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Remota Justitia: Preliminary Considerations for a Resumption of theDebate of Ethics and Politics

«Remota Justitia: Preliminary Considerations for a Resumption of the Debate of Ethics and Politics»

by Remo Bodei

Source:

PRAXIS International (PRAXIS International), issue: 2 / 1986, pages: 124-147, on www.ceeol.com.

http://www.ceeol.com/



http://www.dibido.eu/bookdetails.aspx?bookID=278fdab8-6070-4d5d-8b55-8233eda499d4




Vol 6 2 A Philsophical Journal July 1986redigitized by Central and Eastern European Online Library - www.ceeol.com

REMOTA JUSTITIA: PRELIMINARY

CONSIDERATIONS FOR A RESUMPTION OF THE

DEBATE OF ETHICS AND POLITICS*

Remo Bodei

I. A retrospective view

(1) In the English-speaking world, talk about ethics is recognized to be a

„hazardous business“.1

In Continental culture it may even look funny. Just bymentioning the word ethics you may cause “allergic reactions”.2 Such a word,along with its companion “morals”, often recalls useless sermons, endless and

pointless quarrels, repression of instinctual drives, senile complaints concern-ing the iniquity of present days. This rejection may reach the point where it

provokes the symptoms of physical repulsion. Then morals may be associatedwith some out-of-date taste, with the viscosity and density of liquids fromwhich the best has already evaporated, and only the too fat and too sugaryresidues are left. It may recall sticky “rosolios” or, as with Musil, greasy

broths: “Nowadays one cannot repel sometimes the impression that conceptsand rules of moral life are only overboiled parables, over which an intolerablygreasy smell of humanity wavers”.3 The most benevolent may think perhapsof morals as some kind of parasitic tree, of a creeper that needs to cling to the

trunks of politics, law and custom, in order to survive and to grow. Withoutthe support of the realities it criticizes and ghts, it would immediatelycollapse. Others think that it is not even a real problem, as far as, on the onehand, idle talk falls silent when faced with the hard rebuttals of history, andon the other, everybody knows, or thinks he knows, what is good or bad for him within the framework of existing legal and customary rules.

The „end of morals“ then is announced and boosted. Other devices, moreeffective and exible than moral rules, are supposed to regulate the conduct of individuals and groups. Social control is obtained through the moresophisticated means provided by mass-media and by the new ways of “ritualization” of individual and collective behaviour that channels aggressiveand cooperative drives,4 as well as through the powerful techniques and

rhetorics of discussion and persuasion, of punishment and incitement. Anyrigid code of conduct becomes a hindrance. Moral conscience, whichappeared once upon a time to be the sanctuary of freedom and dignity of theindividual, the stronghold of good will and of resistance to whim andoppression, seems to be the resonance-box of authority and of externalcommands.5 Or it seems rather to be, as suggested by Nietzsche, the voice of the “instinct of the herd in the individual”, an imaginary place where onlylivid resentment is able to live.

* translation by Sergio Cremaschi revised by Remo Bodei.




Praxis International 125

Such widespread reactions should hardly amaze. We are to some extent theheirs of converging traditions that have been over centuries describing moralsas powerless, or unreliable, or hypocritical. This description very often echoesvanished hopes and disappointed expectations. Modern civilization was born

by hiving off politics and law from ethics and by constituting them intoself-governing regions. Hasn’t modern civilisation divided the unitaryAristotelian substance, i.e. the forms of the “good life” into parts? Hasn’tMachiavelli severed politics from the wider framework of the “good life” andstated that “se gli uomini fussino tutti buoni” his teachings would not be goodat all? So, modern politics developed occupying territories that previously

belonged to ethics as well, and pushing ethics into more and moreinhospitable and desert areas, where its voice could hardly be heard. Men are“wicked”, and they are not able to want and to do what is good without

coercion and fear of this world’s punishments. The logic of individual action isnot able to allow the survival of large human groups. On the contrary, it leadsto unintended results: goodness and loyalty of a prince are dangerous to thecommonwealth. Where conict rules, carrying along violence and cunning,you cannot trust morals. The borderline between private and public spaceneeds to be drawn as sharply as possible because of the two different and evenopposite systems of rules which are accepted on the two sides. Politics hasreasons unknown to the reasons of morals. Nevertheless, the attitude that

politics has to morals swings between bad consciousness and forcedacknowledgement. The prince needs to show moral qualities, because “men ingeneral judge more through the eyes than through the hands; becauseeverybody can see, and only few can touch. Everybody sees how you appear,while few feel what you are; and those few do not dare to face the opinion of

the many who have the majesty of the state to defend them ... because themob can always be conquered by appearances; and in the world there isnothing but the mob; and the few cannot nd room in the world when themost have a place where to lean on”.6 In a manneristic, and later on, in a

baroque context, politics appears to be theater, to be “honest dissimulation”,a craft whose secrets should not be revealed to the mob, for which the rules of appearance hold. Viewed from the standpoint of traditional virtues, or from

below, political action appears to be hypocrisy; while viewed from thestandpoint of the “majesty of the state” or from above, political actionamounts to the attempt of the individual to get rid of the past, of his occasional

psychological characteristics, in order to be able to play a collective role,following a different logic. As a consequence, the prince is entitled to do

things that the individual citizen is not allowed to. Morals fall into disrepute asthe prerogatives of the state grow wider and stronger. Facing politicaldissimulation, and arbitrary absolute power, moral conscience is encouragedto present itself as the ground of a not ofcially acknowledged truth, of a

justice dependent not on the State but rather on nature or reason, related not tothe will of the individual, but rather to the consent of everybody. Classical

Natural Law philosophy opposes the social contract, that is, a political marketeventually open to everybody, where law and allegiance are traded off, tomonopolization of politics by the sovereign, or to the claim of an individual of having the right to decide what is true and what is good. In the social contract,




126 Praxis International

the subjects express their will not to grant allegiance because of passivetrustfulness or because of fear, their will not to give up all their rights, not toentrust power to anybody once for all. Authority does not spring any longer from a hidden source, that is from God, and sovereigns are not any longer itsnatural and sole holders. It stems rather from the people and it may be visiblyfounded, negotiated, legitimized. The social contract is based on an ideal of commutative justice and of distributive justice: political exchange needs notonly to be fair (to rights that are given up, should correspond proportional

benets, like protection and order), but benets and costs of socialcooperation should be divided in a way eventually acceptable to all thecontracting parties. The concept of alienation is central in this context, as it

provides a bridge between the individual and the State, between ethics and politics, which has been acknowledged for a long time. It has been connected

from the very beginning with the idea of property, and represents even theother side of this idea.7 I can alienate only what belongs to me, and rst of allmyself and my “rights”, of which I am the owner. The problem arises: whyand under what conditions should I give up my natural rights? that is, whatare the benets of this exchange, and what are its costs? As in every privatecontract, there is some kind of calculation of what is given and of what isreceived. Natural Law philosophers are divided on the point of the possibilityof exchanging everything. On the one hand there are those who, even if withdifferent aims, understand that everything is negotiable (Hobbes andRousseau); on the other there are those who establish some limit to exchange,who hold that there are unalienable natural rights, which are not includedwithin the negotiable amount of goods. Pufendorf, Locke, Thomasius, Kant

exemplify, even if with some differences, such a standpoint. This distinctionleads to further implications: the rst group developed political theories thatstress the function of the State or of other kinds of collective will, while thesecond group developed theories that rather defend individual rights. But inthe contract, the property of ourselves implies also the loss of ourselves assupposedly natural beings, and the formation of a new identity that is acquiredin modern States. The real point—behind the ctions of Natural Law

philosophy—is a negotiation of the new role of the individuals within the political space, a delimitation and regulation of two different logics that aresymbolically dependent, the one on ethics, and the other on politics.Alienation becomes the legitimising link between the citizen and the State, thewaiver of the old state of nature (that is the reverse of the new order) and the

acknowledgement of the constraints implied by the political situation. But it isrst of all a compromise between the claims of modern politics and the claimsof ethics, that are expressed however in a legal form, as unalienable naturalrights. This kind of Natural Law becomes the stronghold of morals, of individuals, of private parties, against the all-embracing claims of the absoluteState. In such a way ethics grants autonomy to politics, but it delimits its ownspace, that is a free trade area under everybody’s jurisdiction; politics agreesto respect this area, even if it reserves the tacit right to make raids into thisarea in emergencies. How difcult and unstable this agreement was, is shown





by almost two centuries of European history. In a conscious or in anunconscious way, the ethical claims wear away the foundations of absolutisticStates, endanger their pathos and their power of attraction; on the other hand,the “hard” necessities of politics push towards a restriction of individualrights, and to the subdivision of universal principles into a complex casuistry.Two powers, which orginated from an armistice, with approximate bound-aries, from time to time bleed each other in silent wars with wearing outstrategies. Both undergo a crisis, originated by a deprivation of energies, atransformation of both into a caricature of themselves, into a half that isunable to nd again the other half, and that would be unable to makesomething valuable out of the sum of two defective things. Politics, in that“age of crisis” that is the 18th century, presents itself as empty lawfulness,expression of an authority that is not any more legitimized by consent or by

custom (and this is the source of stress being put on the “spirit” of laws), whileethics presents itself as empty morality (in the sense of Hegel’s Moralität, ascontrasted with the living ethic, with Sittlichkeit ), as a collection of rules for

private use, a ground for beautiful souls or for hopeless rebellions, like the oneof Karl Moor in Schiller’s The Highwaymen. The State, being devoid of a lifeof its own, being reduced to a container of force, is able to enforce onlyexternal respect of laws (that become in such a way merely “positive” laws), towin obedience to them through a violence that is greater and less justied thanthe laws that are not spontaneously obeyed; the individual conscienceconstitutes itself into a court of the world it delegitimizes institutions, even if it pays lip-service to them; it creates its own laws and presents to transformthe maxim of individual actions into a universal legislation through a purely

logical procedure; it claims to judge (from its own vantage point that has been justied by universal reason) the consistency of political institutions and evenof history. As a last resort, when it is not any longer able to grasp thecomplexity of the ongoing processes in terms of its Gesinnungsethik, it maystate with embittered wisdom: at justitia et pereat mundus! Objectivehypocrisy, which seemed to be peculiar to politics, unavowedly worms its wayinto morals as well, and the suspicion is raised that, in a wicked world, goodrules may produce bad effects, that they do not contribute to improvement of this world and they encourage detachment from it. One follows such ruleswith a split conscience or with the sad and catastrophic pride of Samson.

The problem at this stage is the following: how to revive politics and how tomake ethics more concrete? How to come out of this deadlock, of a legislation

and politics reduced to a mere façade, to “appearance”, and of a morals thatsubstitutes in the inner realm of conscience the lacking legitimacy of authorities and institutions. A few solutions have marked our tradition, andthey are still accepted in several versions. Firstly, there is the solution of Rousseau, later revived by the Jacobins, according to which “those who wantto make a separate approach to politics and to morals, will never be able tograsp anything of the two subjects”.8 That means also that the realm of interest and the realm of ethics should not come into collision with the generalwill: what is required is to act so that “justice and utility are not divided”.9





The Jacobin political project rests on the possibility of bringing together again politics and morals, of revising the border between public and private space.10

The bankruptcy of this project will later be justified by the moralistic“abstractedness” of the “immortal principles” of 1789, that is, by the perverseeffects produced by the lack of separation of politics from morals, and by thewill to bring into reality the ideals of freedom, equality and brotherhood atany price. That is: try to bring justice into reality and the world will perish.The French Revolution is thus presented as a historical proof of theundesirability of the highest ethical values when somebody wants to embodythem into institutions. It is better to leave them on their high pedestals; it is

better not to let heaven come down to earth; it is better, like in Dostoyevsky’slegend of the Great Inquisitor, not to delude men with such divine promises,

because they, these “powerless rebels”, will say: “Give us food, for those who

promised re from the heavens did not give it to us”, and they will ask not for freedom, equality and brotherhood, but for “miracle, mystery, and author-ity”. If some want to reconcile the highest values with each other, or toenforce them on a wider scale, that is, to politicize them, they will destroy eachother and will destroy the world too. In Kant’s terms: a human society that isorganised in such institutions as to make also the devil’s breed moral, would

be—precisely because of that—diabolic. The necessary conclusion is that theBest is the enemy of the Good and that the values of the absolute State, of theancien regime should be revived against revolutionary moralism in politics andagainst utopias of a perfect society. One of the solutions to this problem, thathas marked Continental culture, has been Hegel’s solution (which in Italy has

been revived by Spaventa, De Sanctis, Croce, and partly by Gramsci). It can

be summarized as follows: it denies the identification of politics with Moralität, but it considers the State to be the highest form of ethic, of Sittlichkeit, the fullest expression of the ethical powers that bind men into acommunity. The ethical state does not pretend—as it used to do inRousseau—fully to reconcile interest or utility with justice. It is aware of theconicts (some of which will be probably insoluble for a long time) by whichsociety is torn apart, but it is condent that these conicts may not be allowedto become disruptive only by means of an extension of the functions of theState itself and of its entrenchment in rationality and consensus (Gesinnung ) of citizens. The opposition between legality and morality may be overcome, andthe delegitimizing power of morality may be weakened, if the state is able toabsorb into its action and its laws such an amount of rationality and consensusas to be able to overcome some major conflicts and even to transform them

into springs of that development. The State becomes again ethical, in theclassical sense, that is the highest form of the “good life”, but it does notescape the destiny of division that is typical of modernity, and so it keeps bothlaw and morality as its premises. It does not stem any more from the socialcontract (that is, to Hegel’s mind, only an element of private law undulyextended to the public sphere) and it is in this sense absolute. Its authority isnot negotiated with citizens, as its very existence is a preliminary condition tothe autonomy of the individuals and of civil society. It is however limited notonly by other States, or by its being submerged into the “ocean” of





world-history, but also by Absolute Spirit. Beyond the State, there are realmsof Art, Religion and Philosophy, where modern man is able to enjoy a higher and fuller “satisfaction” than within the domain of the State. As a consequence,from the viewpoint of “Absolute Spirit”, the State has only a limited weight.This Spirit will be misunderstood by later Hegelianism, that will often includewithin the State the forms of Art, Religion and Philosophy, or will rather builda system in balance of “distinti”, in which there is reciprocal autonomy between

politics/economics and ethics, but where the State is down-graded to “volitionof the particular”, while ethics is again separated from institutions, becomingthe volition of the universal. Thus with Gentile, the ethical state is so absoluteagain, superiorem non recognoscens, the highest criterion of the individual andcollective conduct; with Croce instead, who cares more for what could becalled, in Gramsci’s words, a distinguished civil society, the State is just one

among several factors that contribute to the equilibrium of the socio-historical framework.

(2) It is perhaps convenient to start to look at one aspect of the very Hegeliandespisal of moralism (the subjective Moralität of good intentions and of virtuethat sets itself against the course of the world) shared by Marx, that is lessevident and that was undoubtedly overlooked by Marx. It is Marx’s valuationof Sittlichkeit, as custom and as patterns of action embodied into institutions.To the “Machiavelli of the proletariat”, morals appeared to be some kind of excuse, a withdrawal from organized collective struggle, a social form of hypocrisy. He vehemently rejected the Soll-Sätze, that is, statementsexpressing some moral duty,11 and he stated that people need not be taughtwhat they ought to do ( sollen), but need rather to be made conscious of what

they actually do and want.12 As a consequence, Communists do not stand for selshness against altruism, not for altruism against selshness:

Sie stellen nicht die moralische Forderung an die Menschen: Liebet Euch unter-einander, sind keine Egoisten pp.; Die Kommunisten predigen überhaupt keine Moral (. . .) sie wissen im Gegenteil sehr gut, dass der Egoismus ebenso wie dieAufopferung eine unter bestimmten Verhältnissen notwendige Form der Durchsetzung der Individuen ist.13

Accordingly, he does not accept the Jacobin proposal too, of transforming the Bourgeois into a Citoyen, or of making collectivistic morals prevail onindividualistic morals. Passive self-denial should not be expected from

individuals. However, the young Marx had felt as a “categorical imperative”the one of “alle Verhältnisse umzuwerfen, in denen der Mensch einerniedrigtes, ein geknechtetes, ein verlassenes, ein verächtliches Wesenist“.14 Has this stand been later abandoned? Is it legitimate to state thatsocialism, even if scientic, can go without, if not a morality, at least an ethic? Isit not legitimate to take Capital also as a Treatise on Commutative Justice, thatstarts from the unfair exchange between the labor-force and wages in order toestablish the conditions of a fair exchange, in which the accumulatedsurplus-value does not disappear but is used rather for social purposes? If





exploitation were not also ethically disgusting, what would rule out preferencegiven to Sade or Malthus rather than to Marx? It is clear enough that it is notonly indignation or suffering from injustice that encourages the overthrow of Capitalism. “Aber welcher überwunden / Klaget über Unrecht nicht?“, that is,“but what is vanquished does not complain of injustice?”, it is said in Herder’sCid 15. If the struggle against an economic order that hinders the developmentof human capabilities was only the cry of the oppressed, Marx would really bea reincarnation of the Jewish Prophets, as such interpreters as Löwith

pretend. But he meant rather to bind strictly the abolition of exploitation withthe this-worldly realm of interests, and the establishment of a commutative(and distributive: in Communist society) justice with the removal of realobstacles and resistances. He did not mean to be a disarmed prophet, beingaware of the fact that ideas, vis-a-vis interests, do not perform very well. In

fact, it is not only a moral indignation or suffering, or desire of justice thaturge towards a classless society, but it is also not totally blind forces acting

behind human beings. The “transition” is based on drives rooted in reality, onenergies that are not created by at, and yet the ethical forces—which will beso important to Gramsci—are not despised by Marx. An ethic lives in the classstruggle, in the ability of resistance and organization, in the spirit of solidarityand even in the cheerfulness of workers that meet after work for discussion, or

just to be together; it lives in the moral and intellectual honesty of the Britishworkshop inspectors whose reports are extensively used by Marx in Capital ; itlives in anybody’s exertion of changing the existing state of affairs according toreason. Marx tries in this way to absorb sentimental and utopian socialism intoa “scientic” view, in which the necessity of the thing itself is assisted, but not

substituted, by ethical energies. In the Antidühring Engels has offered asimplied version of this approach, which had been only sketched, more in animplicit than in an explicit way, by Marx. This version has been for a longtime the standard version, and it has substituted proletarian morals for the

previous refusal of any kind of morals. Engels states that notions of good and of evil change in history and in geography to such an extent as to be able tocontradict each other. As a consequence, morals do not support themselves,

but rather depend on practical class relations, and more in detail on economicrelations within which human beings produce and exchange. No morals is

better than any other from an absolute point of view, but proletarian morals, being more lasting than others (as it is “in the present, the turning upsidedown of the present, that is, the future”) is better than the bourgeois andaristocratic ones. True morals are possible only in a classless society, where

causes of conict have been overcome:

Wir weisen demnach eine jede Zumutung zurück, uns irgendwelche Moraldog-matik, also ewiges, endgültiges, fernerhin unwandelbares Sittengesetz aufzu-drängen, unter dem Vorwand, auch die moralische Welt habe ihre bleibendenPrinzipien, die über der Geschichte und den Völkerverschiedenheiten stehen.Wir behaupten dagegen, alle bisherige Moraltheorie sei das Erzeugnis in letzter Instanz, der jedesmaligen ökonomischen Gesellschaftslage. Und wie dieGesellschaft sich bisher in Klassengegensätzen bewegte, so war die Moral stetseine Klassenmoral; entweder rechfertigte sie die Herrschaft und die Interessen





der herrschenden Klasse, oder aber sie vertrat, sobald die unterdrückte Klassemächtig genug wurde, die Empörung gegen diese Herrschaft und dieZukunftsinteressen der Unterdrückten (...) Aber über die Klassenmoral sindwir noch nicht hinaus. Eine über den Klassengegensätzen und über der Erinnerung an sie stehende, wirklich menschliche Moral wird erst möglich auf einer Gesellschaftsstufe, die den Klassengegensatz nicht nur überwunden,sondern auch für die Praxis des Lebens vergessen hat.16

The last statement is very discerning. But is it meaningful to talk of morals( Moral: here the distinction between Moralität and Sittlichkeit is neglected) in asociety without conicts? Does not Engels himself state that

in einer Gesellschaft, wo die Motive zum Stehlen beseitigt sind, wo also auf die Dauer nur noch höchstens von Geisteskranken gestohlen werden kann, wie

würde da der Moralprediger ausgelacht werden, der feierlich die ewigeWahrheit proklamieren wollte: Du sollst nicht stehlen!17

What meaning will distributive justice still have when the criterion „toeveryone according to his needs” prevails? Perhaps rules will be required for totally new conicts and strains that we cannot imagine yet?

Engels‘ approach suffers from an antinomy that is well known in the historyof ethics: on the one hand norms are acknowledged to be relative to time andspace, changing, unstable; on the other hand such an awareness cannot be

pushed to its last consequences or be widespread in society beyond some limit without leading to nihilistic, skeptical or paralysing outcomes. In order to berespected, rules need sanctions, consecrations, and trust in their nonephemeralvalidity. Such sanctions may be afforded by authority of custom, by tradition

(the mos maiorum that, according to Cicero, must be obeyed, just because of itsexistence, etsi sine ratione reddita), by religion, by trust in charismatic leadersetc., or, more rationally, by endurance or claim to universality. In this lastcase, the most relevant to Marxist ethics, it is possible to distinguish between

partial ethics, that intend to remain partial, and universal ethics. The rst onesare those that deny an equal relationship between all human beings andestablish differentiated rules of conduct in the relationships “Ego-Alter”,ourselves-others, friends-enemies. These ethics stress the division of mankindinto masters and slaves, civilized and barbarians, true believers and indels,chosen race and inferior peoples (Nazism is a clear example). The second onesare the ethic that presuppose the unity of mankind, or even, like in Kant, of all rational beings. A discriminatory treatment of the various human groups isnot admissible; in the language of the Stoics, we are all citizens of the world.The ethics of Marxism, and most of all the ethics of Marxist-Leninism, is inthe uneasy and aporetical position of being a partial, class ethics that claims tobecome universal, to be valid for every man, once classes are abolished and their consequences forgotten. It is so that tragic, contradictory attitudes originate,attitudes similar to the ones experienced by the Jacobins: to be relentless inorder to be able to be merciful, to use violence in order to abolish all violence,harshly to oppose interests and values of one’s class to those of others in order to be able to abolish them later. Class morals becomes a rigid provisionalmorals that is a step towards an ever-lasting and universal morals, a particular





morals that refuses for the time being to become „universalizable“. A wartimemorals, a morals for hard times , that almost spontaneously tends to stress (asin every organized mass, such as armies and churches) hierarchy andcollectivistic values. Sacrifice, which was denied by Marx and Engels in TheGerman Ideology, is necessary again. Development of individuality is put off for the classless society, when we face a luxuriant growth of humancapabilities, that are, in Marx’s sense, an end in themselves. We fully realizehow Communism is not equality in the sense of levelling of the capacities of individuals, but that it is far-reaching differentiation; how class societies haverather levelled human beings while employing their capacities; how need,exploitation, excessive division of labor have rather suppressed and haveforced within rigid schemes the latent differences of human beings.18

As a consequence, the ethics held in the phase of class struggle is a partial

ethics, as the ethics of the Sophists, Callicles and Thrasimachus, such as theyhave been described by Plato. Just as, according to Thrasimachus, right iswhat pleases the strongest, i.e., what helps the interest of a particular group or of particular individuals, so, according to Lenin, right is what helps theinterests of the proletariat, but also, in the meantime, what helps thetransformation leading to the disappearance of classes.

We say: the ethic is what helps the destruction of ancient society based onexploitation and the unity of all the workers with the proletariat ... At thefoundation of the communist ethic there is the struggle for strengthening andaccomplishing Communism.19

The ethic is subordinated to the interest of the proletarian class-struggle. But who will decide — in Stalin’s period particularly — what this interest is? From one

case to another, which categorical imperatives, or rather which watchwordswill be valid? This problem may be claried by Brecht’s Me-Ti. The Book of the Turns. In this book too, the despisal of morals and Soll-Sätze is present:

Es gibt wenige Beschäftigungen, sagte Me-ti, welche die Moral eines Menschenso beschädigen wie die Beschäftigung mit Moral. Ich höre sagen: Man musswahrheitsliebend sein, man muss seine Versprechen halten, man muss für dasGute kämpfen. Aber die Bäume sagen nicht: Man muss grün sein, man muss dieFrüchte senkrecht zu Boden fallen lassen, man muss mit den Blättern rauschen,wenn der Wind durchgeht.20

And that means for Brecht not only, as stated in the Dialogues of Refugees, thathe refuses “to bring order into a pigsty” (that is borgeois society) by means of moral rules, but also that everybody follows his own interests in a naturalisticsense. For the proletariat, however, interest is coincident with collectiveemancipation. But how is the claim possible then of being able to formulate acategorical imperative? On what foundation can the following statement rest?

Me-ti sagte: Ich habe nicht viele ‚du-sollst-Sätze‘ gefunden, die ich auszu-sprechen Lust hatte. Ich meine jetzt Sätze allgemeiner Natur, Sätze, die an dieAllgemeinheit gerichtet werden können. Ein solcher Satz ist aber: ‚Du sollst

produzieren‘.21

Is it true that it is not merely a matter of apology of Stachanovism, provided





that love is included too within the realm of production as it modies “thelover and the loved one”.22 But, if the Soll-Sätze are meaningless and it is notnecessary to ght for the good, why not do like trees, that do not know any“must”, not even the one of producing? There are some perspicaciousstatements against the eternalisation of moral values, against ethical perfec-tionism, to which Brecht contrasts his own pragmatic Marxism. The followingstatement, for example:

Ka-meh wies nach, dass nicht etwa die Gerechtigkeit das Recht geschaffen hat,sondern dass, war es an Rechtsvorschriften, Gerichten, Verboten usw. zuirgendeiner Zeit gab, vage und allgemeine Vorstellungen erzeugt hat, als gäbe esein göttliches Wesen, das so etwas wie Gerechtigkeit erfunden hat oder einRechtsgefühl im Menschen, das ihm angeboren ist. Das Recht hat vielen,widersprechenden Bedürfnissen der Gesellschaft Rechnung zu tragen, so ist es

widerspruchsvoll und wirkt oft unvollkommen. Die Gerechtigkeit jedoch, derenVerkörperung das Recht zu sein vorgibt, während sie nur seine Vergeistigungist, wischt alle Widersprüche aus und kann das, weil sie sich niemals inmenschlichen Vorfällen bestätigen muss. So scheint sie vollkommener als dasRecht.23

Or the following statement:

Die Bedrückten und Missbrauchten sind für Gerechtigkeit, aber für sie sollnicht Druck und Missbrauch aufhören, damit Gerechtigkeit herrsche, sondernes soll Gerechtigkeit herrschen, damit Druck und Missbrauch aufhöre. DieBedrückten und Missbrauchten sind also keine gerechten Leute.24

However, why should the command „Thou shalt produce“ or „Do notexploit” be unconditionally valid? If human beings by nature look after their own advantage, who will guarantee that it is possible to nd a social order thatwill harmonize someday everybody’s advantages?

Only an unshakeable faith in the progress of history towards this new order is able to link partial morals with universal ones, and is able to justify sacricein the face of the most dishonourable and absurd charges. When Bucharin wascharged by Stalin of the worst crimes (ranging from murders to “theinstruction of mixing glass with foodstuffs” for the urban population) he stillhad the nerve to tell Nikolaevskij:

But one is saved by a faith that development is always going forward. It is like astream that is running to the shore. If one leans out of the stream, one is ejectedcompletely . . . The stream goes through the most difcult places. But it stillgoes forward in the direction in which it must. And the people grow, become

stronger in it, and they build a new society.25

Before his death, he will state:

In these days, perhaps, the last of my life, I am condent that sooner or later the lter of history will inevitably sweep the lth from my head . . . Know,comrades, that on that banner which you will be carrying in the victoriousmarch to communism, is also my drop of blood.26

So, it seems that in communist ethics morals and history melt together: history becomes the Court of Appeal for the mistakes of the Party and posthumous





“rehabilitation“ becomes the acknowledgement of the sacrice of the innocentmilitant. An old idea is also strengthened which today takes on more dramaticaspects, that of the guilt of innocence. Class interest may have to ndscapegoats in difcult moments. The militant, and even more the “care”should be ready, for the party, even for such a sacrice.

The party however, besides having the monopoly of moral teaching and itsinnovations, protects and fosters class interests and the struggle for a state of affairs in which morals will be eventually “human”. That is why, after Stalin’sera, in East European countries there has been a widespread diffusion,

particularly through the school of ethics based on love for the party and oncollective values and class solidarity. Thus, in Fedorenko’s code of communistvirtues, the main commands pertain to loyalty to the communist cause, love for socialist countries, love for accurate work, and “intolerance” to injustice,

idleness and all the enemies of Communism.27

(3) Nowadays the tide of collectivist ethic seems to be over that used to dominateEurope (and not only the Soviet Union) between the two wars. The militarymodel, strengthened in the trenches of the Great War, the Kameradschaft,had given to Italian Fascism, German Nazism and other European nationalistmovements an alternative to proletarian class solidarity. The Hero cult had

been accompanied by glorication of gregarious virtues (“To believe, to obey, toght”); the despisal for the “materialistic conception of happiness” thatMussolini would have liked to leave to “the economists of the mid-eighteenthcentury”, and an apology of sacrice for the Fatherland, with a moralsdepersonalization, of anonymous heroism, exemplied by the altar to theUnknown Soldier. Nowadays the ethics of sacrice and endurance have

cracked, and they are observed with less and less zeal and with growingreservations. Is it perhaps because the agencies disseminating ethical values(Fatherland, party, class, Church, tradition) have lost their monopoly andhave to come to terms with rival conceptions? Is it perhaps because pathos for collective values has lessened and private previously unsatised needs havecome to the fore? Is a new distinction between Moralität and Sittlichkeit appearing? In order to avoid undue generalizations and rash diagnoses itwould be safer to state that the previous relationship between ethics and

politics, in terms of allegedly complete subordination of ethics to politics, of theindividual to the party, to Fatherland or to the State, has modied andrelaxed. Antipolitical and antistate demands have condensed into a claim of relative independence from general laws coming from above. But we need notstop at these surface phenomenon at the most obvious and macroscopic

aspects. Obviously enough the relationship between ethical and politicalvalues is modied because the role of the collectives has changed, but thischange is more viscious and complex than it appears, it takes on different tonesat different places and it does not develop everywhere at the same pace. Afresh interest in ethics has not the same meaning every time: it may imply arefusal of the political dimension, a claim of reducing the powers of the State,the defence of “unalienable natural rights”, but also just the need to think again about a few problems, revisions of the boundaries between the severaldomains of existence, transformations of both the politico-institutional





structures, the legal order, the public sphere, on the one hand, and custom, perception of rules, personal relationships, on the other. It seems to many people that, in the countries which have reached a certain level of welfare,mass immoralism or mass hedonism is spreading. Once upon a time immoralismwas the lot of small intellectual elites, like the Bloomsbury Group (even if what it actually implied was substituting one ethical code for another).

We entirely repudiated a personal liability on us to obey general rules. Weclaimed the right to judge every individual case on its own merits, and thewisdom, experience and self-control to do so successfully . . . We repudiatedentirely customary morals, conventions and traditional wisdom. We were, thatis to say, in the strict sense of the term, immoralists.28

It is suggested sometimes that the virtues of exactness, honesty, soberness,

thriftiness, that used to mark not only the „spirit of capitalism“ but also, evenif in a coercive way, the ethic of the lower classes, have lost everywhere their reputation, and that the will to enjoy and not think of the future has infectedeverybody. It is necessary again to avoid such oversimplications and to try tounderstand what has happened in a number of countries in the last decadeswith growing and more widespread afuence, and what could possibly happenif the situation were to change. Denitely, the ethical codes of conduct thatwere previously separated by class boundaries or by geographical or culturaldistances have met, blended, collided, without nding higher authorities thatcould effectively blend or justify them. Tradition, having weakened, cannotfully legitimise them; conicts between different standards of conduct cannot

be argued for and explained; sudden changes do not help the entrenchment of

rules. Phenomena of ethical bewilderment appear which may partly account for the repudiation of ethics, for adjustment to the existing order, for the rise of several private individual morals, for the erosion of real or supposedobligations, as well as for the political relevance of the control of themass-media that substitute to some extent the need previously felt for

permanent rules, by providing a day-to-day orientation.Such a state of affairs cannot be cancelled out. Imaginary restorations of

exact and rigid ethical codes cannot be dreamt of, and a triumphal return of amoral consciousness free from external conditioning and able to enact auniversal legislation of action cannot be expected. But is it enough to follow,as Descartes suggested, those customary rules that have been sucked with thewet-nurse’s milk? Shall we give up the idea of consciously directing our lives?Are we really situated in such a meaningless, “polytheistic” world, as to make

any reasonable and justiable ethical conduct impossible? The fact is oftenforgotten that morals refer not to disembodied values or to the vacuum of “conscience”, but rather to deliberations and choices, to meaningful criteria.Against Weber, or rather against some interpretations of Weber, the“polytheism of values” should be acknowledged not to be absolute. “Values”are not at the agent’s disposal as in a collection of samples from which one canfreely choose the one or the other, but they appear every time within a

particular socio-historical framework, with limits and constraints. The moralagent never starts from scratch, or from an innite range of possibilities, but





he starts rather from determined choices, from specic alternatives, frommeaningful conicts. Is Entzauberung or disenchantment of the world, or thedecay of religions, enough to deny any meaning to moral conduct? Or shall wewait for the rise of a peaceful society in order to have at last rules of conduct(and meanwhile shall we ourselves conform to the conduct of majorities)?However, moral demands seem to reappear today in different ways and thissymptom needs to be taken seriously. The Party with a thousand eyes, theChurch and Tradition can no longer provide a safe direction for individualaction, and cannot take away any more from the individual the burden of choices; but collections of precepts, casuistry, emotional or occasional choicesare not adequate. Do we have to talk again of morals?29 And shall we do that

precisely at a time when, with the renewed interest in Nietzsche andHeidegger, the very discussion of ethics seems to be more and more

weakened? At a time when we face a grand return of Realpolitik, and toso-called “human rights” are abused every day?

However, at least in democratic countries with a complex society, the moral problem seems to be unavoidable. And this happens not only because of contingent reasons, in order to ght the corruption of public institutions,occult powers or the degeneration of politics, but because of a moresubstantive reason, that has been already singled out by Schumpeter: are the

political market of votes, a system of free elections and of formal guaranteesenough to legitimise democracy? Would the society which on the basis of majority rule —he was writing in 1942—where Jews were persecuted or witches

burnt still be a democracy? In cases in which a regime does not stand by mereforce, is respect of purely procedural rules enough in order to qualify it as

democratic, or should respect of a core of substantive rules be presupposed,without which every modern democracy degenerates? The debate of the lastdecades on the theory of justice and the revival, at different levels, of Natural

Law approaches provide an answer also to this question, or to the problem of anot merely procedural foundation of democracy (or rather of several possibleversions of democracy understood in a non authoritarian sense). The conceptof justice (to talk of “social justice” is redundant, as justice never involves theindividual as such, but rather relationships between individuals and com-munities) is a good starting point for clarifying the relationship between ethicsand politics. It is a hinge between the two domains that have been separated

by post-classical thought and it is the center of the topic named public morality.Those who have grown up in the Italian tradition have been abundantlywarned against the “alcinesche seduzioni della Dea Giustizia” (Croce) and have

been vaccinated against it by heavy doses of historicist and neo-Machiavellian“realism”. The elite theorists have explained that every political regime,whatever its label, is always ruled by small oligarchies that try to impose their own interests disguised as autonomous and universal moral values. Injustice,according to Pareto, is nothing more than a disturbance of the socialequilibrium, whose meaning is perceived every time people try to modify theestablished criteria usually imposed and accepted: “The one who states ‘that isunjust’ means that such a thing offends his sentiments, such as they exist in thestate of social equilibrium in which he lives”.31 The ideal of justice, as a





consequence, is merely a „residue“. Natural Law in Italy was almost wipedout at the beginning of the 19th century, at the time of Vincenzo Cuoco,having been accused with the same charge of abstractness that was madeagainst the principles of 1789. The traditions of secular thinking have oftenleaned on Hegelianism or on Marxism in order to absorb the problem of individual rights into problems of State and Class. There have been, obviouslyenough, some exceptions (like Carlo Rosselli) but as a rule, and for historicalreasons that are easy to understand, our theoreticians of Liberalism and of Liberal Socialism have been favoring more a strong State than a minimalState. In other countries however, the Natural Law tradition, even if nothegemonical, never completely died out. This is true, rstly, of theAnglo-Saxon countries, where parliamentary regimes, the cradle of modern

political democracy, have never been formally interrupted in the last two

centuries, and where the Constitution of the United States can be said to havea Natural Law-approach, even if ideological overtones are taken into account,an approach that explicitly appeals to the unalienable rights of individuals, theright of pursuing happiness included. But also in Germany, due to theinuence of Kant and of Neokantianism, Natural Law theories managed tosurvive, not only as a subject-matter of study (like for Gierke) but also asconstructive proposals (like for Leo Strauss). In the following section I shallreview two different kinds of the revival of Natural Law, that originated bothin the last decades, coming from opposed cultural and political areas, even if (by mere chance?) they were worked out in the same place, namelyCambridge, Massachussets. Such a review may be a useful rst step to start asubstantive discussion of the matters at stake, and so come back to our present

day concerns. II. Two Theories of Justice

(1) I shall discuss Ernst Bloch‘s and John Rawls‘ contributions, namely Naturrecht und menschliche Würde and A Theory of Justice. The rst book wasconceived by Bloch in Cambridge between 1942 and 1949 during the period of his American migration,32 with the effects of Stalinism in mind. The period inwhich the book was worked on was rather long, also because of its overlappingwith the writing of Subject-Objekt and of Das Prinzip Hoffnung. When the

book appeared in Frankfurt, in 1961 (the year in which Bloch left the DDR after a period of conicts with political and academic authorities), the author’s

purpose was claried in the direction of presenting a democratic alternative,

on a partly Natural Law-inspired basis, to the Soviet style real socialism. Therepressions of the Berlin revolt of June 1953, the slow pace of destalinization,the authoritarian and bureaucratic characters of Ulbricht’s socialism, urgedBloch to explore more in depth what were labelled anonymous “errors” or rather one man’s faults. Thus—also through the mediation of RosaLuxemburg’s theories—he comes back to Marx and argues that Marx did nottake Natural Law seriously enough, and that he had unsatisfactorily workedout the notion of the dictatorship of the proletariat. 33 Human dignity and democracy are inseparable concepts. Utopian thinking has privileged the topic of





human happiness, while Natural Law has stood for “walking upright”, for human dignity, against every kind of abasement, including the one derivingfrom “the State’s omnipotence”. It is necessary to graft on to the trunk of Marxism this Natural Law branch, also because there could not be anysocialism without its ethical correlation, that is justice. He reconstructs theevolution of Natural Law thinking from the Stoics up to its modern forms,

but the central point is acknowledged to be Kant, summarized in thestatement that “if justice disappears, it is no longer worthwhile for human

beings to live on earth”.34 But justice is founded on the acknowledgement of dignity of the individual, or in Kant’s terms:

Im Reiche der Zwecke hat alles entweder einen Preis, oder eine Würde. Waseinen Preis hat, an dessen Stelle kann auch etwas anderes als Aquivalent gesetztwerden, was dagegen über allen Preis erhaben ist, mithin kein Aquivalentverstattet, das hat eine Würde.35

And furthermore:

Achtung, die ich für andere trage, oder die ein Anderer von mir fordern kann(observantia aliis praestanda), ist also die Anerkennung einer Würde (dignitas)an anderen Menschen, d.i. eines Werths, der keinen Preis hat, kein Aquivalent,wogegen das Objekt der Werthschätzung (aestimii) ausgetauscht werdenkönnte.36

Such an acknowledgement of the dignitas hominis needs to be preliminary andcannot be negotiated. It is not only a glorication, in a humanistic sense, of this value (such as can be found in the Oratio de hominis dignitate by Pico dellaMirandola)37 but it is rather a vindication of human dignity against those whoreduce man to a tool of something that is considered to be incomparablyhigher, be it the State or the Class. Such a reduction had already been done byHobbes in Leviathan:

The Value, or worth of a man, is as of all other things, his Price; that is to say, somuch as would be given for the use of his Power: and therefore is not absolute;

but a thing dependant on the need and judgement of another. An able conductor of Soldiers, is of great Price in time of War present, or imminent; but in Peacenot so. A learned and incorrupt Judge, is much Worth in time of Peace; but notso much in War.38

Dignity for Hobbes is nothing more than the value bestowed on man by theState by means of peculiar signs of distinction:

The publique worth of a man, which is the Value set on him by theCommon-wealth, is that which men commonly call Dignity. And this Value of him by the Common-wealth, is understood, by ofces of Command, Judicature,

publique Employment; or by Names and Titles, introduced for distinction of such value”.

But it is against Carl Schmitt, who revives Hobbes‘ approach, that Blochghts in a particular way. His “decisionism” is a kind of “anti-Natural Law”.40

It destroys both the rights of the individual and the universal nature of law infavor of several particular laws that bear the character of privileged and





arbitrary acts. He comes back to the thesis of Thrasimachus: right is what pleases the strongest, what is decided by those who hold power. We are in themidst of injustice: in Aristotle‘s terms it is injustice by defect, discrimination,whim, as contrasted with injustice by excess of justice, with levelling. Justice isneither to treat everybody as being unequal, nor to treat everybody abstractlyas being equal; it is neither the arbitrary attribution of advantages and

burdens, nor the levelling of everybody. It is also “polyphony of a unison”,relation, proportion that has to be found. It is not, however, proportion in a

patriarchal, sense, partium aequa libratio, following the model of the head of afamily or the sovereign who, from above, without the right of appeal, without discussion or consultation, pours into everyone’s dish “his own portion of

punishment or his quota of social goods”,41 but it is rather a proportion thatshould be found together, „justice from below“, the end of exploitation and the

building of a classless society. The utopian tension in Bloch’s thinking impliesno wiping away of history, even if the coming of justice in Communist societycarries along in his work the Messianic overtones of a nally satisedexpectation. But the principles of Natural Law, that is dignity and justice, canreceive a historical foundation, even if in a history that seems to lose thecharacteristics of opaqueness and violence in the regnum hominis of “concreteutopia” of a classless society? Are Natural Law and History, Natural Law andUtopia, able to coexist?

(2) The book of Rawls42 originated as an answer to rather different questions:it was an answer to problems of a relatively afuent society like the Americanone and its polemical targets were the utilitarian tradition, or forms of

possessive individualism still widespread. I will not develop a historical

comparison nor will I try to bring together such distant viewpoints. Somekind of comparison will however make sense, not only because it will enableus to see how—in so different political and geographical contexts—it is still

possible to have recourse to a Natural Law-approach in order to solve presentday problems, but also because it will enable us to highlight a crucial problem,that is, the problem of the exclusion from exchange of some good, be it dignityor freedom. The main question for Rawls is: are there criteria to judgewhether a society is just, and if there are any, what are these criteria? Howcould one try to gure out a society in which also the less advantaged couldhave the maximum amount of benets? There are several explicit or implicit

polemical targets. Singling them out could help in reconstructing Rawls’constructive argument. Firstly, refusal is implicit of the Weberian polytheismof values and of every kind of ethical relativism. Human beings, according to

Rawls, are able to agree on what is just, and to legislate in a rational way onvalues. The “original position” is not merely the traditional transition fromthe state of nature to civil society, but it is rather the ideal ground on which weshould place ourselves—as egoistic but rational individuals, neither enviousnor privileged—in order to establish the criteria for a just society. Justice may

be understood as the locus where egoism and contractual rationality coincide. It isa middle point between the classical “constant will of giving to everybodywhat is his own” and the modern general will that distributes primary goods

produced cooperation. In disagreement with Olson and Arrow, Rawls seems





to have the intention of denitely reintroducing the idea of a common good, andeven the idea of a hierarchy of goods as contrasted with any polytheism of values or with any decisionism that puts the various values on the same footing. Olson hasdenied that a general interest, and its ethical counterpart, that is, a commongood that is valid for all, can exist. He has argued, quoting Aristotle, thatsmall groups are qualitatively different from big groups, and that only theformer ones are able to pursue common goals and to produce forms of realsolidarity. As far as the latter are concerned, there is a tendency to desire the

benets deriving from afliation to a group or to a community, but to avoidthe corresponding burdens. In order to reach some common good, differentand selective incentives for every individual would be required, and that isclearly impossible. Furthermore the active individuals, the ones able to takedecisions of general relevance have always been few.43 According to Arrow, it

is impossible to shift from individual rationality (the only one that is admittedat the level of “methodological individualism”) to collective rationality, thatappears to be left to chance or to violence. As a consequence, power only isable to regulate life and social choices:

If we exclude the possibility of interpersonal comparisons of utility, then theonly methods of passing from individual tastes to social preferences which will

be satisfactory and which will be dened for a wide range of sets of individualorderings are either imposed or dictatorial.44

A further corollary of this theorem has been formulated by Hirschmann:this corollary states that collective action is substantively regulated byemotional factors, that is, loyalty or refusal of loyalty or disaffection to groups,

rather than by rational criteria.45

A gregarious logic would then hold both for customers of a supermarket and for members of big political groups.46

It needs to be stressed that Rawls refuses both solutions based on power andsolutions based on the herd instinct or on emotional factors, in order to arguefor the possibility of thinking in rational terms a just social situation and alogic of collective action. Rawls states, against the utilitarians and against

Nozick,47 that a rational hierarchy, or a rational lexicographical order, can beestablished between several principles. Such an order would safeguard therights of the social group without sacrice of the rights of individuals or viceversa (it is worth remarking that it is not a reconciliation on the same footing,

but rather a hierarchical ordering of choices). Utilitarianism, aiming at thegreatest happiness of the greatest number, takes into account the logic of cooperation, but it does not take the distinction between persons seriously,treating them as units rather than as individuals. It may sacrice, as aconsequence, the freedom and life of the individual for the sake of the welfareof the greatest number. As an example: the sheriff of a small town, in order toavoid bigger disorders that would probably cause a number of casualties, putsan innocent to death. In such a way he saves many lives by sacricing one.48 Issuch a criterion just or should rather the Kantian at justitia el pereat mundushold? The happiness of the greatest number is more important than the lifeand dignity of the individual. Nozick, in his strong defence of a possessiveindividualism with a Lockean inspiration that he tries to link with the in-





dividualistic anarchist tradition, with Stiner’s Einzige, take an oppositestance. Individual existence and its immediate conditions are absolutely notnegotiable, not alienable goods. There is no highest good in relation to whichthe individual might be considered as a means; there is no sacrice that isworth doing to somebody’s else’s benet:

Why not (. . .) hold that some persons have to bear some costs that benet other persons more, for the sake of the overall social good? But there is no social entitywith a good that undergoes such sacrice for its own good. There are onlyindividual people, different individual people, with their own individual lives.Using one these people for the benet of others, uses him and benets theothers. Nothing more.49

But if individuals are for Nozick incommensurable, every theory of justicevanishes, because justice means proportion, commensurability, social re-lation. It is clear thus why Nozick defends—this time against the whole

Natural Law-tradition—accidents and privileges given by nature, by societyand by history. What has been produced by chance, by the natural lottery (inRawls’ words) must be honored; differences in talent, revenue, educationincluded, because, according to Nozick, our very life is based on chance:

Each existing person is the product of a process wherein the one sperm cellwhich succeeds is no more deserving than the millions that fail. Should we wishthat process had been ‘fairer’ as judged by Rawls’ standards, that all ‘inequities’in it had been rectied? We should be apprehensive about any principle thatwould condemn morally the very sort of process that brought us to be, a

principle that therefore would undercut the legitimacy of our very existing.50

When contrasted with such an apology of the whim of the status quo, Rawls’argument appears more convincing and powerful. He places himself on aground that enables him on principle to give a new formulation to a wholefamily of problems related to justice and to distribute in a different and gradedway what is negotiable and what is not. In contrast with Hobbes, for whomhuman beings possess no intrinsic dignity, but only a price, he stresses the

primary value of human dignity. But he does not transform it into some kindof egoistically incommensurable property, like Nozick, nor does he abuse itthrough subordination to the primacy of happiness of the greatest number,like the Utilitarians. His own solution is to safeguard the dignity of manwithin the framework of the communal bond of justice. Such an equilibriumis of course difcult, but it avoids at least the complementary hypotheses of the State-Leviathan and of absolute individualism. Freedom of the individual

is for Rawls superior in any case (in rank, “lexicographically”) to the“difference principle”: which amounts to saying, in classical terms, that

preservation of freedom is more important than the removal of inequalities. Or rather: without safeguard, and without extension, of the enjoyment of those“primary goods” that must be distributed with justice (the several forms of freedom, dignity and preconditions of self-respect) it is not even possible toreduce inequalities. The rst expression of justice is thus the way in which theseveral forms of freedom, that is, of those goods on which all the others are

based are allocated. Égalité is not any more the goal of social justice, nor are





preservation of existing inequalities and the stabilization of chance. Rawlsdoes not only mistrust the stagnating character of equalitarian societies (providedthat an effective reduction of inequality is possible), but he also thinks thatthey must produce perverse effects, that they violate justice, as far as theytend to abuse freedom, that is, to subvert the lexicographical order. Thereformulated “difference principle” states in its rst part: „Social andeconomic inequalities are to be arranged so that they are both: (a) to thegreatest benet of the least advantaged, consistent with the just saving

principle...”51 It is thus related more with fraternité than with égalité. Ittends, in fact, not to abolish inequalities, but rather to use them in order to

benet the naturally and socially less advantaged. A society is just if (alongwith other requirements) it favours, in a conscious and articial way, those thatthe natural lottery has put in a worse position. Justice and brotherhood thus

require a principle of social compensation for wrongs and disadvantages, which isa principle implying radical reparations, brave innovations, and not in anyway quietistic. He presupposes that nothing intrinsically justies privileges,neither chance, nor merit, skills, intellectual or entrepreneurial capabilities.Skills too are a kind of social wealth that should be redistributed, used notonly in the common interest, but precisely in the interest of the lessadvantaged. As an example, in the eld of education, justice would imply that

precisely the less talented should be most supported in order to reduce, as far as possible, social and natural inequalities.

(3) One could certainly suggest that the difference principle is a moderatealternative to the class struggle, that is, the refusal of a revolutionaryoverthrowing of the social situation, or also, that on such a basis “the poor

man benets from the crumbs that fall from the table of the rich”.52

Onecould also suggest that Rawls’ “moral geometry” underlines the scope of perverse effects in social institutions: he does not realize that any increase indistributive justice is paid for by a decrease of freedom. It must beacknowledged however, that his contribution is one of the most sophisticatedattempts at stating the terms of the problem of justice in a democratic society, atmediating between the liberal tradition of the defense of freedom and theradical-democratic tradition of ghting inequalities and of supporting lessadvantaged groups. Of course inequalities are assumed to be necessary and

protable as incentives, or perhaps as a way of allocating resources into thehands of those that can make the best social use of them. 54 But the struggleagainst their sway should nonetheless be resolute. There is probably in Rawls,

beside the Kantian and Natural Law approach, some religious pathos: the

concept of a “well-ordered society” is taken to be an extension of the idea of religious toleration, and an interpretation of the “kingdom of ends”,55 and thevery idea of brotherhood echoes the Christian idea of caritas.

But the main theoretical shortcomings lie elsewhere, and they can besummarized by the two following questions: 1) How is it possible, withoutlapsing into abstractness, to ignore real history, the actual power-relations,and more generally to take history and nature as mere accidents that reasoncan and must ignore? 2) On what basis is it possible to exclude somethingfrom exchange or from rational justication, making it a taboo? In other





words, how is the lexicographical order or the primacy of human dignity justiable for Rawls, or, in the opposite camp, how is the primacy of theauthority of the State justiable?

In fact, for every Natural Law philosopher, history and nature are withinthe realms of chance, and reason is not able to formulate judgments if it lackssome invariant standard that cannot be derived from changing historical andnatural events. But from what else can such an invariant standard bederived—even if through complex formulations rather than by reection of some particular situation—if it is not an innate idea, if not from conceptionsthat emerged in history in connexion with constellations of particular and

partially but continuously shifting problems? The Natural Law or the“constructivist” claim is a sensible and a very important one: it is the demandto rule out in the name of History and Nature56 (1) lapses into ethical

relativism; (2) justication of privileges and of the status quo; (3) the possibility of anybody’s self-appointment as the interpreter of the will of History (like Stalin) or of Nature (like Hitler, via the myth of race). Ethicalrelativism was the danger that seventeenth century Natural Law philosophytried to avert. When Pascal stated that jurisprudence changes as latitudechanges, or that justice is different on the opposite sides of a river he wasassessing something that had been abundantly proven by travellers’ reports.57

The Natural Law philosophers’ reply was the attempt at nding a rationalfoundation for the rights of man in his deepest nature, at any latitude and at anytime. But does a metahistorical unchanging human nature really exist? Or doesall that amount to a prescriptive discourse, to expression of an unshakable willnot to let “human rights” be abused? The most convincing solution that

Natural Law philosophy has given to this dilemma is the latter. That is, it isrational to want human beings to be, articially, treated as the owners of fundamental and inalienable rights, and to want the social situation to be

judged according to its capacity of guaranteeing and developing such rights. A just society Is accordingly the one based on respect of individual rights, andthis respect converges with the development of the whole. The social contractmeans establishing the ways of a rational agreement between the wills of thevarious contracting parties. Thus the criteria of justice are not rigid,relentless, objectively binding natural laws, but they are rather the outcome of a possible rational agreement or of a reasoned consensus. They lie outsidehistory and natural fortuitousness only as far as one should leave out of consideration the constraints put on existing reality when judging whether something is just or not (just as the physicist leaves real friction out of

consideration when establishing the laws of motion). Has the problem beensolved in this way? It seems to me that it has only shifted. How could arational agreement on justice leave the countless diversity of situations out of consideration, and establish universal principles? Wouldn’t a piecemeal socialengineering like the one proposed by Popper be more realistic then? Is it notmore realistic, in the Aristotelian sense, to bring justice back into the domainof phronesis, into the domain of practical wisdom or prudentia, that applieselastic criteria to individual changing situations and that rules out the strongcriteria of episteme in human affairs, provided that episteme is admissable for





what is unchangeable, like mathematical entities? And if universal principleswere possible, would not they be so poor in content, so removed fromsubstantive law and real situations as to have, at most, an exhortative value?

Rawls himself acknowledges that the lexicographical order is historically change-able, and that in certain periods (for example during the IndustrialRevolution) priority of freedom may not hold,58 and that his theory is valuedfor democratic societies “with limited scarcity”. The question then arises: howis it possible to consider history merely as a lottery, as a realm of chance fromwhich reason is excluded? One does not need to accept a philosophy of historyto acknowledge that events have a certain meaning; that this meaning must beunderstood and justice measured and exercized by it; and to acknowledge alsothat it was the philosophies of the 17th and 18th centuries that discovered,contrary to Natural Law linearity, the presence of unintended results and

perverse effects. To sum up: an important and intriguing point is still waitingto be claried, and that is the relationship between justice and “realtàeffettuale“, or between ideas and history. Both a historicist reductionism of “values” to a mere reection of contingent individual situations, and theKantian and neo-Kantian separation of ideas from facts have proved to be notvery fruitful solutions.

The second issue is strictly related the rst. To exclude some reality fromhistory or from change implies bestowing on that reality the status of not exchangeability, as far as it is supposed not to need any further justication, or to

be self-justifying. To establish human dignity, freedom, or, on the oppositefront, the authority of the State or the absolute and arbitrary rights of chancein the position of highest value, is perhaps a necessary, but in no sense an

innocent, move. I shall formulate a general hypothesis: I suggest that taboosare most frequent in societies at their most sensitive points, and are such thatit would not be difcult to justify in terms of immediate evidence. The taboois then an area of social danger, from which one defends himself more by

prohibition than by argument, as far as the reason for prohibition becomes atautology. For example: “incest is forbidden because it has always been so;

because there would be some reason; because I don’t know; because it is so...” The taboo thus sets up protective belts around the most sensitive areasof the social order. In a similar vein, I suggest that in theories as well (butthere are here also structural reasons, as far as, in order to be able to talk aboutanything, one needs presuppositions) there is such a phenomenon as thecreation of taboos: the weakest points are withdrawn from criticism, and are put ina higher position in order to make a closer examination impossible. In the Natural

Law, Kantian, and in the case, Rawlsian traditions, human freedom anddignity are subjected to this treatment. On what else will human dignity rest if not on the tacit presupposition of the will to defend a moral claim that is felt to

be such even if it is not justied? But why should anybody, from a rational point of view, accept such a standpoint? Wouldn’t the Marquis de Sade, Nietzsche or Pareto be able to put forth excellent arguments against this purely moral foundation of dignity and freedom? Even Hegel, reviving theAristotelian doctrine that the whole is by nature prior to its parts, could notreasonably oppose the authority of the State (that too made a taboo and not





negotiable) to the dignity and freedom of the individual? Or, last of all,wouldn’t Nozick, making the incommensurability of individual existence ataboo, have enough reasons to reject any idea of distributive justice? Theintricate question that needs clarication is whether it be possible, from atheoretical point of view, to formulate theories without presuppositions andareas of “unthought”, and from a practical and political point of view,whether it be possible not to lean on something given by authority. The rsthalf of the question cannot be answered in the present article. It is clear,however, that a good theory gives a foundation, à rebours, retrospectively, toits starting points, and nally welds them into the whole. The answer to thesecond half of the question is more important for our purpose. Thenon-negotiable character, in some situations, of the primary goods (freedom,dignity, self-respect, etc.) could be taken to be an objective precondition of a

social exchange that is productive and fruitful also for individuals. In other words: not to deny any freedom or dignity of others as well as of ourselves, notto make self-respect impossible for ourselves as well as for others, could beassumed to be the rst rule enabling a fair game to start. But wouldn’t that bea utilitarian solution? Wouldn’t freedom and dignity again be founded onsome social requirements? Wouldn’t they be derived? How is it possible to

justify the primary character of freedom having recourse only to rationalargument and ruling out history and phronesis? Does not the typical conict of Enlightenment arise again between a pure treason, transformed in court, and ablind authority, based on history and on privilege? A conict or a combinationof reason and authority seem to be then the way for escape or for compromise.But such a separation cannot be fully convincing, as it cuts off almost two

centuries of thought and experience. Reason is possibly less pure, and historyand reality less absurd, than is usually maintained. A return to Kant and to Natural Law may be a symptom of real and important theoretical and politicalneeds, but such a return should be aware of the contributions of contemporaryContinental philosophy, and not be based only on Welfare Economics and theutilitarian Anglo-Saxon tradition. Nevertheless, it is precisely from thediscussion of the topic of rational consensus by the individuals to a “just” socialorder that an answer could be looked for a twofold legitimisation crisis. Therst aspect of this crisis, the less recent for our culture, is the erosion of thesignicance of ethical values and of individual rights; the other aspect, morerecent for us, is the erosion of belief in any super partes character of the State.One could say that nothing is left nowadays that is inalienable, transformableinto a taboo, withdrawn from negotiation, and that the protective belts around

natural dignity of the individual or around natural authority of the State have been shaken. States and individuals join a complex and relentless game of agreements and negotiations, a mixed game, at the same time cooperative andconictual, in which the positions of the parties constantly shift. Shall weestablish only the rules of the game or also the rules for reaching an agreementon the modication of the rules? And what kind of rules could these be? Theopen questions are many, and the eld to be explored is still wide. Adiscussion of the relationship between ethics and politics within this newcontext might make relevant contributions.





NOTES1. See Bernard Williams, Morality. An Introduction to Ethics(Cambridge; Cambridge University Press,1978), p. 9. I shall not try a reduction of the several meanings given to the terms “ethics” and“morality” in the several traditions of thought. The reader will be able to understand which meaningis meant from the context. It is worth stressing however that I shall not use “ethics” to refer to thediscourse on morality, and that I describe by this term, rather than “conscience”, the domain of public morality and custom.

2. Stephan H. Pfürtner, Zur wissenschaftstheoretischen Begründung der Moral,in Niklas Luhmann andStephan H. Pfürtner, Theorietechnik und Moral (Frankfurt: Suhrkamp, 1978), p. 177.

3. Robert Musil, Der Mann ohne Eigenschaften, (Berlin: Rowohlt Verlag, I960), pp. 593-594.4. See Carlo A. Viano, Etica (Milano: ISEDI, 1975) pp. 19 ff.5. On the history of this idea see Johannes Stelzenberger,Syneidesis, Conscientia, Gewissen, Eine Studie

zum Bedeutungswandel eines moraltheologischen Begriffs (Padeborn: Schöningh, 1963).6. Niccolò Machiavelli, Il Principe, ch.18, par.vi, in Opere, ed. M. Bonfantini (Milano and Napoli:

Ricciardi, 1954), p. 58.

7. See Artistoteles, Rhet., I,5,1361a22: “it is ‘our own’ if it is in our power to dispose of it or keep it. By‘disposing of it’ I mean giving it away or selling it”, inThe Works of Aristotle,ed. W.D. Ross (Oxford:Clarendon, 1966), vol.11; see also Digesto, 18,1;67: “Alientio tum t cum dominium ad aliumtransferimus”.

8. Jean-Jacques Rousseau, Émile ou de l‘éducation, in Oeuvres complètes (Paris: Bibliothéque de laPléiade, 1964), vol.4, p. 254.

9. Jean-Jacques Rousseau, Du contrat social,in Du contrat social et autres oeuvres politiques(Paris: Garnier,1975), p. 235.

10. See also Remo Bodei, “Ragione e Terrore: sulla tirannide giacobina della “Virtu’”, Il Centauro,1(1981), n.3, pp. 38-58.

11. See Karl Marx and Friedrich Engels, Die deutsche Ideologie,in MEW (Berlin: Dietz, 1953-), Band 3, pp. 238;239 n. (crossed out in the manuscript).

12. See Karl Marx, Brief e aus den “Deutsch-Französischen Jahrbüchern“, in MEW, Band 1, pp. 345-346.13. Karl Marx and Friedrich Engels, Die deutsche Ideologie, op.cit,, p. 229. For further discussion see

Eugene Kamenka, The Ethical Foundations of Marxism (London: Routledge and Kegan, 1962).

14. Karl Marx, Zur Kritik der Hegelschen Rechtsphilosophie. Einleitung, in MEW, Band 1, p. 385.15. Johann Gottfried Herder, Der Cid, in Sämtliche Werke, ed. B. Suphan (Hildesheim: Olms, reprint

edition, 1968), Band 28. p. 505.16. Friedrich Engels, Antidührung, in MEW, Band 20, pp. 87-88.17. Ibid., p. 87.18. See Karl Marx, Das Kapital, in MEW, Band 25, p. 828.19. Vladimir Ilich Lenin, Zadachi solûzov molodezhî (The tasks of the youth unions, 1920), in Polnoe

Sobranye Sochinenii(Moskvà: Gosudarstvennoe izdatelstvo politicheskoi literaturi, 19635), vol.41, p.311, p. 313.

20. Bertold Brecht, Me-ti. Buch der Wendungen,inGesammelte Werke(Frankfurt a.M.: Suhrkamp, 1967),Band 12, p. 564.

21. Ibid., pp. 498-499.22. Ibid., p. 571.23. Ibid., p. 482.24. Ibid., p. 476.

25. See Boris I. Nikolaewsky, Power and Soviet Elite: The “Letter of an Old Bolshevik” and Other Essays(New York: Praeger, 1965), p. 25.

26. Nikolai I. Bucharin, quoted in RoyA. Medvedev, Let History Judge. The Origins and Consequences of Stalinism (New York: Knopf, 1971), p. 184.

27. E. G. Fëdorenko,Osnovy marksisto-leninskoĭ etikī (Fundamentals of Marxist-Leninist Ethics),(Kiev,1972), p. 82; Ī. Ī. Chernokozov and V. N. Chernokozova, Osnovy kommunistickeskoĭ moralī (Fundamentals of communist Morals),(Moskva, 1971). See also K.A. Ziegert, Nach der Emanzipationdes Rechts von der Moral, in Theorietechnik und Moral, op.cit., pp. 151 ff.

28. John Maynard Keynes, My Early Beliefs, inThe Collected Writings (London: Macmilland, 19724),vol.10, p. 446.

29. See Eric Weil, Faudra-t-il de nouveau parler de morale?, in Savoir, faire, ésperer. Les limites de la raison



Vol 6 2 A Philsophical Journal July 1986


(Bruxelles: Publications des Facultés Universitaires Saint-Louis, 1976), vol. 1 pp. 265-284; see also

Eric Weil, Philosophie morale (Paris: Vrin, 1969), passim.30. See Joseph Schumpter, Capitalism, Socialism and Democracy (London: Allen and Unwin, 1954,

originally published in 1942), pp. 240-243.31. Vilfredo Pareto, Trattato di sociologia generale (Milano: Comunità, 1964, reprint of the second ed. of

1923), vol. l, par. 1210, p. 732.32. See Silvia Markun, Ernst Bloch in Selbstzeugnissen und Bilddokumenten (Reinbeck bei Hamburg:

Rowohlt, 1977), p. 60, p. 131.33. See Ernst Bloch, in E. Bloch and F. Vilmar, Ein Gespräch über ungelöste Aufgaben der sozialistischen

Theorie, in Über Ernst Bloch (Frankfurt a.M.: Suhrkamp, 1968), pp. 88 ff.34. Immanuel Kant, quoted by Bloch in Sämtliche Werke, ed. G. Hartenstein, (Leipzig 1838-39), Band 7,

p. 150; see Ernst Bloch, Naturrecht und menschliche Würde,(Frankfurt a.M.: Suhrkamp, 1961), p. 99;for further discussion see Remo Bodei, Multiversum. Tempo e storia in Ernst Bloch(Napoli: Bibliopolis,1982).

35. Immanuel Kant, Grundlegung der Metaphysik der Sitten in GS (Gesammelte Schriften, Berlin andLeipzig: Akademie-Ausgabe, 1900- ), Band 4, p. 434.

36. Immanuel Kant, Metaphysik der Sitten, II, l, 2, par. 37, in GS, Band 6, p. 462.37. See Pico della Mirandola, Oratio de Hominis Dignitate, in Filoso italiani del Quattrocento,ed. E. Garin(Firenze: Le Monnier, 1942), pp. 475 ff.

38. Thomas Hobbes, Leviathan,I, 10, ed. C. B. Macpherson (Harmondsworth: Penguin Books, 1981), pp,151-52.

39. Ibidem, p. 152.40. Ernst Bloch, Naturrecht und menschliche Würde, op.cit., p. 173.41. Ibidem, p. 228.42. See John Rawls, A Theory of Justice, (Cambridge, Mass.: Harvard University Press, 1971); a rst

statement of theory was offered in “Justice as Fairness”, The Philosophical Review, 67 (1958);revisions of the theory were presented in “A Kantian Conception of Equal ity”, The Cambridge Review, (1975), pp. 94,99; “Kantian Constructivism in Moral Theory”, The Journal of Philosophy, 77 (1980), pp. 515-572.

43. See Mancur Olson, The Logic of collective Action. Public Goods and the theory of Groups (Cambridge,Mass.: Harvard University Press), 1965.

44. Kenneth J. Arrow, “A Difculty in the Concept of Social Welfare”, Journal of Political Economy,66(1950), pp. 328-46, p. 342; see also Kenneth J. Arrow, The Limits of Organisation (New York: Norton, 1974), p. 25.

45. See Albert O. Hirschmann, Exit, Voice and Loyalty (Cambridge, Mass.: Harvard University Press,1970).

46. The analysis of authority by Richard Sennet is carried out in a similar vein: it focuses on affectivemotivations. Authority is for Sennet an emotional bound that is established between unequals, whilefraternity—to which Sennet intends to dedicate another book—is a bound between equals. SeeRichard Sennet, Authority (London: Seeker and Warburg, 1980).

47. See Robert Nozick, Anarchy, State and Utopia (Cambridge, Mass.: Harvard University Press, 1974).48. See Henry J. McCloskey, “A Note on Utilitarian Punishment”, Mind, (72) (1963), p. 599.49. Robert Nozick, Anarchy, State and Utopia, op.cit., p. 32.50. Ibid., p. 226 n.51. John Rawls, A Theory of Justice, op.cit., p. 302.52. John R. Lucas, On Justice, (Oxford: Oxford University Press, 1980), p. 187.

53. Raymond Boudon, Effets pervers et ordre social (Paris: P.U.F., 1977) ch.5; for a presentation inEnglish of the outline of the argument, see Raymond Boudon, “A Sociologist looks at Rawls’ Theoryof Justice”, Contemporary Sociology, 5 (1976) n.2, pp. 102-109.

54. John Rawls “A Kantian Conception of Equality”, op.cit., p. 97.55. Ibid., pp. 95 ff.56. See John Rawls, “Kantian Constructivism in Moral Theory”, op.cit.57. See Blaise Pascal, Pensées, in Oeuvres Complètes, ed. J. Chavelier (Paris: Bibliothéque de la Pléiade,

1954), 230, p. 1149: “On ne voit rien de juste ou d’injuste qui ne change de qualité en changeant declimat. Trois degrés d‘élévation du pôle renversent toute la jurisprudence; un meridien décide de laverité; en peu d‘années de possession, les lois fondamentales changent; le droit a ses époques; l‘entréede Saturne au Lion nous marque l’origine d’un tel crime. Plaisante justice qu’une rivière borne!“.

58. See John Rawls, A Theory of Justice, op.cit., pp. 243 ff. and passim.

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