Contemporary Theories of Social Justice - How Can Justice be said to Give Priority to the Protection of Liberties?

Contemporary Theories of Social Justice

How Can Justice be said to Give Priority to the Protection of Liberties?

In one of its recent judgements, K.A. and A.D. c/ Belgium (2005), the European Court of Human Rights (“the ECHR”) gave a new definition of justice which was not anymore, according to the European judges, linked to the protection of liberty, in the first place, but more deeply rooted in the conception of human dignity, considered as the very essence of human kind. But affirming the priority of human dignity – a vague principle that is merely definable morally and somehow indefinable from a legal point a view – over liberty can be regarded as redefinition of justice in an anti-liberal way. If justice is not the protection of liberty, then what is it? Does equality have a role to play in our perception of justice or is it more justice [seen] as fairness that is ought to be remembered? Focusing on the work of John Rawls, Ronald Dworkin and Robert Nozick on justice – even if other philosophers’ thoughts are to be taken into account, admittedly – to backup my reasoning from a philosophical point of view, in the first place, I will, also, base my argumentation on a judicial and legal approach since the question deals with justice and since that justice is not just a philosophical concept. It has to be treated in its actual effectiveness.

Then, not only shall I bring out the dialectic that exists between the liberal conception of justice and its equalitarian form, but my task will also be, as I have already said, to question liberal justice from the point of view of individual consent and human dignity. A key-question, which would properly sum up what I plan to discuss in this essay, would be the following: if the protection of liberties prevails over the advent of absolute egalitarianism in the establishment of the concept of justice – which is highly questionable –, can justice, from then on, deny dignity on the grounds that liberty is inalienable?

Definition of terms:

In such a study, it is necessary, in the first place, to provide precise definitions to the terms I will inevitably use many times and which can have different meanings. About liberty, the conception I will keep in mind is the one of negative liberty given by Isaiah Berlin . Opposed to positive liberty – the liberty defended by Aristotle and the pre-Modern thinkers who see liberty as an necessary involvement in the political affairs –, positive liberty (the liberty of the Moderns, as Benjamin Constant described ) is, actually, liberal liberty which can be defined as the protection of individual rights and the limitation of the State’s intervention in people’s private life. Even if, these days, liberty is always attached to negative liberty, it appeared relevant to me to insist on the fact that I will use the term liberty in its liberal sense. Here, the question is about “the protection of liberties” and not of liberty. The difference between those two words is not obvious and, still, “liberty” is a more general concept while the term “liberties” refers to more specific concepts (freedom speech, freedom of thought, for instance).

As far as equality is concerned, the problem of a definition of this term is more complex. Equality implies that something is measured (length, weight, height, income). Then, equality can be conceived as equality before the law, which is the very basis of our legal systems, or as equality of resources as defined by Ronald Dworkin. I shall keep in mind the definition of equality as equality before the law as well as equality of resources – which is a liberal conception of equality – as Dworkin defined it (according to Dworkin, differences of natural endowments of talent should not lead to a distinct distribution of resources to individuals in a society: “I shall assume, [...], that equality of resources is a matter of equality in whatever resources are owned privately by individuals.” ).

Finally, concerning the concept of dignity – not directly evoked by the question of this essay but, indirectly, implied by the research of justice and of what is just –, providing an exact definition of the term is pretty difficult too. Basically, dignity is the way of treating individuals in their mankind, respecting what distinguishes them from savagery and brutality. Admittedly, some will retort that it does not make sense to speak of human dignity when they question is: “How can justice be said to give priority to the protection of liberties?” Nonetheless, I think it is a necessity, when justice is the central matter, to speak of dignity which can be seen as a regulating concept in front of an uncontrollable liberal liberty.

Justice as the protection of individuals’ rights:

The concept of justice as the protection of liberties is the most obvious definition of justice that may be given. And it is true that, prima facie, justice has been conceived as a hinder to the interference of the State of individuals’ privacy. Here, from a historical point of view, it appears that the trauma of absolute power is still alive and, for that reason, negative liberty is highly attached to the protection of individuals. From then on, justice makes the individual – which is considered as rational and free of consent by the liberal theory – the supreme and absolute value. And individuals, for liberals, ought to be absolutely respected in the achievement of his rights and liberties only because he is a human being. Even if this conception of liberal justice may be contradictory to Aristotle’s definition of justice – to him, justice has to be considered as a human virtue that, in the end, uniquely leads to the improvement of other individuals’ interest and not to mine – since liberty, in a liberal sense, does not take into account others’ interests.

Then, a good example of the advent of justice as the protection of liberties is, to me, the French Civil Code. Indeed, the Civil Code is a legal text attached to citizen’s rights and to their first and unalienable right which is: property . So the first philosophical and political revolutions, such as the French or the American Revolution, – which both had in mind a liberal definition of justice – gave clearly the priority of the protection of liberties. And it is a fact now that liberty is the stalwart value – or probably one the stalwart values – that has to be taken into account in the intent to give a precise definition and effectiveness to the principle of justice, and, to some extent, to social justice. But, at the time, is the sole affirmation of the protection on individuals’ liberties a relevant condition to provide justice a meaning? Isn’t it potentially harmful to promote wild negative liberty without introducing a certain amount or equality, or, at least, of fairness?

Justice as equality, necessarily incompatible to liberal justice?

Admittedly, some liberals – the most extreme, the libertarians as Robert Nozick – would retort that justice has to be conceived uniquely from a liberal point of view, or in a non-interventionist sense. Nonetheless, I think the concept of justice, in its essence, insists on the fact that, to organise a society, a regulation is needed, a regulation that goes beyond protecting people’s rights and liberties. If we think of justice, we think, in the first place, of equality before the law. Not a single sound philosopher of political thinker would, these days, question this principle. Then, justice has to cope with this principle of isonomy that embodies it basis. Not only does it have to cope with isonomy, but also it has to integrate it in its way of working and of organising people’s relations with one another.

But, equality before the law is not even sufficient if justice is designed to give the most relevant way of organisation to society. Actually, this is more about fairness than about proper equality that I shall talk in the sense that, beyond isonomy, a just society seems more appropriate to my study than an egalitarian society. Fairness is basically a principle that demands both equality of opportunities and equality of treatment. To express the idea of fairness, I have always liked the metaphor of the starting line: provide individuals fair conditions at the starting point – considering their particular conditions, support the least well-off with the wealth of the better-off, for instance – and let them achieve what they can achieve and reach the final point they deserve in society.

Isn’t it the very definition of the essence of meritocratic justice? A justice that would, at the same time, take into account liberal views mixed with fairness and merit. In that sense, isn’t liberty compatible with equality – conceived as fairness, more or less – in the definition of justice? I would even say that if we want individuals to express fully their rights and liberties, societies and social justice have to provide them, in the first place, fair – and sometimes, equal – conditions of starting points.

Consequently, equality represents the sine qua none condition to the advent of liberal and negative liberty. Justice as liberty is an end and fairness the means to reach this ideal. And, social justice is nothing more than a human institution that gives the priority of the protection of liberties in the limits built up by fairness and equality.

Beyond liberty and equality, justice as dignity – liberty as mankind.

Stopping my argumentation at the point of justice seen as an alliance of liberty and equality could have been relevant, in a way. Nonetheless, I personally find that not only does justice is the result of a constant dialectic between those two concepts, but it is also deeply linked to the principle of human dignity that I have previously mentioned and defined. In this part, I will consider justice both from a philosophical point view – i.e. focusing on social justice, which has been so far what I have tried to do – and in a legal, or judicial, sense. The example I used in my introduction, K.A. and A.D. c/ Belgium, actually deals with sadomasochism and free consent of individuals. Even if it seemingly does not refer to my study, I believe that this case is relevant to explore since the final aim of this paper if to know if justice is only the protection of liberties or something more.

I have demonstrated that, already, it is a bit more that sole justice. But I think that, beyond that first affirmation, justice has to be regarded as an institution that protects humans from denying each others’ humanities. In a sense, this is what negative liberty tries to do: preventing the State from depriving people of their privacy and their freedom of speech, of thought, of expression. But if liberty is unleashed without control, or with the unique control of fairness in its basis, justice may be dismissed, in the end.

Justice, even if it first promotes people’s liberty of doing what they want to do in the limits of the law, is not compatible with the pervert effects of individualism and cultural relativism unleashed by liberal liberty. I assume that liberals would be shocked by the following statement but: justice does not guarantee anymore the protection of liberties if individuals start to act against human dignity.

In the European Court of Human Rights (ECHR) judgement, a man was sentenced because he denied her wife’s dignity – and liberty – by hitting her, with her agreement and consent, bringing the excuse that, since he was sadomasochist, justice should protect its liberties and rights from criminal courts’ intervention. As far as I am concerned, I find it completely irrational and dangerous to transform liberty in a concept that would, in the end, threaten liberty itself and justice.

Then, even if I have mentioned moral arguments that are not entirely philosophical – but, is justice definable without morality? –, my point is that justice is necessarily perverse in its effects if the very principle it is based on – the protection of liberties from others’ intervention – starts to forget the aim it was designed for in the first place: always ensure the respect of people’s humanity. That is why dignity is undeniably a part of the essence of justice.

In fine, justice – and social justice – is a complex concept. Based on the protection of liberties, first, it is also deeply rooted in the principles of equality before the law and equality of opportunities. But even if equality, in a way, provides to liberal justice a sense of fairness, which is necessary to reach actual justice, I think that the respect of human dignity ought to be added in the founding concepts of justice in order to avoid a potential flip of the essence of human rights. Because, sadly, individuals naturally tend to deny each other’s dignity on the grounds of absolute and inalienable liberty. This may sound like despotic paternalism but I believe that, in order to build a sound and effective concept of justice, in the end, dignity should even prevail both on equality and on the protection of liberties.

Bibliography:

Rawls, John, A Theory of Justice, revised edition, 1999.

Dworkin, Ronald, What is equality? , 1981.

Aristotle, Nicomachean Ethics, book V.

Nozick, Robert, Anarchy, State and Utopia, 1974.

Berlin, Isaiah, Two Concepts of Liberty, Inaugural lecture, Oxford University, 1958.

Constant, Benjamin, De la Liberté des Anciens comparées à celle des Modernes, 1819.

Berten, André, Libéraux et communautariens, Paris, PUF, 1997.

Pettit, Phillip, Republicanism: A Theory of Liberty and Government, 2004.