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 relationscontrols the fairness of exchanges

(procedural), transactions and contractsrectifies 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 weakpolitical 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 sanctiona) 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 counter-motivation 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 re-education

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 non-frequent 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 justicea) co-existential action is good, anti-coexistential action is

badb) 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 anti-coexistential 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 non-objective 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 inter-personal, 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