Justice and Social Contracts in Ancient Greece and Modern Philosophy, Study notes of Law

Download Justice and Social Contracts in Ancient Greece and Modern Philosophy and more Study notes Law in PDF only on Docsity! Philosophic Foundations of Distributive Justice What and how we think of distributive justice is informed first and foremost from philosophic foundations. Although distributive justice has a long history of interest among philosophers, it is largely only in the twentieth century that it has claimed the attention of economists and public policy makers. While there are many reasons for the exclusion of distributive justice from economic considerations, economists have helped to refine the notion in terms of economic functions of the public sector in general, and in terms of how risk governs decisions in particular. Before we turn to the role of economists in the framing of the question of distributive justice, we can begin our inquiry by looking first at what philosophers in the Western Tradition have had to say on the subject. Plato (428-348 BCE) The Republic, Book II “They say that to do injustice is, by nature, good; to suffer injustice, evil; but that the evil is greater than the good. And so when men have both done and suffered injustice and have had experience of both, not being able to avoid the one and obtain the other, they think that they had better agree among themselves to have neither; hence there arise laws and mutual covenants; and that which is ordained by law is termed by them lawful and just. This they affirm to be the origin and nature of justice; – it is a mean or compromise, between the best of all, which is to do injustice and not be punished, and the worst of all, which is to suffer injustice without the power of retaliation; and justice, being at a middle point between the two, is tolerated not as a good, but as the lesser evil, and honoured by reason of the inability of men to do injustice. For no man who is worthy to be called a man would ever submit to such an agreement if he were able to resist; he would be mad if he did. Such is the received account, Socrates, of the nature and origin of justice.[4] On the division of social classes, Plato wrote of: Governing (Rulers or Philosopher Kings) — those who are intelligent, rational, self-controlled, in love with wisdom, well suited to make decisions for the community. These correspond to the "reason" part of the soul and are very few. Protective (Warriors or Guardians) — those who are adventurous, strong and brave; in the armed forces. These correspond to the "spirit" part of the soul. Productive (Workers) — the labourers, carpenters, plumbers, masons, merchants, farmers, ranchers, etc. These correspond to the "appetite" part of the soul. Plato’s taxonomy of social classes did not include slaves, who constituted a not inconsiderable share of ancient Greek society. Moreover, Plato rejected the model of Athenian democracy in favor of rule by philosopher-kings. - 2 - Pericles (495-429 BCE) The Funeral Oration from Thucydides (460-395) The Peloponnesian War, Book II. "Our constitution does not copy the laws of neighbouring states; we are rather a pattern to others than imitators ourselves. Its administration favours the many instead of the few; this is why it is called a democracy. If we look to the laws, they afford equal justice to all in their private differences; if no social standing, advancement in public life falls to reputation for capacity, class considerations not being allowed to interfere with merit; nor again does poverty bar the way, if a man is able to serve the state, he is not hindered by the obscurity of his condition. “The freedom which we enjoy in our government extends also to our ordinary life. There, far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbour for doing what he likes, or even to indulge in those injurious looks which cannot fail to be offensive, although they inflict no positive penalty. But all this ease in our private relations does not make us lawless as citizens. Against this fear is our chief safeguard, teaching us to obey the magistrates and the laws, particularly such as regard the protection of the injured, whether they are actually on the statute book, or belong to that code which, although unwritten, yet cannot be broken without acknowledged disgrace. "Further, we provide plenty of means for the mind to refresh itself from business. We celebrate games and sacrifices all the year round, and the elegance of our private establishments forms a daily source of pleasure and helps to banish the spleen; while the magnitude of our city draws the produce of the world into our harbour, so that to the Athenian the fruits of other countries are as familiar a luxury as those of his own. Aristotle (384-322) Politics “Man is by nature a political animal.” (Book 1, Section 1253) Aristotle discusses the parts of the household, which includes slaves, leading to a discussion of whether slavery can ever be just and better for the person enslaved or is always unjust and bad. He distinguishes between those who are slaves because the law says they are and those who are slaves by nature, saying the inquiry hinges on whether there are any such natural slaves. Only someone as different from other people as the body is from the soul or beasts are from human beings would be a slave by nature, Aristotle concludes, all others being slaves solely by law or convention. Some scholars have therefore concluded that the qualifications for natural slavery preclude the existence of such a being.[3] Aristotle then moves to the question of property in general, arguing that the acquisition of property does not form a part of household management (oikonomike) and criticizing those who take it too seriously. It is necessary, but that does not make it a part of household management any more than it makes medicine a part of household management just because health is necessary. He criticizes income based upon trade and - 5 - constantly exposed to the invasion of others: for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.” (2nd Tr., §123) The concept of the right of revolution was also taken up by John Locke in Two Treatises of Government as part of his social contract theory. Locke declared that under natural law, all people have the right to life, liberty, and estate; under the social contract, the people could instigate a revolution against the government when it acted against the interests of citizens, to replace the government with one that served the interests of citizens. In some cases, Locke deemed revolution an obligation. The right of revolution thus essentially acted as a safeguard against tyranny. Locke affirmed an explicit right to revolution in Two Treatises of Government: “whenever the Legislators endeavor to take away, and destroy the Property of the People, or to reduce them to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are thereupon absolved from any farther Obedience, and are left to the common Refuge, which God hath provided for all Men, against Force and Violence. Whensoever therefore the Legislative shall transgress this fundamental Rule of Society; and either by Ambition, Fear, Folly or Corruption, endeavor to grasp themselves, or put into the hands of any other an Absolute Power over the Lives, Liberties, and Estates of the People; By this breach of Trust they forfeit the Power, the People had put into their hands, for quite contrary ends, and it devolves to the People, who have a Right to resume their original Liberty.”[12] Jean-Jacques Rousseau (1712-1778) Discourse on Inequality (1755) Rousseau's text is divided into four main parts: the dedication, the preface, an extended inquiry into the nature of the human being and another inquiry into the evolution of the human species within society. Also, there is a set of writings that expound upon important issues that were brought up in the beginning of the text.[2] Rousseau discusses two types of inequality, natural or physical and ethical or political. Natural inequality involves differences between one man's physical strength and that of another – it is a product of nature. Rousseau is not concerned with this type of inequality and wishes to investigate moral inequality. He argues moral inequality is endemic to a civil society and relates to, and causes, differences in power and wealth. This type of inequality is established by convention. Rousseau appears to take a cynical view of civil society, where man has strayed from his "natural state" of isolation and consequent freedom to satisfy his individual needs and desires. In the work, Rousseau concludes that civil society is a trick perpetrated by the powerful on the weak in order to maintain their power or wealth. His discussion begins with an analysis of a natural man who has not yet acquired language or abstract thought. He then considers the origin of society: - 6 - “The first man who, having fenced in a piece of land, said "This is mine," and found people naïve enough to believe him, that man was the true founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: Beware of listening to this impostor; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.” — Jean-Jacques Rousseau, Discourse on Inequality, 1754 The two fundamental principles of Rousseau's natural man are his natural, non- destructive love of self (amour de soi meme), and pity/compassion for the suffering of others ("another principle which has escaped Hobbes").[3] Pity and self-love, acting together, contribute to preserving the human species through time. Rousseau's natural man significantly differs from, and is a response to, that of Hobbes; Rousseau explicitly points this out at various points throughout his work. Rousseau discredits Hobbes for taking an overly cynical view of man. Unlike Hobbes's natural man, Rousseau's is not motivated by fear of death because he cannot conceive of that end, thus fear of death already suggests a movement out of the state of nature. Rousseau's natural man is more or less like any other animal, with "self-preservation being his chief and almost sole concern" and "the only goods he recognizes in the universe" being "food, a female, and sleep..." This natural man, unlike Hobbes's, is not in constant state of fear and anxiety. Rousseau's natural man possesses a few qualities that allow him to distinguish himself from the animals over a long period of time. Of importance is man's ability to choose, which Rousseau refers to as "free-agency" (f. libre-arbitre). However, Rousseau's proclamation of man's free will is undermined by his belief that man is "a being that always acts in accordance with certain and invariable principles",[4] and indeed contradicts the basic premise of the Discourse itself: that we can logically infer what actions man must have taken over the course of his development.[citation needed] The quality of compassion also motivates man to interact. Finally, man possesses the quality of "perfectibility," which allows him to improve his own physical condition/environmental situation and develop ever more sophisticated survival tactics. The increasing regularity and convention of man's contact with other men transfigures his basic capacity for reason and reflection, his natural or naive self-love into a corrupting dependency on the perceptions and favor of others. Natural, non-destructive love of self advances gradually yet qualitatively into a state of amour propre, a love of self now driven by pride and jealousy rather than merely elemental self-preservation. This accession to amour propre has four consequences: (1) competition, (2) self-comparison with others, (3) hatred, and (4) urge for power. These all lead to Rousseau's cynical civil society. But amour de soi meme also suggests a significant step out of the state of nature.[citation needed] Rousseau's man is a "savage" man. He is a loner and self-sufficient. Any battle or skirmish was only to protect himself. The natural man was in prime condition, fast, and strong, capable of caring for himself. He killed only for his own self-preservation. When the natural man established property as his own, this was the "beginning of evil" according to Rousseau, though he acknowledges the sanctity of the institution of property and that government should be created to protect it. The natural man should have "pulled up the stakes" to prevent this evil from spreading. This property established divisions in - 7 - the natural world. The first was the master-slave relationship. Property also led to the creation of families. The natural man was no longer alone. The subsequent divisions almost all stem from this division of land. Jean-Jacques Rousseau (1712-1778) The Social Contract (1762) This sum of forces can arise only where several persons come together: but, as the force and liberty of each man are the chief instruments of his self-preservation, how can he pledge them without harming his own interests, and neglecting the care he owes to himself? This difficulty, in its bearing on my present subject, may be stated in the following terms: "The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before." This is the fundamental problem of which the Social Contract provides the solution. The clauses of this contract are so determined by the nature of the act that the slightest modification would make them vain and ineffective; so that, although they have perhaps never been formally set forth, they are everywhere the same and everywhere tacitly admitted and recognised, until, on the violation of the social compact, each regains his original rights and resumes his natural liberty, while losing the conventional liberty in favour of which he renounced it. Immanuel Kant (1724-1804) Critique of Pure Reason (1787) "Kant's political teaching may be summarized in a phrase: republican government and international organization. In more characteristically Kantian terms, it is doctrine of the state based upon the law (Rechtsstaat) and of eternal peace. Indeed, in each of these formulations, both terms express the same idea: that of legal constitution or of "peace through law." ... Taken simply by itself, Kant's political philosophy, being essentially a legal doctrine, rejects by definition the opposition between moral education and the play of passions as alternate foundations for social life. The state is defined as the union of men under law. The state rightly so called is constituted by laws which are necessary a priori because they flow from the very concept of law. A regime can be judged by no other criteria nor be assigned any other functions, than those proper to the lawful order as such." [86] He opposed "democracy," which at his time meant direct democracy, believing that majority rule posed a threat to individual liberty. He stated, "...democracy is, properly speaking, necessarily a despotism, because it establishes an executive power in which 'all' decide for or even against one who does not agree; that is, 'all,' who are not quite all, decide, and this is a contradiction of the general will with itself and with freedom."[87] As with most writers at the time, he distinguished three forms of government i.e. democracy, aristocracy, and monarchy with mixed government as the most ideal form of it. - 10 - Social and economic inequalities are to be arranged so that (Rawls, 1971, p.302; revised edition, p. 47): (a) they are to be of the greatest benefit to the least-advantaged members of society, consistent with the just savings principle (the difference principle). (b) offices and positions must be open to everyone under conditions of fair equality of opportunity Rawls' claim in (a) is that departures from equality of a list of what he calls primary goods—"things which a rational man wants whatever else he wants" [Rawls, 1971, pg. 92]—are justified only to the extent that they improve the lot of those who are worst-off under that distribution in comparison with the previous, equal, distribution. His position is at least in some sense egalitarian, with a provision that equality is not to be achieved by worsening the position of the least advantaged. An important consequence here, however, is that inequalities can actually be just on Rawls' view, as long as they are to the benefit of the least well off. His argument for this position rests heavily on the claim that morally arbitrary factors (for example, the family one is born into) shouldn't determine one's life chances or opportunities. Rawls is also keying on an intuition that a person does not morally deserve their inborn talents; thus that one is not entitled to all the benefits they could possibly receive from them; hence, at least one of the criteria which could provide an alternative to equality in assessing the justice of distributions is eliminated. Robert Nozick (1938-2002) Anarchy, State, and Utopia (1974) Nozick's entitlement theory comprises 3 main principles: 1. A principle of justice in acquisition - This principle deals with the initial acquisition of holdings. It is an account of how people first come to own common property, what types of things can be held, and so forth. 2. A principle of justice in transfer - This principle explains how one person can acquire holdings from another, including voluntary exchange and gifts. 3. A principle of rectification of injustice - how to deal with holdings that are unjustly acquired or transferred, whether and how much victims can be compensated, how to deal with long past transgressions or injustices done by a government, and so on. Nozick believes that if the world were wholly just, only the first two principles would be needed, as "the following inductive definition would exhaustively cover the subject of justice in holdings": 1. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding. 2. A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding. - 11 - 3. No one is entitled to a holding except by (repeated) applications of 1 and 2. (Nozick 1974:151) Thus, entitlement theory would imply "a distribution is just if everyone is entitled to the holdings they possess under the distribution" (Nozick 1974:151). Unfortunately, not everyone follows these rules: "some people steal from others, or defraud them, or enslave them, seizing their product and preventing them from living as they choose, or forcibly exclude others from competing in exchanges" (Nozick 1974:152). Thus the third principle of rectification is needed. Entitlement theory is based on John Locke's ideas.[1] Under entitlement theory, people are represented as ends in themselves and equals, as Kant claimed, though different people may own (i.e. be entitled to) different amounts of property. Nozick's ideas create a strong system of private property and a free-market economy. The only just transaction is a voluntary one. Taxation of the rich to support social programs for the poor are unjust because the state is acquiring money by force instead of through a voluntary transaction.