barrel of a gun. Property in contrast to possessions stresses the importance of land, the notion of belonging. Justice grants the right to those who till the land to own it. At the beginning this right began with the “injustice” of a robbery. Either we accept that at the heart of history there is perpetual and seemingly ineradicable injustice, or we agree that justice includes an element of power.
Firstly, we have the well known principle of “do as you would be done by”, meaning that if we act socially in such a manner as to avoid committing acts we would not want others to commit against us, society as a whole and the individuals in it benefit. If everybody cheated in a game, the game would become senseless. If cheating for one person is entirely successful than for the cheater, unless there are extraneous factors at work such as pride, honours, financial gain, the game also has no sense. Besides, as a principle of equity “do as you would be done by” has never been bettered and is the basis of our notion of fairness within Justice. This utilitarian Justice, like all Justice, only functions when those who share it are considered equal before the law. The notion of “do as you would be done by” is hard to apply in relations between say man and beetle, still less to man and virus. The principle assumes that I should “do as I would be done by” in relation to those who are like me, to those I consider my equals and my kin. Not holding to that principle is ultimately hurting myself.
Justice is linked to an acknowledgement of rights, since an injustice is deemed to have been committed precisely when rights are transgressed. What are “rights”? In Morgenröte (§ 112), Nietzsche examines the question and concludes that rights are “recognised and guaranteed levels of power” (anerkannte und gewährleistete Machtgrade). This I think is true, whether measured in terms of physical strength or in terms of assertion. Right is established when it is recognised, but recognition is itself a gift of power. Whether as gift or agreement, a right denotes a power status.
From the American Declaration of Independence, the Declaration of the Rights of Man and the Citizen, to the United Nations Universal Charter of Human Rights, human equality is positioned in opposition to “unnatural” privileges, and Justice is a discovery or rediscovery of an ancient truth. This is the naïve assumption underlying declarations of rights, not that the rights are good or bad, fair or unfair, but that they predate human volition. Whether we see “fundamental human rights” as natural or social, or neither, they are and remain a reflection of power. Democratic justice is no exception.
In the not too recent past, members of religious and national communities were overwhelmingly convinced of the “Justice of the Cause” and the cause excused war and atrocity. Nietzsche famously mocked this by inverting the morality and declaiming a good war justified every cause. Modern society has witnessed a break down of the community consensus about the Justice of the cause. The assassination of J.F: Kennedy was the turning point. Masses of people did not believe what their government through the Warren Commission told them. The doubting of the official version of the assassination (a lone deranged killer) in favour of a conspiracy theory involving the US government itself, believed in to this day by millions, was the beginning of historical revisionism as we know it, an acknowledgement that Justice is linked to the reality of power. From this scepticism arose the notion in Justice of the “fall guy” the “patsy” who takes the punishment for what was concocted and perhaps directed by others behind the scenes.
This belief that God (or History) is on “our side” justified the mass slaughter of two world wars in the eyes of participants, journalists and historians. Members of a national or social group are guilty by association. Hitler himself had stressed the demand for Gleichberechtigung (equal rights) for Germany and it was ironically in the spirit of the hated treaty of Versailles that he claimed the Sudentenland and Austria. This view of collective guilt and collective punishment is still alive; but it is increasingly challenged.
Guillaume Faye (éléments Issue 37) distinguished between a concept of the Rights of Man as formulated by John Locke and by Jean-Jacques Rousseau. For Locke, (Two Treatises on Civil Government 1690), the most fundamental human right of all is the right to property, including firstly the property of one’s own body; property rights for Locke are natural rights because the liberty and reason upon which they are based belong to a state of nature. Society is ideally a pragmatic agreement (social contract) in which liberties are to be defended or restored against the encroachments of political ambition. For Rousseau, on the other hand, politics is the means to ensure the liberation of the citizen from the tyrannies which have accumulated as man evolved out of his natural state.
For John Rawls, when people act out of principle of Justice they do so, “when….they are acting in accordance with principles that they would choose as rational and independent persons in an original position of equality.” (Theory of Justice p.222 Belknap Press). Rawls supports the contract theory of justice against utilitarianism (justice defined by majority decision) and wrote, “Justice is the first virtue of social institutions, as truth is of systems of thought.”
According to utilitarianism, it is possible that a majority will be pleased with a solution it considers just for religious or moral reasons which is nevertheless unfair under the objective criteria which Rawls attributes to the basis of social justice. Under the contract theory of justice, so Rawls, actions are only condemned as “unjust” when they can be shown to harm others. The intense convictions of the majority under the contractual theory of justice do not justify the infringement of liberty. Noting that Justice can only operate optimally under conditions of equality, Rawls poses the question: who will be considered equal? His response is that all human beings who are moral persons are eligible for Justice on the same level. What constitutes a moral person? Here Rawls, as he happily admits, is extremely generous: those that are capable of having a conception of their own good (as expressed by a rational plan of life) and who are capable of having a sense of justice and a normally effective desire to apply and to act upon the principles (ibid. pp 442-443). The generosity follows in these remarkable words, “..the capacity of moral personality is not at all stringent.. Only scattered individuals are without this capacity, or its realization to the minimum degree…..The minimum capacity for the sense of justice ensures that everyone has equal rights.” (p.446). So, first we have the condition, which seems reasonable, then the dismissive comment that the requirement for fulfilling it will not be stringent, and then finally it seems that everyone will pass this particular test in any case, for Rawls tells us that everyone has equal rights. So while Rawls argues the general principle that “Those who can give justice are owed justice”, This is a dubious notion in itself with the giveaway word “can”. We owe justice, according to Rawls, even to those who offer none, so long as they can in theory (!) offer justice; more extreme still: everyone is entitled to justice willy-nilly, so that neither Rawls’ “not very stringent” moral test, nor the requirement that a person could “give justice” (whatever giving justice means exactly) will prevent them from being equal before the law.
Rawls’ optimism in the face of the repeated perfidiousness of human kind and the atrocities which Homo sapiens often commits when given chance and motive, constitutes the philosophical meta-political weakness which such liberalism as his has brought to Western societies. Rawls is effectively stating that because the principle of Justice infers equality, not that therefore some people are not worthy of full justice, not that people must accommodate themselves to the stringencies of Justice, but that Justice must accommodate herself to people. Never a word does Rawls breath of moral equality being deserved or not deserved.
For Nietzsche, it was the definition of the sovereign individual that he could “make promises” (Zur Genealogie der Moral 2/2) which means in the sense of the social contract that he could participate in the decision making of the legislative body, which obviously a slave could not. Rights only exist where there is agreed equality, and in the case of the Rights of Man, this means the equality of all mankind. It is also the basis of the United Nations Declaration of Human Rights, which was approved by the General Assembly of the United Nations on December 10th, 1948, at the time that Eleanor Roosevelt was chairman. One of the leading inspirers and co-drafters of the document, and co-founder of UNESCO, René Cassin, described it himself as a “late continuation of the Decalogue”, which gives force to Faye’s argument in éléments that universal human rights is an ideology which continues the war for a universal “mono-humanist” state that was once waged by monotheistic religion.
The notion that man is essentially good but corrupted, and that once circumstances are optimal, he will become good again, restored to child-like simplicity, is a doctrine made in the teeth of the evidence of nature. According to this theory, justice will become increasingly unnecessary in terms of compulsive force as the human species matures and improves. Twentieth century man has not been inclined to such optimism. Following Hans Dmizlaff, Frank Thiess, writing Reich der Dämonen in the aftermath of the Second World War with Allied blessing (Thiess was a Vicar of Bray-like convert to liberal democracy) followed Spengler and Hobbes to argue (p.25) that living organisms from the amoeba, to Homo sapiens are naturally Raubtier, beasts of prey, (“even the vegetarian preys upon plants”). Man accepts any kind of Justice which is imposed, not out of agreement with it in theory or in practice but out of fear.
Thomas Hobbes believed that Justice must be based on fear because fear is the one emotion common to the entire species and understood by the entire species. For Hobbes, writing in Leviathan, Justice has the entirely negative advantage of preventing humans from tearing each other to pieces. For Machiavelli, arguing even more cynically, Justice is an instrument of power and no more than that, since no eternal truth or universal existed, there could be no purpose in Justice but as an instrument of power, a view later to be echoed by Marx. This view was already simply expressed by Thrasymachus in Plato’s Republic. Socrates demonstrates the fallacy of this view of right is might by arguing that Justice has the vocation to help others because that is by definition what Justice means, helping others out of their ignorance.
The doctrine of the Rights of Man, according to Faye, is an ideology characterised by four principle tenants of faith, which are that 1) The human race is a moral and thus biological unit; 2) The human person has a universal existence/legitimacy; 3) Human nature exists beyond or without human culture; 4) The individual has precedence over the collective. Where universal human rights are accepted, argues Faye, so is the doctrine that each human being is worth the same as another. This is disingenuous: originally the rights of man were conceived as rights at a certain simple level of existence, at which indeed humans are all equal. In all cultures for example, it is agreed that physical pain is in itself a cause of immediately negative sensations. There may be any amount of different reasons in different cultures for applying or even welcoming pain, but the reality of the naturally negative feature of pain is accepted by all cultures, precisely because this is what precedes human cultures and applies to all humans (and not only humans) at a natural level.
Faye is on surer ground where he points to the distinction made by Julius Evola in Man above the Ruins, between the individual and the personality.
From the point of view of understanding Justice, this distinction is important. The individual is the mathematically last divisible element (whether in terms of soul or body) of Homo sapiens. The individual is a biological quantity, a representative of a species. At this level it may be argued that one individual is worth the same as another (although this argument is not without problems-given the different biological potential of different individuals) and here we can speak of universal human rights, for as an individual like any other individual, I have as much or as little right to be protected from harm as my sister/brother. However, as Faye observes, where human rights are applied as a political doctrine with universal application, they reduce by their nature all human beings to the common level of the individual. The human personality, or the human within culture which is what makes him a person, something more than animal alone, acts within a social and cultural context which has its own laws and its own values. If the doctrine of human rights or a universal notion of human Justice valid for all members of Homo sapiens, is to have precedence over other rights, then inevitably, human culture will be reduced to the humanist utilitarianism which lies at the heart of a concept of human rights in the first place.
For this reason Faye launches a battle cry, and propaganda slogan: “the rights of peoples” against “the rights of man”. But to champion “the right to be different” or “the rights of peoples” against universal human rights is facile. Who speaks for a people? However we approach the question of “rights” one fact is indisputable, rights result from an agreement; I acquire rights through my adhesion to some kind of community or contract. In monotheistic religions, this is the compact between God and Man, and the rights and duties of human kind are based on what is laid down in the compact. The option must presumably be always given to opt out of the compact. Rousseau did not think so, since he famously wrote in his Contrat Social that recalcitrant citizens would be “forced to be free” but even such a statement presupposes the possibility that there will be those who do not want to sign up for their own natural rights in the first place. Rousseau condemns them for making the wrong choice and threatens the enemies of liberty with persecution, but he does not threaten them on the basis of what they are but on the basis of what they have chosen to be. This implicitly acknowledges that a theoretical contract is presented to each and everyone of us. Pistol pointed at our head there may be, but the contract is still there and to pursue the analogy, if we have a pistol too, it is far from sure who will sign the contract!
Defending the rights of peoples begs the question: who speaks for the people? Rights of a people are at least partly the manifestation of power of individuals who indeed claim to represent through “God” “Providence” or “History” the destiny of a people, tribe or class, but whose “right” to do so is at least in part the right of force. At the end of the romantic, traditional or religious claim is willy-nilly the pragmatic persuasion of fortune and force. If there is a definition of folie de grandeur, it is when a ruler thinks otherwise. The “realistic” authoritarian defence of state sovereignty is therefore in danger of reducing Justice to the level of the arbitration of a local strong man and to empty Justice of spiritual substance. Against this is the Judeo-Christian inspired morality which preaches a universal Justice based on the premise that all human souls/individuals are of equal value, are one before God/the Supreme Being. The choice is here between Justice in the hands of a supreme ruler or Justice in the hands of interpreters of a universal morality.
According to Professor Paul Gottfried (The Seach for Political Meaning: Hegel and the Postwar American Right) the pro-Israel neo-conservatives in the United States refer to Leo Strauss as the advocate of the universality of Justice who rejected the reductionism (so far as Justice is concerned) of tolerating governments which ignore or abuse the rights of man. Implicit in this is a critique of the notion of the rights of nations as incorporated in the UN Charter and especially Article 2 § 1V, which recognises the right of each state to sovereignty and condemns physical compunction to destroy or reduce national independence. Such affirmation of the rights of nations is anti-rational and anti-liberal in that it acknowledges that force and success play an important role in determining political legitimacy. Since the independence of a state is laid down by the rulers of the state, this article of the UN Charter is a conservative acknowledgement of the power of every political status-quo, the old notion that the de facto holder of power is automatically endowed with the “right” to rule and that whoever attempts to overturn that right is committing an injustice.
The claim, on the other hand, that human individuals all belong to one human race/family, with the corresponding inference that all cultures and nations must acknowledge a higher sovereignty than their own “local” sovereignty, enshrines, in universal rights and universal justice, a paradigm of man as a non-biological Platonic ideal. It seeks to bring back all members of our species to one point, one point at which they may be governed by whoever determines in and of what exactly human rights shall consist. A universal doctrine of human rights means the international application of those rights, the international jurisdiction, the international power, the international politics and not least perhaps, the international(ist) punishments. One human race with one code of Justice begins to exist at the point where human culture ceases to exist. Faye has invented a powerfully descriptive word for this: mono-humanism.
While in Western politics belief in individual rights becomes stronger, there is a decline in belief in one permanent personal soul. In contrast to the Christian and Islamic assertion of the uniqueness of each human soul who strives to be “just” and come to the universal justice of God, is the Hindu belief, also that of Pythagoras of metampsychosis, the belief that souls transmigrate and are not confined to one corporal fate. The primordial conflict of creation, from the Pythagorean or Eastern view, is not between good and evil, which are seen as relative terms depending on the position of the ego and its power in space and time, but between chaos and cosmos; it is the limit, peras, against the unlimited apeorn. Limit and order are the stuff of life itself and the well being of all beings depends on a right mixture (krasis) of the elements of their composition. This is the meaning of harmony, whether in mathematics, in music, architecture or in law. From this perspective, a universal application of any law is problematic, just as the universal application of a diet, of a job or of anything else regardless of the specific features of those to whom it will be applied is notoriously inefficient. For Heraclitus, the tension and recognition of strife/conflict is the kernel of Justice, while for Anaximander it was on the contrary the encroachment of opposites which leads to universal injustice. Archelaus, a pupil of Anaxagoras, argued that if hot and sweet etc have no existence in nature, must we not suppose that Justice and injustice have an equally subjective existence? Then it is all a question of “how you look at it”. There we come to the Pythagorian affirmation that “man is the measure of all things. This instrumentalises Justice so that she becomes, in the Machiavellian sense, a symbol and expression of power without ulterior universal, idealist application.
In an examination of the philosophy of Leo Strauss which appeared in issue 82 of éléments, Charles Champetier distances himself from the position Faye had taken regarding the rights of peoples. Man, notes Champetier, reviewing Strauss with an approving nod in the direction of Socrates, is not the measure of all things, and the light of inspiration he draws is from the macrocosm to which he belongs and not in himself alone. This, according to Champetier, is the argument which also brings Strauss to his extensive critique of historicism and relativism. Historicism was a reaction, so Strauss and Chempetier, to the universalism of the French revolution. It argued that truth could only be experienced in the particular, not the general. The historical limitation of man makes it impossible for man to aspire to the universal. What is viable in one time and place may not be in another.
According to Strauss, there are two kinds of historicist interpretation of events. One interpretation condemns the past by claiming that new knowledge constantly makes beliefs redundant. For example, if we know that the sun is a medium star among billions, we no longer feel disposed to treat it as the God of the universe. Similarly, it is a claim too far to claim that my principles have universal application, because I do not know what future knowledge will reveal. From this point of view, the French revolutionary principles were not necessarily “wrong” in themselves and their time and place but wrong because of their pretensions to universality and immutability. This historicism emphasises the importance of science and progress in achieving justice through historical advances and submits all notions of value and Justice to the reality of the material act.
The other historicist reading, according to Strauss/Champetier, insists on the division of humanity into tribes, nations, and races so fixed in their differences that universal truths cannot be applied in judging them. This radically relativist position means that I may condemn nothing because I cannot or will not apply universals of any kind. As Champetier observes, if I regard all cultures as equally worthy, I can as easily say that all cultures are equally worthless. Since I am unable to apply value judgements to culture I am reduced in questions of Justice to the biological individual, who is the ultimate point of universal reference. Extreme cultural relativism favours the expansion of post-modern humanism and the retreat from social commitment within a cultural framework in favour of universal toleration of human behaviour and universal condemnation of public interference to curtail individual behaviour. All values which are defended in this context are defended in the knowledge of their historical limitation and the cultural value is likely to be regarded as a historical curiosity, not valued out of personal adherence. The cultural relativist who champions the cause of cultures is through his very tolerance of diverse cultures himself in permanent danger of being without true culture (a culture of belief, which is necessarily a culture of preference). Guillaume Faye himself, who once claimed that the system which destroyed human culture was the enemy of all peoples par excellence (cf. Faye’s book, Le Système à tuer les peuples) has moved in recent years to a much less non-judgemental position, voicing hostility to the Muslim presence in Europe. Political and religious commitment must anyway be suspect in a historicist perspective, since commitment implies perpetuity.
The liberal version of this non-judgmental position is to believe that Justice demands that all individuals in their beliefs be treated fairly, that is should be respected in regard to the individual cultures to which they belong. All cultural practices are “equally worthy of respect” and we have “no right” to judge them. This means that either we are forced into a position of increasing impotence regarding what for the culture to which we belong is unjust or immoral behaviour, because we “do not have the right” to judge those outside our culture, or we take the alternative liberal course of adding the provision “provided it does not infringe the respect due to the cultural beliefs and practices of other individuals.” But this emasculates cultural integrity since it denies culture the oxygen of social relevance. If a culture is only respected at the level of the belief of individuals, that culture is not “dangerous”, not effective as a culture because it is denied the power to change society and popular coneptions of Justice. Culture must be exclusive to be effective. It must discriminate.
The relativist position ignores the fact, writes Champetier, that different cultures draw from universals of life on earth- the power of the elements, the fact of birth and death, the seasons, pain and pleasure, heat and cold and so on. Different cultures give different names to the same things but in the same cosmos. The relativist position as such was for Strauss exemplified in the argument of Max Weber that all judgements have to be value-free. What did Weber mean? In effect that a judgement has value to the extent that it is true and only to that extent, which being the case, all value judgements obscure to a greater or lesser extent the scientific objectivity of seeking the truth. The values of the past are doubly relative, according to Weber, firstly in that they are historically limited to the knowledge available at that time and secondly in that they were related to the interests at that time of those who made them. Strauss responds to this by arguing that Weber’s philosophy (or methodology, depending on how one sees it) was itself a dogmatic affirmation in which was concealed a faith in Progress and human historical processes.
The two words which Champetier believes will be key words after post-modernism are “sense” and “destiny“. Justice, to exist at all, must make sense, and must be conscious of a destiny, for with no destiny what would be the meaning of crime and the meaning of punishment, and why would we take a philosophical interest in either if there was no sense to our Justice? The sense of Justice is her practical understanding, the destiny of Justice is her understanding of her historical position.
There is Justice in the broad sense of Lady Luck and life herself and there is Justice as applied to society. Talking about Justice requires that we talk about both. Does Justice exist in nature without human beings? It seems that we can only say that it does in a phenomenological way, in that we interpret the phenomena to be just or unjust but that they do not exist as such unto themselves. We can on the other hand speak without problem of luck. In a world without humans it is objectively “bad luck” for monkey x that slips on a stone and is caught by the leopard while monkey y escapes, but it makes no sense to call monkey x’s fate “unjust”. In the sense that Justice comes from jus, the law, then indeed all in nature is just because all exists by virtue of the laws of nature and by definition, not otherwise. All human attempts at Justice are an intervention in a course of events in a quest to restore a sense of balance which those events are understood to have disturbed or where nature is deemed to offer inadequate balance in a civilization. Life is so full of the unplanned and providential that there will be always room to call life itself unjust. What happens to us happens “beyond good and evil”. Inshar Allah, God wills it so.
Justice, the implication is, is only relevant to man and free man at that, natural justice being merely a description of evolutionary processes. This sounds as if Justice were something introduced by men independently of nature, that Justice is literally unnatural. It is exactly the opposing argument of social Darwinians that Justice exists within nature and predates man and that the sacrifice of the weak is indeed a recognition of Justice. The oppression or exploitation of the weak is justified by appealing to Nature. Morality from this point of view means accepting Justice as it exists in Nature and adapting it to human society.
For a large period of human history belief was firmly rooted in the divine origin of law. Law had been given to the first law makers by the Gods or a God. Moses brought the commandments of the ineffable down from Mount Sinai. Apollo was the mouthpiece of Zeus. Religion was not a matter of personal conscience separate from the state. It was the morality of the state itself, which meant that among the Hebrews, the Babylonians and the Ancient Egyptians, religion was the voice less of God, than a coterie of priests who interpreted His word. In The Controversy of Zion, Douglas Reed condemned the Justice of priests which reached, according to Reed, its apogee in Zionism, the most hateful religion, according to Reed, to afflict mankind. Zionism, so Reed, is a religion of racial separation and arrogance which with and through religion, justifies the right of one tribe to exploit and eventually rule over all of mankind. Christ came to preach the doctrine of universal Justice and that all men are brothers, and that for Justice’s sake, the claim of the Jew and the non Jew are equal in the eyes of God. God favours the just man, the good Samaritan, not any favoured race. For Reed, Christ’s message was that each of us should take into our hearts the universal apprehension of the essential force of perpetual Justice, summed up in the doctrine “love thy neighbour as thyself.”
In society, Justice attempts, certainly social Justice attempts, to rectify a perceived imbalance among members resulting from strength, fortune or any other factors which have led to the creation of more wealthy or more powerful members or both. Plato noted that the success of the state is a matter of Justice and organization. We need organization to provide the optimal circumstances for each person to pursue what he or she is best suited to do, and we need Justice to ensure that the organization is not abused by the strong in interests which are not those of the polis as a whole. So far as the polis is concerned, the interests of the state, or taking it one step further, the race, since the race is biologically created, and the state a temporary socio-political practical construct, depend upon a disinterested Justice. “Disinterested” means here not to be locked into personal advantage of any kind but in service to what is beneficial for the self at the highest “impersonal” level of the perpetuation of extended self, of like-to-self, of kind. Justice is the application of rules to which all have knowingly (in the form of human social organization) or in the case of biological and genetic essence, unconsciously /unknowingly, “agreed”.
The starting point for discussing Justice is a starting point of equity, of equality. “Fairness” is Justice in detail. So, where equality is brushed aside, while all may be well from the perspective of an elite or of glory or of efficiency, it is irrational in the extreme to argue for a state of disregard for Justice and simultaneously claim that inequality is “fair”. Either inequality is a wrong which should be righted or it is in some sense “fair” in terms not of social but of biological/natural Justice.
[The remainder of this essay is available in the print version.]