philosophical concepts for law
justice
injustice: conscientious objection
sovereignty
sanction
pluralism and tolerance
equality and difference
beyond justice
JUSTICE
definition:
“the constant and perpetual desire to give
each man his due right”
forms of justice
• legal justice (legality): the conformity of social
behaviour to the laws
• commutative justice (corrective, compensatory,
contractual): the correctness of exchanges
between individuals
• distributive justice (allocative, distributive,
dispensatory): equity with assignation
• ontological justice (natural): recognition of the
entitlements of every man
legal justice
formal observance and external
correspondence of the behaviour
commutative justice
bringing reparation to private relations
controls the fairness of exchanges
(procedural), transactions and contracts
rectifies wrongs (fraud, theft or violence)
linear, bilateral, (inter-individual) direct (as it
refers to the relationship between
individuals, irrespective of social
mediation), regulated by the criterion of
arithmetic equivalence
distributive justice
allocation of assets that can be divided
among the members of the political
community
triangular or tri-polar, hierarchical, indirect (in
that the inter-individual relationship is
mediated by society as a whole) in the
public dimension, criterion of geometric
proportionality
ontological justice
recognition of equality between men as an
absolute good (not relative) and universal
good (not particular)
symmetry (between rights)
reciprocity (between rights and duties)
formalistic theory
justice: giving (in the sense of attribution) to
each individual (to whom political power
confers legal status) his own (what power
formally establishes he is due)
the decisions of political power (that decides
how much, how, and to whom to distribute
to
reduction of justice to legality
objection
the subordination of law to arbitrary political
power
(law = politics)
liberal-libertarian theory
justice: the protection of autonomy
“not harming another”
harm = coercion
another = the free individual
“giving to each his own” = assigning to every
free individual resources and goods
according to merit, capability, contribution
given, free initiative
minimal State/maximum market
R. Nozick (1938-2002)
to “rectify” the problems of the state of nature (the
hypothetical situation of absolute freedom),
acknowledges the need to establish “private
protection associations” to institutionalize the
“dominant protective association”
ultra-minimal State (which protects only those who
pay) and the“minimal state” (or “night
watchman”) with the function of guaranteeing
the execution of contracts
liberal-libertarian theory
- no one is responsible for natural and social inequalities
- the results of the “natural lottery” (i.e. the distribution of
advantages/disadvantages by birth) and the “social
lottery” (the distribution of advantages/disadvantages in )
are unfortunate, not “unfair” or unjust
- society is not obliged to compensate for the differences
or repair damage, since there is no “direct duty” to help
the needy and compensate the weak
(“sympathetic” attitude towards those who are most
marginalized and defenseless: the need of others should
not “affect”, bind or constrain individual freedom)
objections
a) excludes non-free individuals (i.e. individuals not yet or
no longer able to exercise freedom)
b) does not adequately take into consideration the social
effects of individual free actions
c) indifference to needs, considering altruism a mere
accidental subjective option (never binding)
d) logic of profit
e) a utopian model as it is based on hope (as in A. Smith’s
“invisible hand”) where social harmony is spontaneously
generated from the free play of individual liberty
social egalitarian theory
the emphasis on social needs rather than
individual freedom
protecting freedom in the context of
recognition of equality between individuals
the exchanges between individuals are not
only bilateral, but mediated by society
(affirming the priority of public over private)
maximum State/minimal market
J. Rawls (1921-2002)
“original position”/“veil of ignorance”: agreement on justice:
a) the principle of equality (the protection of freedom is
limited by the recognition of equal freedom for all)
b) the principle of difference (or compensation for
substantial economic and social inequalities through the
“maximin” rule, by which distribution is just if it produces
benefits to compensate the least advantaged, therefore
even the sick)
society must “take charge” of inequality, there is a social
duty of solidarity, cooperation and altruism
social egalitarian theory
“giving to each his own”: giving "to everyone
equally" (or giving the individual a share in what
belongs to everyone in determining the portion
of the common good that each person has a
right to because he is part of the community)
and the social value to “bring what they need to
penury” (with special recognition and support in
situations of weakness and fragility)
natural and social inequalities, in a society of
cooperation and solidarity, are to be “corrected”
and “repaired” (as deemed unjust), in the
continuous effort to compensate for diversity.
objections
a) non recognition of inalienable individual
rights claimed against the social whole
b) expansion of the powers of the welfare
State (with inevitable heavy fiscal
intervention and excessive bureaucracy,
in addition to the risk of inefficiency of
services)
natural law theory
“not harm anyone”: protecting (in the
negative sense) and respecting (in the
positive sense) the life of every human
being
“harm” = every suppressive, experimental or
manipulative intervention of human life
“other” = every human individual
natural law theory
the inviolability of the life of every human
being
sociability, solidarity, and subsidiarity
the obligation to cooperate for the good of
society with particular attention to those
most in need
INJUSTICE
how does one behave before an unjust law?
the condition: the acquisition of a critical
awareness of the injustice of laws
by the jurist
by the citizen
the jurist
- moral duty to work for the repeal or the
reformulation which adjusts the positive
law to such ethical needs
- moral duty to abstain from cooperating in
the formulation of such laws
the citizen
conscientious objection: manifestation of dissent
towards the order of authority or legislative
prescription through an appeal to conscience
the ‘right to resistance’: the negation of the validity
of the law of the state (illegality of the state
authority)
‘civil or civic disobedience’: deliberate infringement
of the law (often as a collective phenomenon),
aims at causing the sanction by creating the
reaction of public opinion for the purposes of
reforming the legal system
conscientious objection
the personal choice (expressed by an
individual or a minority) to publicly and
non-violently disobey the ‘external law’ and
to obey the ‘internal law’
natural law theory
the duty of the moral conscience to refuse
obedience to the unjust positive law in the
name of the obedience to natural law
an appeal to the legislator to the translation
into the positive laws of the dictates of
natural law
witness (on a theoretical level) and
denouncement (on a practical level) of a
‘bad’ use of power
legal positivism
the positivity of the law considered a dogma
an ‘apparent’ contrast between exterior and
interior norm
conscientious objection becomes a mere
neutralisation technique of dissent by the
legislator or a mere pragmatic choice,
induced by psychological and not really
moral motivations
SOVEREIGNTY
the relationship between law and politics
sovereignty = the exercise of political power
(modern times in Europe with the birth of the
national states and the decline of the idea
of a universal legal system)
the political power within the state (internal
sovereignty) and in relations among states
(external sovereignty)
legal positivism
- subordination of law to politics
- positive law is the instrument and product of
political will
power is absolute: no juridical limits binding it
power can (should it want to) assert its own will (do
what it wants and when it wants) as a mere
factual exercise and imposition of force
despotic and tyrannical dominion
.
legal positivism
‘power for power’, without justification, with
the single objective of obtaining
advantages for itself (self-conservation)
an imposition of the strong over the weak
political absolutism which can be illuminated
(if it opens up to others), but can also be
oligarchic (to the advantage of some) or
totalitarian (to the advantage of the power
only)
natural law theory
- the super-ordination of law to politics
- positive law is produced by politics, which
is subordinate to meta-positive law
power is bound by the law
natural law theory
power demands a justification: the
foundation of the legitimacy of power: the
common good
an arbitrary power would be a ‘corruption’ of
politics’ and disobedience to power is
legitimate and dutiful
ihis is the theory that leads to the theory of
‘rule of law’, in the context of
constitutionalism or neo-constitutionalism
natural law theory
rule of law: the sovereignty is the expression
of the ‘government of the law’ (and not of
the ‘government of men’)
in the constitutional rule of law all powers,
including the legislative one, are
subordinate to law
political power is defined by constitutional
law (internal) and international law
(external)
contractualist theory
the origin of power in the contract, stipulated
among citizens who delegate a part of their
freedom to the management of the sovereign
- individualistic anthropological conception
- the state is born from the agreement (accidental)
among wills
absolutism (if power is absolute, as in Hobbes),
liberalism (if the sovereign recognises the
individual right to liberty as binding, as in Locke),
or democracy (if the will is identified with the
whole people, as in Rousseau)
the organicist theory
a relational anthropology (man as a social
being)
the state as an original phenomenon (which
exists in nature independently of man’s
will) and necessary for social coexistence
theory (supported by Aristotle, St. Thomas
and Hegel) led to both absolutist and
democratic outcomes
politics
a ‘form of associative coexistence’ (extrinsically
guaranteeing bonds between individuals and
avoiding conflicts), ‘closed’ in so much as being
structurally ‘integrative-excluding’
a) aggregation of individuals
b) excludes some
c) the common good as a regulating value
d) Solidarity: a constitutive value can guarantee
bonds among individuals
SANCTION
political power guarantees the application of
juridical norms by means of the sanction
various conceptions of sanction and their
juridical function
legal positivism
the sanction: the formal effect that the
positive legal system links to juridically
important human actions
an action carried out on behaviour that is not
in conformity (illicit), so as to nullify or
neutralise the harmful consequences of
that action or to prevent action that is
different with respect to the norms
legal positivism
every normative system foresees an answer to
their violation (the sanction)
two cases: system without sanction
a) norms that are perfectly adjusted to the
propensities of the receivers (in a perfectly
rational society where individuals obey
spontaneously)
b) norms in an automatised society where
individuals are mechanically faithful to
prescriptions
theory of general prevention
- the individual is defined by instincts in the search
for pleasure, joy, happiness, avoiding and
eliminating pain, suffering, unhappiness
- the individual acts out of individual egoistic
interest (through the costs/benefits calculation)
the threat of punishment and the correlative fear of
suffering: the aim of dissuading, intimidating and
deterring the offender, producing a countermotivation to follow individual usefulness, to the
extent that it harms social usefulness
theory of special prevention
- man is organised in a society, where deviance or trouble
cannot be eliminated and where it is possible to
neutralize the factors of deviance and disturbance
the aim of punishment is: preserving organisation and
social integration, eliminating deviances; preventing
certain subjects from committing infringements of the
normative system in the future
intimidation (psychological) as discouragement from the
committing of future offences (producing a psychological
mechanism of counter-motivation to disobedience)
theory of social defence
- determinist conception of man (behaviour
is conditioned by external factors, the
search for usefulness or the preservation
of social organisation).
- the recording of the most statistically
frequent offences considered dangerous
to society
the aim of punishment: preventing the most
probable offences
theory of amends/correction
- assuming the existence and the knowability of
an axiological system
- the re-educability of whoever has committed an
offence
the aim of punishment: produce an interior
regeneration, an explicit renunciation of the
committing of other offences
the entity of the punishment is measured
according to the finalities of the punishment that
is considered a moral good, the aim of reeducation
objections
• social usefulness, dangerousness,
intimidation or re-education: aims external
to law
• sanctions could be reinforced, become
cruel and lengthened/ weakened,
humanised and shortened (with respect to
the seriousness of the act) to obtain a
preventive, intimidatory or pedagogical
effect
objections
• possible decriminalisation of serious nonfrequent or non-exemplary offences or
excessive penalisation of non-serious but
frequent or exemplary offences
• the risk of the exemplary punishment and
the scapegoat, making individuals to
whom hard punishment is given social
symbols to discourage the committing of
offences
theory of retribution
the aim of the punishment: to punish according to justice
a) co-existential action is good, anti-coexistential action is
bad
b) the bad is intolerable (it cannot be juridically forgiven):
there exists a ‘duty to punish’ and a ‘right to be
punished’
c) commensuration of the entity of the punishment to the
seriousness of the offence according to justice
d) the aim of the punishment: re-establishing the axiological
balance
theory of retribution
a) (not the ‘law of retaliation’, in inflicting the
same physical suffering that the offender
caused); the anthropological commensuration
= humiliation of the arrogant will
b) suffering is the condition (even if it is not the
guarantee) of atonement
c) the juridical regeneration of the offender, the
recovery of the lost juridical innocence (even
though it is not possible to assess his moral
regeneration too)
theory of retribution
‘retribution’ = to make the criminal or anticoexistential will retreat, to the common
coexistential measure or to peaceful
coexistence
(Kant and Hegel)
positive sanctions
a possible answer from the law to a meritorious act
to strengthen social cohesion
no symmetry between negative and positive
sanctions: negative sanctions are due, positive
sanctions are not due
a) poor resources of the state, insufficient to
reward all meritorious acts
b) the meritorious act were carried out in view of
the prize it would lose its internal moral meaning
(meritorious actions should be carried out for the
simple reason of wanting to carry them out,
independently of the consequences)
PLURALISM/TOLERANCE
• cultural pluralism is more visible: cultural
anthropology; the migratory movement
• the coexistence of different ethnic groups
in the same territory
• globalization: solutions to problems within
a culture often have implications outside
ethno-centric theory
• one’s own culture is superior to all others
in a hierarchical view (imposition of one
culture over other cultures, considered
inferior): absolutization of one culture
• colonialism/imperialism/paternalism
ethno-centric theory
• “model of assimilation”: those belonging to
other cultures adapt and adjust to
“mainstream” culture, conform to the
dominant culture
• “model of subordination”: possible
exploitation
objection
• an arbitrary imposition of one culture as
superior
• an attitude of unjustified intolerant
“arrogance”
multicultural theory
• relativist prospective: all cultures are
equivalent
• tolerance: passive and indulgent
acceptance of every culture without
making any ethical judgement
multicultural theory
• juxtaposition of multiple and diverse
cultures: the search for common values is
futile and undesirable, considering plurality
better than unity as an expression of
richness and originality
multicultural theory
• “model of separation”: each culture is a
“closed” world (which internally affirms its
own values and preserves its own
traditions) and externally tolerates any
other bioethical culture
the individuals of different ethnic groups
should be guaranteed by the broadest
possible conservation of what makes them
different
objections
• the principle of equivalence as neutral and
uncritical acceptance of every culture is
unable to avoid cultural conflict among
cultures which are opposing and
incompatible (allowing the stronger culture
to prevail over the weaker one)
• equivalence can lead to self-closure of
each culture in itself, resulting in
incommunicability
intercultural theory
• against hierarchy among cultures and
against equivalence
• every culture is judgeable: it is a duty to
express judgement on different cultures:
not a judgement of superiority or inferiority,
but a judgement of truth in reference to
human dignity/social coexistence,
considered as the minimum common
value
intercultural theory
• equality must ensure that all men, regardless of
cultural belonging, have the possibility of
knowing each other as human beings (before
realisation of their belonging to a specific cultural
group)
• affirming equality means assuming the
differences: equality is the precondition for
“recognition” of the “differences” as significant
interaction between human beings
intercultural theory
- critical search for continuous mediation
and integration of human rights and the
specific needs of diverse cultures
- affirming the relational logic of diversity in
equality
EQUALITY/DIFFERENCE
objection of relativism to equality: neutralises or
conforms differences (nations, sexes, cultures)
a) in-difference (or ignorance or the inadequate
consideration of differences)
b) the assimilation (or annulment or cancellation
of differences)
introduces the discrimination of diversity
relativists propose the substitution of difference to
equality
equality
the substitutability between two terms in the
same context
formal equality or equivalence: the allocation
of the same rights or guarantee of the
same treatment in an abstract sense
substantial equality: the concrete recognition
of rights conditions
equality
the subjective factor: the receivers of the law
individuals are equal if subject to the same law and
system of sources (equality before the law); the
norms must be general and abstract
the objective factor: the contents of the law
equality must attribute/distribute equal goods at
equal conditions, making subjects equal and
excluding differentiations for subjective and nonobjective reasons
equality
the principle of equality: to treat equals
equally and the different differently
a) to recognise equal dignity to every
human being, in a universal dimension
that refers to ‘all’
b) to consider the factors of diversity, to
compensate, rebalance disadvantaged
situations (physical or social), also with
positive temporary actions)
equality
- the law considers man as man, regardless
of the differences
- equality has priority over diversity, but
cannot neglect or deny diversity
- the absence of a dialectic between
equality and diversity can lead to two
results: undifferentiated equality
(absolutisation of equality) and unequal
difference (absolutisation of difference)
BEYOND JUSTICE
the limit of law: coordination of social actions
from an external point of view in order to
avoid conflicts and to overcome disputes
(to realize justice: equality, symmetry,
reciprocity)
beyond justice: care
care
a) a-symmetrical relationship: to take care
means to recognise that the relationship is
not always on equal terms or symmetric (a
contractual relationship)
the person caring is in a position of strength;
the person needing care is in a condition
of weakness, fragility
care
b) a-reciprocal relationship: to be concerned about
someone, independently of what is obtained in
exchange, in an attitude of trust
c) an interior/spontaneous attitude that is
translated into behaviour or concrete action in
reality, in situations and specific contexts of daily
experience: involves sentiment, empathy (the
participation in the other’s experience),
compassion (the identification of oneself in the
experience of the other)
care
d) it is a process, a task, an active
commitment, a constant tension; a virtue
therefore that one acquires in the habit of
behaviour, sustained and accompanied by
a strong personal motivation
objections
- the care of oneself as self-referential narcissism or the
care of others for themselves
- the emphasising of care as the affirmation of power,
dominion, force (accentuation of weakness and
dependence on others)
- excessive care becomes prolonged (treating at all costs),
suffocation, oppression that produces dependence in the
other who does not free himself of the care
- the excess of care of others can lead to them neglecting
themselves, to a physical and emotional break-down
the improper uses of care do not invalidate its sense
(proper); the fact that care can be used in a distorted and
inappropriate way does not impoverish its authentic
ethical sense
care/justice
• care is not identified with justice, care
does not substitute justice but care
integrates the sense of justice
• care allows the recognition of others not
only rationally as socius but also
empathically as fellow creature, with interpersonal, sentimental and experiential
relationality
care
justice and care permit the combination
between abstract universalism and
concrete specificity
care goes beyond justice in the recognition
of the value of solidarity, in a public and
universal sense