Principles of Justice

PART ONE: QUALIFIED DEMOCRACY
Principles of justice
The original political contract has so far been defined only in procedural terms as a transcendental exchange; we must now explicate its content. To begin, one of the advantages of the original legal contract must be asserted1: it is that from which people as such benefit and which only occurs reciprocally. If thereby the hypothesis of a normative modernization is indeed confirmed, a two-stage response must then be examined: this basic benefit of the law is followed by the full development of a modern form of the law in the normative sense. The corresponding principles of justice bear on the basic order of a society, and not on the tenor of a person. They are not concerned with personal but with social (and more specifically political) justice, even though a community is not established until the second, original state contract. The first principle of justice demands that society be set up based on the rule of law, while the two subsequent principles require a just structure of society. The former represents lawconstituting justice, the latter law-standardising justice. Let us start with the law itself. According to Hobbes, Bentham, and Austin and their theory of imperatives, which long dominated legal theory, law consists of commands from a superior power. This claim2 is challenged3 by the existence of customary law, by the fact that the commanding body, the legislature, is itself subjected to the law, and by the fact that there is a difference between law and (organised) crime (Hffe 1995a, ch. 6; Hobbes, Leviathan, ch. 26; also Hffe 1996a). The law is more appropriately seen as an embodiment of social rules that provides all participants, including members of the legislature, with a strict standard. Free of the divergent interests and opinions of individuals, it works against the human tendency to be the judge of ones own cause and to resolve conflicts according to ones own personal interests, opinions and power (private force). Notwithstanding the fact4 that the rules are collective in nature, they are not based on some hypostatized notion of community or society, on an entity that would exist independent of, and prior to, individuals. Rather, conditions of reciprocity exist that can be compared with the basic structure of language: its grammar. Just as grammar does not actually fetter language in chains5 but merely provides the framework for its correct usage, rules too, do not necessarily lead to curtailments6 but provide order and structure instead. As a grammar of communal life it provides the framework within which all actions performed by individuals, clubs, associations and institutions are socially permissible. Just as the normative rules applicable to a particular language are comprised not only of conscious but also of unconscious building principles, social grammar too, is not limited only to those obligations that are spelled out or written down. This includes common law and its opposite, well-defined rules, as well as legal principles such as good faith and common decency7, and lastly, soft law. Since the corresponding set of rules is prevalent 8 nearly everywhere, it represents a universally valid social grammar. Of course, no particular law is universally applicable, only the legal form of communal life is. This comprises the conditions that enable communal life in the first place, the functional conditions of reciprocity that have the rank of a transcendental (social) grammar. These are the conditions at which the original legal contract is directed.
1 2 3 4 5 6 7 8
The distributivecollective advantage of the purported benefits9 of social rules needs to be questioned10. Why do we need an authority of rules? After all, as a social grammar the law does not yield 11to power pedantry 12or rule-fetishism13. Rather, it raises a caveat 14 to a crude Social Darwinism, against the right of might. Individual arbitrariness, which includes passions such as envy, jealousy, vindictiveness15and even malice 16, as well as individual force, be it of physical, emotional or intellectual nature, are to be replaced by the strict common ground that unites every majority with every minority: rules. Neutral with respect to both majorities and minorities, rules are, simply, an impartial17 third party and hence the embodiment of justice. One might however object that there also exists a form of crime, which organizes itself according to rules but which should not be called just or lawful, despite its rule based order. On the contrary, so the objection continues, organized crime commits injustice on a grand scale 18. The objection seems to call for an additional provision. Accordingly19, it is not rule-based order itself that defines justice and law, but qualified rules that serve a particular purpose. Indeed, just like representatives of a legal order, such as inland revenue20 officers, criminals too, abide21by the same meta-rule: he who does not pay will be punished. In this respect the law sets itself apart by means of an additional double condition, a procedural and a substantive one. Technically, a law must be authorized: a revenue officers request for payment is authorized by the tax law22, which, in turn, owes its existence to its legislative mandate. In terms23 of content, the set of rules must be of benefit to all who are directly implicated. Taxes pay for a politys undertakings, which exist not because of the payment request but independently of it. Even if a benevolent Mafioso puts his extortion24 money now and then to charitable uses, the money eventually lands in the pockets of the organization that collects it and serves its diverse private interests whether they be egoistic or altruistic in nature. Also, the victims have an interest in escaping the threatened reprisals, not independently of the threats but simply because of them. Thanks to these two additional conditions, the law does not seem to consist of just any rules but only of qualified ones, rules that have been authorized and are directed at the overall welfare. However, these additions are not actually required. Organised crime, in the act of organizing the crime, fulfils only one half of the requirement of equal treatment, which is an indispensable condition for rule-based order. The rule based order does not serve to transform crime into law but only to improve the effectiveness and efficiency of crime. The other factually predominant half infringes 25 upon equal treatment. The revenue officer too, is subjected to the tax law and thus
9 10 11
PEDANTSM s. n. Parad de erudi ie i de competen caracteristic pedantului; meticulozitate (excesiv i formal ); exagerare n lucruri de mic importan ; pedanterie. 13 FETIcSM s. n. Faptul de a venera feti uri, cultul feti urilor. Fig. Venera ie exagerat , lipsit de discern mnt, fa de o idee, de un principiu etc.
14 15 16 17 18 19 20 21 22 23 24 25
12
inclaca
confirms, en passant, that the law is not comprised of power-based commands but of social rules. The Mafioso, by contrast, extorts money only from others, not from himself; and it is this, the structural violation of the requirement of equal treatment and the rule-based order, which makes his behavior a crime. One can even imagine an improvement on the benevolent Mafioso, a Robin Hood, who distributes his bounty 26 not now and then 27 but systematically to the poor. He too nevertheless impinges28 on the strict rule-based order and fails to create an alternative law, a counter-law, for this very reason. For he inflicts29 on the bereft30 party that which he would not want to inflict either on himself if the bounty is not yet shared, nor on the poor once they have received the bounty. This follows because if they first Robin Hood, later the poor are also robbed, Robins lifework is destroyed. Put more positively, a strictly undisputed redistribution of wealth is possible only if it is compliant with the law and a rule-based order. With this, we arrive at the first principle of justice. Prior to the common principles of justice, including Rawls principle of the greatest equal freedom, it stipulates the universal precept of the rule of law: As an embodiment of rules that are applicable strictly and in every respect31, the law opposes personal arbitrariness 32 and personal force and, for that very reason, is to reign among all human beings. The law itself boasts an emancipating power: it liberates from arbitrariness and violence. This emancipation may occur to a lesser or to a greater degree. This difference between a partial liberation, as opposed to one that is complete, confirms the hypothesis of the immanent completion: law consists of a rudimentary state free of arbitrariness and violent force, and these push for a continuation and eventual fulfillment that transforms the bare law into a law that is just. Thus, the demand for fulfillment is generated from the foundation of the qualified rule itself. This justice that succeeds in standardizing the law brings to full fruition33 the essence of elementary justice, that is the veto against arbitrariness and force. An objection against this justificatory step arises that has been known in philosophy since Platos arguments with the sophist Callicles (Gorgias, 482): why should the mighty also follow the rules? There are both empirical and pragmatic answers. First, even the consistently and overwhelmingly34 powerful, do not want to always be fighting, but wish, also, to reserve time and energy for other things in life. Second, no one is overwhelmingly powerful in all respects, always, and indefinitely35. Those who are physically superior can be overpowered by strength of character, such as courage, determination and tenacity 36 ; of intellect, such as experience, reason, and judiciousness37; or through sheer luck38. What is more, even the mighty need to sleep, may become ill, succumb to an accident39, or be defeated by the combined power of the weak. Above all, even the most powerful members grow old and are eventually overtaken by their offspring. For these
26 27 28 29 30 31 32 33 34 35 36 37 38 39
cedeze la un accident
reasons even the mightiest do not rely solely on their present superiority but try to maintain it over time, which requires rules, among other things. Ideally, they have others authorize them to set the rules, in which case they do prefer the rule of law.
3.2. HUMAN RIGHTS A consent40 from the mightiest that is motivated purely by facts and empirical pragmatism does not yet, however, substantiate41 an ought: neither the mandate to establish the law nor the duty to submit to its rule is sufficient. This ought is only justified by the reciprocity of the transcendental exchange, which is as such universal. Hobbes sees universal advantage established by a dominant interest. Understood positively as the greatest good, it is the natural right to life (Leviathan, ch. 14); understood negatively as the greatest evil, it is the fear of a violent death (ch. 13). The political situation of that epoch, however, contradicted this assessment42. The civil wars at that time clearly43 demonstrated what later conflicts have confirmed: that to some freedom of religion is more important than their own survival, while to others political freedom is, and to others still linguistic and cultural identity is paramount44. This refutation 45 is characterized by a dual qualification. On the one hand, not one undisputedly 46 better alternative is mentioned. Instead, there are various very plausible options, more options than those already mentioned, for example reputation, wealth and power. On the other hand, survival does indeed lose its status as the exclusive goal, but remains nevertheless one of the candidates. Hobbes was therefore wrong not only about the content, survival, but also in the assumption that a single dominant interest exists that is, a highest good that is shared equally by all human beings. The alternative consists in interests of a higher order, in the conditions of the capacity to act that were mentioned earlier. These lead to rights that are based solely on the fact that one is human, that is to human rights. From the fact that human rights already have their legitimatory place in the original legal contract, certain particularities follow that are worth drawing out first (see Hffe 1996, chs. 3 and 4; 1979; 1995a, ch. 12.3; for the recent debates on human rights see Gosepath and Lohmann 1998; Perry 1998; on the trisection see Jellinek 1914; more recently Marshall 1950). (1) As moral claims within the realms of coerced morality and justice, human rights avoid the simplified antithesis of representing exclusively either moral or positive legal authority. As legalmoral claims, the disavowal47 of which would be disqualified as unjust by any positive legal order, they encompass48 two modes of existence that are factually complementary but methodologically very distinct. Within legal morality they are only human rights, that is to say ber-positive claims that, once acknowledged as positive law, become human rights as basic rights of a positive community nonetheless49.
40 41 42 43 44 45 46 47 48 49
(2) The fact that human rights are derived already from the primary contract, from the original legal contract that the state contract presupposes, has ramifications 50 that are ignored in many theories: human rights exist prior to any state, they are rights that individuals have to grant one another as legal subjects. Even a democracy is only in a secondary sense responsible for legitimacy, in that it helps ber-positive rights to attain a positive reality. It cannot originally grant these rights but can guarantee them in a subsidiary51 manner. Hence, the original legal contract substantiates52 only the reciprocal (legal) obligation not to violate anothers possessions, such as life and limb53. The justification of the requirement to protect these goods through the rule of law and, for example, to provide police protection when ones life or limb is threatened, does not occur until the original state contract is concluded54 (ch. 4.1). (3) The law consists of a core of justice, which manifests itself in distributive collective advantages, such as the protection of legal goods, for example, life, health, or property. These legal goods enjoy the status of human rights, so that certain human rights are part of law-constituting, rather than law-standardizing justice. Enter normative modernization once again: while the optimum is not reached until the stage of the just law, a minimum of human rights is simply indispensable for the law itself. (4) Many controversies surround the detailed determination of the contents of human rights. These do not apply to the core however, for which subtle deliberations55 are not required: all it requires are the truisms 56 known to us from traditional anthropological thought. Philosophical anthropology has known since its Greek origins that each human creatures capacity to act distinguishes itself in three ways: (a) unlike pure rational beings, deities or angels, it involves a zoon or animal, that is a living organism. (b) In contrast to the animals commonly known to us, it involves a zoon logon echon or animal rationale: a creature capable of reason and speech. (c) Not least does it involve a zoon politikon, both in the unspecified sense of an ens sociale, which is inclined towards a community, and in the specific sense of an ens politicum, which is inclined towards a polis. Socio-transcendental interests are to be expected in all three areas. As such57, three groups of human rights can be distinguished: the rights of living creatures; the rights of creatures that speak and reason; and the rights of social as well as political creatures. A further distinction emerges when the nature of the transcendental exchange is more closely examined. There is a negative reciprocity, an exchange of renunciations, which leads to negative rights to freedom, and a positive reciprocity, an exchange of services and provisions, which establishes the positive rights to freedom that is social rights. Finally, there is the reciprocity of political authorization that manifests itself in the democratic rights to participation. Yet, while the first two groups of rights are already part of the original legal contract, the third group is not established until the conclusion of the original state contract. Without pretending to be comprehensive in any way or form, we shall only deal with human rights that are as such essentially uncontested. By appealing to transcendental and anthropological
50 51 52 53 54 55 56 57
TRUSM s.n. (Liv.) Adev r banal, evident, care nu merit enun at; banalitate.
ca atare
interests as well as to an inherent reciprocity, we avoid conceptions of humanity that are culturerelative, so that the corresponding rights can bear out their claim to intercultural validity. Incidentally58, the counterassertion that rights are valid only relative to cultures is sometimes only used for strategic purposes: governments that are authoritarian or semi-authoritarian want to thus escape criticism. But even if the counter-claim is not purely strategic in nature, its substantiation, which is based on ostensibly competing59 Asian or African values, can usually be rebutted60 from within that culture. For example, it is claimed that Confucianism does not contain an abstract notion of human being but only the disparity61 of roles and tasks, so that it fails to identify human beings as bearers of human rights. However, as is postulated by Confucianisms second most important classic, Mencius (about 400 BC), each and every human possesses an innate dignity (On Becoming Human, 95). Since dignity is derived from the moral nature that people are awarded from heaven, rulers can neither accord nor withhold it. Legitimate rule, by contrast, is bound to respect this dignity. Hence, Mencius not only establishes a normatively demanding foundation of human rights, he also clearly distinguishes heavens original granting of human dignity from a mere subsidiary62 granting through human rule. Neither can the idea of human rights be relativised through African culture. Some African or European intellectuals worry that Africas characteristic emphasis on solidarity undermines the basis of human rights, that is, the individual personality of human beings (Hffe 1999a, 43). The African social ethicist Bujo (1993) however, emphatically rejects this interpretation. Already the naming of many African tribes, so Bujo tells us, reflects an appreciation of individuality: the usual western family name that is handed down from father to son or more generally, from parents to children is dropped. Instead, each child has only one individual name, which is determined by the circumstances under which the child is born, and thus designates the historically irreproducible singularity of each individual. Such examples allow us to reject the popular but unjustified assumption that the Western hemisphere is the only trustee63 of human rights (Rouland 1994). At any rate64, this assumption is inconsistent with criminal law, which protects in nearly all cultures particular rights to human dignity, namely 65 the right to life and health, to property and to a good name. Further building blocks of human rights can be discovered in the critique of unjust rule that reaches back into early history. In the epic of Gilgamesh (approx. 2,000 BC in its oldest version) for example, the protagonist, the great king of Uruk, is summoned to66 not abuse his position of power and to treat his servants justly. In the sixteenth century BC national Indian epic Mahabharata, rulers are required to protect their people by all means possible. Particularly impressive are the tribes of the Mohawk Indians which, already in the fifteenth century and, hence, three hundred years before the first Western declaration of human rights, announced that all members of their tribes should be personally free and equal in their privileges and rights (Morgan 1851). Also, against the danger of religious intolerance, Islam should be reminded of 67 Sura 2:257: there is no compulsion 68 in
58
59 60 61 62 63 64
aparent concurente nl turat

DISPARITTE f. livr. Lips de echivalen , de leg tur ntre elemente; nepotrivire.
secundar
CURATL s.f. Institu ie legal pentru ocrotirea i administrarea intereselor unui minor, ale unei persoane atinse de o anumit incapacitate.
n orice caz 65 i anume 66 Este chemat s 67 S - i reaminteasc de
religion. In the face of such overwhelming evidence it is possible to make a generalization that includes at least the rudiments of human rights in the common heritage of human justice. However, whoever follows Rentelns (1990) attempt at substantiating69 human rights solely on the grounds of a factual value consensus between cultures runs the risk of reducing the argument too much (for a substantive defence of Western universalism, see Tnnies 1997). The arrogance of the West, which claims that human rights were created in the western hemisphere, is unjustified. But the exact opposite is just as wrong, that is the self-criticism that sees human rights challenged by pathologies that allegedly70 only occur in the West. Without a doubt, human rights declarations are often born out of necessity. However, poverty, massive injustices such as slavery, colonialism, religious and other suppression, can also be found outside the Western hemisphere and its modernity.
3.3 NEGATIVE RIGHTS TO FREEDOM Let us begin with negative exchange, the reciprocity of basic renunciations. 3.3.1 Integrity of Life and Limb A clear example of a transcendental interest is the integrity of life and limb. Of course, extreme situations illustrate that, contrary to Hobbes assumption, this is no dominant interest. One can indeed, as a religious or political martyr, sacrifice ones life or one can terminate it out of weariness71. Even so, life is special in that without it one is neither able to have any desires at all nor to fulfill them. Both, the martyr and the suicide confirm that here lies an uncompromising condition, that one be able to act freely. Martyrs wish to decide on their own why, suicidal individuals, in addition, wish to decide when and how their respective lives are to end; otherwise they are simply killed. Two general empirical conditions place every human being in danger of falling prey72 to the physical force used by others. On the one hand, in a world where space and resources are limited, one cannot forever avoid conflict with others. Likewise, during conflict human beings may use violence against, and be injured by, others. As such 73 , there exists a basic equality or equal distribution: human beings are potential victims as well as potential perpetrators74. Since it is not bound to particular cultures and eras, the danger of physical force and violence is part of the conditio humana socialis which, contrary to the utopian assumptions of some social theorists, cannot be genuinely overcome. In view of the general danger of physical violence the question arises whether one prefers to maintain ones full freedom to act and thereby be both the perpetrator and the victim, or rather to relinquish75 the right to full (private) force and, consequently avoid being either the victim or the perpetrator. According to the first principle of justice, the qualified rule-based order, the question is addressed with the help of a rule, that is with a rule-based both . . . and or a rule-based neither . . .
68 69
constrngere fundamentarea 70 Se presupune c 71 oboseal

72 73
de a c dea prad
Ca atare 74 f pta i 75 A renun a
nor. Although both options are characterized by reciprocity, because of their transcendental interest in life and limb, everybody prefers the neither . . . nor over the both . . . and reciprocity. One thus abandons the full or better, wild freedom to act so as to obtain in return a conditional freedom to act, as well as protection of life and limb. Here the transcendental exchange manifests itself as a transcendental exchange of freedom. Freedom is constrained for the sake of freedom, and from an unbound freedom (licentia76), and its threat of cruelty, evolves a freedom that is bound and secured at the same time (libertas). As argued earlier, not every exchange is just; rather, only those exchanges in which no one is being cheated77 because (subjectively) they have agreed to it and (objectively) goods of roughly78 equal worth79 are exchanged (ch. 2.5). In the case of the transcendental exchange of freedom both criteria are met, so that no one can reasonably fail to agree to the conditions set to ones capacity to act. What is more, because everyone renounces the same (wild freedom) and, in exchange, gains the same (freedom that is bound but also secured), that which is exchanged is roughly of equal worth80 and, consequently just. Doubts may arise however, because whenever men use physical force and are violent against one another, the both . . . and rule has clearly been preferred to the neither . . . nor rule. It could therefore be asserted81 that the transcendental exchange is thus invalidated. This objection misses the point that a choice has to be made between (alternative) rules. The act of violence already presupposes a capacity to act which, in turn, is owed to the neither-victim-nor-perpetrator situation. Only those who have initially not fallen prey to physical violence develop the capacity to act that allows them the infrequent violation. The violation thus deviates from a presupposed rule and contradicts the first principle of justice, rule-based order. Hohfeld (1966, 35) distinguishes between four categories of rights: the first category is composed of claims and liberties; the second category consists in powers, which allow one to alter82 claims and liberties (for example by giving them away), as in immunities, that is, protection from anothers claims and liberties. Our first human right combines three of these rights; it consists in the claim to have ones freedom (to act) protected from alien force and violence (including cruelty). In line with the character of the transcendental, however, the claim cannot be relinquished83 so that the third type of right, the power to alter claims, is dropped. Still, even an indispensable interest does not yet justify a claim. For according to the isought fallacys 84 formal logic, a mere interest does not substantiate 85 the right to have it acknowledged. Rather, the missing legitimacy consists in the minimal morality of reciprocity. It assumes that only where others accept the obligation to abstain86 from force and violence does the subjective right to life and limb actually exist. A claim to a provision is generally valid when, from the outset 87 , the provision is offered subject to a return provision. Claims are substantiated 88 in reciprocity, and universal claims are substantiated through the universal reciprocity that is
76 77
permisiune n elat 78 aproximativ 79 Egal ca valoare 80 Aproximativ de valoare egal 81 afirma 82 afecta 83 abandona 84 eroare 85 fundamenta 86 Abtine 87 De la inceput 88 justificate
characteristic of humans simply because they are human. Whenever an indispensable interest can be realized only in reciprocity, the indispensability is transferred to the reciprocity, and the corresponding exchange which in the case of life and limb consists of the renouncement of violent force is in itself indispensable. Lvinas (1987, 17387) seeks to explain human rights from the perspective of the Other. Whenever the Other turns an open and defenseless face towards us, so Lvinas asserts, it is to signify: you will not kill me. This line of argument is if it is more than an intuition excessively abridged89. For, indeed, when faced with anothers countenance, this others dignity can manifest itself rather palpably90. The possibility is only realized, however, if there exists a willingness to recognize that dignity in the first place. Conversely91, this readiness represents a moral deed that Lvinas ignores. He is similarly oblivious92 to the question of why one should be allowed to demand such moral provision at all, which is what the concept of the legal claim implies. Not simply because every human has a higher-order interest in life and limb does the corresponding human right exist, but because this interest can be realized only in reciprocity: within a system of reciprocity everyone enjoys that provision of others (renouncing force and violence) which is only given subject to the return provision of ones own renouncing force and violence. Since that which is exchanged is of equal worth, the exchange follows the principle of just exchange and is, consequently, fundamentally just. In keeping with the argument of the transcendental exchange, human rights and human obligations do not fall out of the blue93, nor do they then compel us to recognize them reciprocally. Neither is it the case that they are valid for the mere reason that they comprise the basic consensus of liberal democracies, or that they prove to be the solution to the problems of pre-liberal polities. Rather, in a way that everyone should be able to approve they succeed in overcoming the conditio humana socialis mentioned earlier, that is, the possibility of being both the victim and the perpetrator. A second content of the original legal contract has thus been found: the law-constituting content, the qualified rule-based order, is now succeeded by a lawstandardising content. In its preliminary wording, the second principle of justice demands that, if threatened, the protection of life and limb be assured through a reciprocal abandonment of force and violence.
3.3.2 Freedom of Speech and Religion Actions is the name given to processes that are neither reflexive nor instinctive but voluntary in nature and dependent upon the capacity to reason and speak. Even were we to discover a non-human species capable of acting, it would still require the capacity to reason and speak. An assessment analogous to the first human right applies to this second (transcendental) anthropological definition. The capacity to reason and speak is, for the essentially practical purpose here, understood in the wider sense: that common interests are not merely given but that they are nurtured predominantly through reflection and by way of thinking and communicating with each other. This reflexive and communicative (and in the case of debates on core issues even discursive94) approach allows humans to sharpen their understanding of the goals of their desires as
89 90
Abreviat, limitat Cu claritate 91 invers 92 Care uita 93 Cad din senin

94
10
well as the means to their realization, but also of the corresponding opinions about themselves, the social and the natural world. Within the limits of the capacity to reason and speak, even religions and, in a different way, the media have a role to play. Objectives and means may turn out95 to diverge significantly from each other but since they presuppose the capacity to reason and speak, there is a transcendental interest of a higher order above them. Everyone has an interest to reason and to speak with one another so as to develop action-related opinions in a way that enables us to cultivate and pursue our interests. In order to do so, a fully developed capacity to reason and speak is apparently not necessary, though a minimum capacity undoubtedly is. The negative transcendental exchange that it requires further expands the abandonment of force and violence. The right to freedom of expression (including the freedom of conscience, science, religion, arts and media) is only made possible when everyone refrains from hindering 96 other peoples opinions (including their religious convictions). It is this right that enables the flourishing, if not the existence, of the intentional nature of the human capacity to act. In analogy to the integrity of life and limb, this state of affairs is best referred to as the protection of the capacity to reason and speak, and as a logical and communicative protection one can distinguish it from the common biological and physical integrity. The human right to freedom from the physical force and violence of others corresponds, once again, to the human obligation to refrain from using force on ones own part. From this renunciation a positive provision also arises, the logical and communicative integrity without which one would have no interest in the exchange. Finally, everyone obtains and gives equally so that the exchange is once again fundamentally just. Expounding transcendental interests by means of the life and limb example has been contested by advocates of Apels discourse theory on the grounds that priority should be given to another interest: that of understanding (Kettner 1997). However, this priority of interests can be refuted97 inasmuch as98 the capacity to act cannot dispense with99 the attribute of bodily100existence, speech or reason. The philosophical tradition quite rightly combines both designations, speaking of a zon logon echon or animal rationale (rational animal): human bodily existence is endowed with the capacity to speak, and the capacity to speak is, in turn, dependent upon the bodily existence of human beings. Since both are interlocked101 that is, human action is both bodily in nature and proceeds as language it does not make much sense to try to determine which feature is prior to which. If anything102, it is life and bodily existence that would be of primary concern since a poor capacity to speak can be made up and compensated for later, whereas a life once destroyed, remains irrevocably extinguished103.
95 96 97
impiedica Respinge, infirma 98 Deoarece, intrucat 99 A dispensa de

100 101 102
conex Daca ceva 103 stins
11
3.3.3 The Criterion of Freedom Rights The criterion is traced back to Kants The Doctrine of Right, to B in his Introduction to the Doctrine of Right (for an interpretation see Hffe 1999b, ch. 3) and to the section entitled There is only one innate right. Aimed against lawless freedom, it demands the greatest amount of freedom to act that complies with104 a universal law but is also compatible with the same amount of freedom for all others. This represents the extended second principle of justice, the principle of the greatest equal negative freedom: through the reciprocal abandonment of freedom rights, each subject acquires that same maximum amount of freedom to act which, according to the first principle of justice, is feasible with105 universally valid rules. This principle allows us to delineate106 the first group of human rights. They are defensive in nature, though not as understood by conventional state theory. They curtail107 private, not public violence, which does not yet exist in the original legal contract. Human beings themselves grant one another human rights and recognize each other as free and equal subjects. After all, they owe their status as legal subjects not to governments, courts, bureaucracies108, and not even to parliaments, but only to themselves. They mutually constitute one another as legal subjects, whereby109 author and addressee110 form the same basic unit. In keeping with the correlation between human rights and human obligations, humans grant one another freedom rights by reciprocally relinquishing 111wild freedom. Seen from a theoretical legitimatory perspective, a state is capable of no more than guaranteeing the rights to freedom (see ch. 4.3). The elementary conditions of the capacity to act can be further spelled out112. We thereby obtain a more or less comprehensive list, a catalogue of freedom rights. Only a portion of that list will be explicitly mentioned here namely113, those rights to freedom that, as far as property and the economy are concerned, play a dominant role in the globalisation process (see ch. 15). The criterion remains the second principle of justice: as far as the economic order is concerned, human rights especially disallow slavery, including serfdom114and forced labour. They allow one, conversely115, to obtain and use goods at ones own discretion, in other words: the right to private property. No precise property order can, however, be obtained from the concept of human rights. Nevertheless, as a condition of the capacity to act, the concept does demand that property be allowed and protected and that theft, robbery, and arbitrary dispossession without compensation be prohibited. The second and factual 116part of the property law, the prohibition of theft, can be explicated once more with the example of a Robin Hood who, in order to comply with117 the strict rule-based order of the law, assumes the role of legislator and establishes a law that is kind to the poor. To start with, he will have to recognise the first part of the property law: the right to property. He can then
104
105 106 107 108 109 110
FEZBIL, - , fezabili, -e, adj. (Fran uzism) Care se poate face; realizabil, posibil.
A schi a A reduce
BIROCRATSM s.n. 1. Tendin de rezolvare strict administrativ a problemelor publice, de rupere a lor de realitate; preocupare excesiv de latura formal a problemelor i lipsa de
interes pentru fondul lor.
Prin care Destinatari, adresa i 111 A renun a la, a abandona 112 A preciza, a formula 113 i anume 114 Iob gie, erbie 115 n schimb 116 real 117 A se conforma
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help the poor gain access to property, either directly or through better education, and raise taxes to finance a system of social security. Yet, since the law that he creates entails118 not power-based commands but social rules that apply to all, no matter whether rich or poor, he can tolerate neither theft nor robbery. Some of the rights elucidated in detail here are dependent on history and culture. Still, they do not constitute a valid endorsement 119 of a radical criticism of the Enlightenment (MacIntyre 1985, ch. 5) or a radical cultural relativism that encompasses even human rights, as advocated by Herskovits (1947) and Rorty (1993, 116). The assumption that rights apply to humans as such120 but that they are valid only within the realm of certain cultures may, on the face of it 121 , appear paradoxical. The incongruity 122 is dissolved 123 however, if the discourse 124 on culture-relative human rights is understood as an abbreviation for the fact that a universal human right can indeed have a specific culture-dependent area of application. For in the case of human rights one needs to distinguish between the descriptive conditions of application and the normative legal concept and, within the conditions of application, between a core that is valid independent of culture and the particularities that are culture-dependent. Culture-dependent human rights particularize universal human rights, namely the two basic freedoms of physical as well as logical and communicative integrity that, in turn, are to be applied culture-specifically. For instance, the freedom of the press presupposes, rather trivially125, a press, which, in turn, assumes the corresponding technical and social provisions. The protection of data presumes the existence of data files. There exists a cultureindependent superior right (Oberrecht) as well as precursors for both rights. The freedom of the press, for example, specifies something that has been in existence for a long time: a freedom of speech that includes the right to criticize rulers. Other cases are more difficult to assess 126 from a legitimatory perspective. The Western understanding of human dignity, for example, does not tolerate polygamy, because it violates, as polygyny127, the dignity of woman and, as polyandry128, that of men. In fact, an entirely fair and equal treatment transpires129 only in monogamy. Situations may exist, however, where the insistence on monogamy may curtail130 ones dignity even more, for example if divorcing a woman violates her self-respect more than accepting a second woman in the household would. Worse, the divorced woman may even see herself forced into prostitution (Bujo 1998, 39). Not insisting on monogamy does not necessarily lead to doubts about its status as a human right. Rather, a difficult weighing131 of goods aims to identify the lesser interference with human rights and reserves the freedom to demand the improved situations that occasion no curtailment132 of human dignity.
implic aprobare 120 Ca atare 121 La suprafa 122 Nepotrivire, desonan 123 anula 124 Expunere, tratat 125 TRIVIL, - adj. 1. (Liv.) Comun, de rnd, obi nuit; evident. 126 evalua 127 poligamia 128 POLIANDRE s. f. Form istoric de organizare a familiei (ntlnit ast zi numai la unele triburi primitive) n care o femeie poate s se c s toreasc n acela i timp cu mai mul i b rba i 129 A TRANSP RE transpr intranz. 1) A se vedea foarte vag (din cauza dep rt rii, a ntunericului etc.). 2) A ap rea printre alte elemente; a se ntrez ri; a se ntrevedea. 130 A diminua 131 cnt rire 132 reducere
119 118
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3.4 POSITIVE RIGHTS TO FREEDOM: SOCIAL RIGHTS Renouncing violent force alone does not make possible the capacity to act. In order to live and to develop the capacity to speak and reason, positive provisions are required, which consist partly of goods and services, partly of offices and opportunities. Due to their social nature, people are capable of, and in need of, these positive provisions. As a demarcation from the capacity to endanger one another, it is more accurately referred to as a positive (or cooperative) social nature and is distinct from a destructive (or adversarial, violent) social nature. Both the quantity and quality of the testimony in favor of a positive social nature is overwhelming133: without parental cooperation, one is neither conceived nor born. As a newborn, one needs considerable help and cannot survive without the help of ones parents. This remains the case long after an animal would have learned to cater to134 its needs on its own. As one grows up to become an individual responsible for oneself, one settles down within a particular society and its respective traditions and values. Yet, one also needs to be recognized by ones equals, recognition the latter of which is so precious a good that it has to be fought for throughout ones life. Alleviating135 the burden of work through the division of labor is also part of the social nature, as well as friendship and love, as elements, leading to higher levels of human self-realization. Last but not least, in old age, one is usually once again in need of help and becomes dependent on the young. Some treat the demands aimed at this multifaceted social nature rather generously. Without any prior conceptual demarcation, they formulate extensive lists of social rights from obligations of solidarity and philanthropy or even a subsequent assessment136 of their legitimatory basis. This lack of a proper basis cannot be solved by the frequent, even inflationary appeal to social justice in politics. For unlike other concepts of justice such as justice in exchange, distributive justice, compensatory justice, or procedural justice social justice is a rather recent term that has yet to develop a convincing justification. Due to its origin in Christian social ethics, the term runs the risk anyhow137 of being stretched too far towards some notion of Christian charity, or at least towards a solidarity inspired by Christian thought. Even the maxim of an equal right to communicative freedom that has recently been put forward is nothing more than a declaration of intent in political philosophy that still requires a legalethical justification. A similar assessment applies to Habermas who, in Between Facts and Norms (ch. III 3), speaks of communicative freedom and attaches to it an obligation, but fails to specify either its grounds or its scope. The yet unspecified justification for social rights can be derived from their significance for the capacity to act. For this very reason social rights follow almost seamlessly138 upon negative freedom rights (I hereby proceed beyond an earlier attempt; see Hffe 1996, ch. 9). Social rights have, as far as they are relevant to the function of freedom, no lesser importance from a human rights perspective than negative freedom rights. They appear to have priority because they are relevant even to subjects resistant to cooperation, such as the austere139 hermit 140. For even those who reject all forms of cooperation want to be safe from the force and violence of others. Negative
133 134
cople itor A satisface 135 A eradica 136 evaluare 137 n orice caz 138 perfect 139 AUSTR adj. 1. aspru, sever, sobru, spartan. 140 pustnic
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freedom rights are, as such141, indifferent to cooperation; positive freedom rights, by contrast, are dependent on cooperation. However, a behavior resistant to cooperation is available only to those who have already benefited for some time from elementary social rights, such as the right to food, clothing and education. If people are to have dignity within a general framework of social rights, they must be legitimized as part of the original legal contract, before the political community, the polity, is created. Once more, legal subjects have to grant these rights to one another; the community accepts responsibility only secondarily and subsidiarily. Of course, the label positive freedom rights already indicates that they are fundamentally different from negative freedom rights in another respect: first, what matters is no longer negative provisions or giving something up but, rather, positive provisions that make food, clothing, shelter, health and education available, to mention but a few particulars. Of course, peoples desires extend beyond these provisions, including recognition and protection. Yet, these are difficult to satisfy through enforceable rights. As rights of provision, positive freedom rights are subjected to a problem that defensive rights do not have: scarcity142. Contrarily to what is said by Rawls (1971, 22) and Hume (to whom Rawls refers), scarcity is not a condition of application of justice. This first disparity143 leads to a second: while negative freedom rights can be claimed in all circumstances, even in situations of scarcity, this is not possible for social rights. With the exception of self-defense, it is always the case that those who kill violate a human right. By contrast, letting somebody starve or freeze to death because the necessary food or clothing cannot be provided does not necessarily constitute a violation of a human right. The second difference indicates a third. Positive provisions are essentially comparative in nature: they exist more-or-less, the further specification of which has to be guided by a societys necessities and its available resources. Social rights are dependent on culture as well as resources. In cold geographical areas, for instance, the need for warm clothing and shelter is greater than in warm areas. Similarly, what human rights may stipulate as a requirement for physically or intellectually demanding work for instance the the right to rest and leisure, including [. . .] periodic holidays with pay as stipulated in Article 24 of the Universal Declaration of Human Rights is hardly called for in a line of work that already contains elements of rest and leisure. In the same vein 144, in cultures that lack a written language, or in those where one has just appeared, the requirement for writing skills is non-existent or minimal, so that alphabetization cannot constitute a cultureindependent metric that would indicate the extent145 to which human rights are recognized. In highly specialized and complex societies, by contrast, much more than the basic writing and reading skills are required: instead, a long and specialized education is indispensable for adequate opportunities in life. All of these areas from food and clothing to health, work and education are characterized by a continuum146 that is, at one end, delimited by plain survival and, at the other, by a thoroughly good and enjoyable life. Due to this relative nature there are plenty of shades of grey in between, where the transition from (mere) existence to the good life is rather fluid. Social rights are therefore not as well differentiated as the rights related to the use of violent force. Positive rights to freedom
Ca atare deficit 143 DISPARITTE s. f. (Livr.) Lips de leg tur , de armonie, de potrivire ntre elemente. 144 n aceea i ordine de idei 145 m sura 146 CONTNUUM s. n. 1. (Fil.) n filozofia clasic , realitatea material considerat ca un tot, p r ile c ruia, unite ntre ele f r solu ie de continuitate, au o limit unic i comun .
142
141
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leave some scope 147 and leeway 148 , which polities may fill out to varying degrees as partial substantiation of the right to be different (see chs. 4.4 and 10.1). Some polities may settle for provisions that allow for nothing more than mere existence, while others embrace much more of the good life. Justice does not set a clear limit, but opening up too much towards the good life means that the area of that which is owed is gradually left behind in favor of solidarity or even benevolence and philanthropy. What is more, some facets of the social are completely beyond the reach of moral claims: no one has a claim to friendship, even under a generous interpretation of the meaning of social morality. There is no such thing as an owed obligation to be someones friend, and neither does the community have either the duty to assign a friend or the right to redistribute from those that are rich in friends to those that lack them. As indicated earlier, in certain societal circumstances the right to education can have the rank of a human right. Also, where the means to subsistence149 have to be secured through labor, which also determines the degree of self-esteem and recognition and contributes to ones personal development, a right to work is not farfetched150. However, it may collide with a negative freedom right, that of the freedom to choose ones profession and career. There also remains the problem of resource scarcity: jobs can become scarce151 for cyclical or even structural reasons. Last but not least there are also personal preconditions, such as qualification requirements and the willingness to work and cooperate. Personal preconditions are significant in other areas as well: talents and effort are important for education, just as the willingness to save (i.e. to refrain from consumption) may be for material resources. Which leads to a fourth distinction: positive rights to freedom are more than just pipedreams or cheerful promises, but they are less than enforceable individual rights. They are more akin 152 to programmatic goals, the implementation of which in societal reality requires some complex assessments153. In addition, these may be highly contested in the political realm either because of the considerable interpretative scope of social rights or because of different assessments that are made about the economic laws and their respective constraints (see chs. 3.4 and 3.6). There is a fifth particularity: the provisions mentioned do not have to be provided by all human beings. As soon as one individual refuses to refrain from force and violence against another, life and limb of the latter are eo ipso put into question. By no means must the renouncement of violence be confined154 to friends and family. When someone refuses to provide the mentioned provisions, by contrast, others can usually contribute. It does not follow, however, that, as is sometimes feared, social rights are obscure or that they represent nothing more than rhetorical manifest-rights. Since the provisions do not have to be made by everyone, the follow-up question arises as to who should bear the obligation to make them. This can be answered, as the sixth distinction, by reference to natural providers (natrliche Leistungserbringer). For only if one helps the needy without being to blame for their misery does one act out of charity. If one is partially to blame for the misery, however, one bears a responsibility to provide compensatory (corrective) justice. Parents, for instance, are primarily responsible for their children because they brought them into this world as needy beings and without their consent (for further aspects of corrective justice, see ch. 5).
Sfer de ac iune Marj de manevr 149 SUBZISTN s. f. Faptul de a subzista; (concr.) cea ce serve te la asigurarea existen ei materiale; hran . 150 exagerat 151 deficit 152 nrudit 153 apreciere 154 limitat
148 147
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Despite their many differences, positive and negative freedom rights agree with respect to their legitimating pattern, the transcendental exchange. Certain provisions are so elementary that they are indispensable, partly for bare survival, partly for ones capacity to act. As the provisions are supplied asymmetrically from those able to help to those that are in need of help, the principle of reciprocity seems to be missing. This changes, however, once phase-delays are taken into account: children can make up for155 the help they receive through the help they afford, at the appropriate time, to their then older and possibly frail156 parents. The fact that some human beings, such as the mentally incapacitated, are not capable of compensating in such a way will be addressed at a later stage (ch. 3.4, also, 4.4). Although positive freedom rights rely on exchange theory, it is itself an insufficient legitimation. Even as far as legitimation is concerned, positive freedom rights turn out to be more complex than negative rights, a fact that helps to elucidate the lack of proper justification. The provisions that are to be exchanged have a prerequisite157 that is due neither to an exchange nor to any other human provision. The ultimate origin of all labor that in itself is no product of any prior effort is simply given: our planet, together with its natural resources, plants, animals, sky, soil and water. Now, both territory and resources are scarce, which results in a primordial responsibility for distribution that calls for a third type of justice: justice in exchange and compensatory justice is now supplemented by distributive justice. In passing, let it be noted that for a just property order, all three types of justice have a role to play and that justice in exchange entails158 both negative and positive freedom. All theories of property are therefore inadmissibly simplistic if they fail to consider at least four principles of justice: the negative and the positive right to property, the obligation to compensate for past wrongs, and a primordial distributive justice. The third law-standardising principle of justice, the principle of comparative positive freedom, evades a simple definition. It reads: (a) Through reciprocal positive provisions each legal subject is to obtain an elementary positive capacity to act, which can be presented as certain positive rights to freedom. (b) In so doing, the rule-based order as the first principle of justice is acknowledged: only those positive rights to freedom are just that can be realized according to universally valid rules. (c) The second principle has priority over the third: only those positive rights to freedom are just that are compatible with the principle of the greatest equal negative liberty. (d) The provisions of positive rights to freedom are dependent upon culture and resources and are comparative in nature. (e) The third principle of justice is not substantiated via a justification that is exclusively based either on exchange, corrective justice, or distributive justice. For the positive freedom rights too, the factual159 responsibility lies with the individuals affected, the legal subjects, while the community bears responsibility only in a subsidiary160 manner. The community will require those primarily responsible, the natural providers, to supply necessary provisions and only when this is not possible will the community itself provide those necessities. If, however, the polity becomes immediately active, then the rights and duties of both those directly responsible and those not responsible, are violated. Because of the very fact that they are not
155 156
compensa U uratic, firav 157 premis 158 Atrage dup sine 159 real 160 complementar
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responsible, the latter are in no way obliged to adhere to principles of justice. The question as to whether collective social rights, too, can exist will be dealt with later (ch. 14.2).
3.5 PROTO-JUSTICE The law is not a natural phenomenon but has to be created. This happens, so the original legal contract shows, through the mutual advantage of which everyone has made use when exercising their capacity to act. The fact that the law is one form of the shared life that everyone reasonably desires can undoubtedly be considered a justification. Before a universal moral precept of the rule of law can be considered justified, however, two further questions need to be addressed: first, who will be part of the group of equals, that is of those whose consent and advantage matters; and second, why should there be a capacity to act in coexistence (with this dual question I go beyond previous deliberations). The first question deals with the important matter of who should have the right to become a partner in the legal contract. Since the original legal contract has to legitimize the law from scratch, no pre-selection must take place that would allow some people but disallow others. Rather, everyone is to be accepted provided two conditions relevant to the original legal contract are met: the capacity to act and a threat to it from others. It is also possible to directly refer to the legal act itself, in which case everyone who is capable and in need of a legal act matters. So, it follows, one has legal capacity if one is able to provide the negative and positive rights to freedom, and, one has legal need if one is dependent on the corresponding provisions made by others. The question as to whom this twin condition should apply is relevant in two ways: do nonhuman animals matter? Furthermore, do all human beings matter? According to Rortys (1993, 116) radical cultural relativism, humans and animals are not distinct from each other in principle but solely on the grounds of contingent161 cultural facts. In this view, even animals are to be included as contractual parties; and where this is not the case, it would be necessary to claim that a type of racism, speciesism, is being committed. Truthfully, however, as far as both the mutual renunciations of force and violence as well as the reciprocal provisions are concerned, there is more than a mere cultural difference. An animal may become a victim of violence and may be able to either supply or deny certain provisions. However, refraining from violence and positive provisions are not products of the animals capacity to act or to enter a legal transaction. Rather, they occur either instinctively, through training, because of an emotional attachment, or because of a combination of these factors. For all we currently know, animals lack the capacity to be the explicit initiators of their own actions, a trait that would allow us to consider them accountable. This fundamental accountability, however, is where the legally relevant capacity to act, legalpractical subjectivity, rests. This accountability162 is at best rudimentary163 in animals. One can be subjected to rules only if one is accountable and can be held responsible for their violation, both to oneself, in the form of remorse164 and developed (i.e. not merely rudimentary) feelings of shame and guilt, and to others in the form of blame and, possibly, contempt 165 and retribution166. Then again, if animals are found that indeed claim more than a merely rudimentary accountability, then they ought, of course, to be considered legal subjects. When significant
161 162
Condi ionat, eventual, posibil, accidental responsabilitate 163 nedezvoltat 164 remu care 165 dispre 166 pedeaps
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elements of accountability are present, it is advisable to consider granting them some rudimentary legal status. What is by all means inadmissible, however, is a species-egoism, one defined according to purely biological attributes. It is the legally relevant attribute of accountability that matters, and not simply the attributes of a biological species. From a lack of accountability does not follow, however, that animals are outside of the law and at the mercy of a legitimate human arbitrariness. In fact, justice-based arguments even suggest that the protection of animals is morally required (see Hffe 42000, ch. 13). The criterion of accountability can be challenged on the grounds that it is unduly167 harsh 168 because it also excludes infants and the mentally incapacitated from the group of legal subjects. However, children lack accountability only temporarily, not indefinitely, which is accounted for in the phase-delayed exchange mentioned earlier. The assessment is different for the mentally incapacitated who will, even with the greatest amount of help, never become accountable. If the fundamental lack of accountability had the final say, then the disabled would still be no more deprived of legal protection than animals. However, the difference between animals and humans would then not have been taken into account, and the legal protection of the disabled would have no more significance than that granted to animals. It seems quite rightly implausible, if not morally repugnant169, to us that the disabled receive no better protection than animals. The reason, however, is not to be found in some sort of speciesbased arrogance, as Singer (1995, ch. 3) expeditiously170 claims. The notion of compensatory justice that was appealed to earlier already suggested an argument that operates independently of speciesegoism: because children are born into this world with our full knowledge of their neediness171 and without their consent172, they hold a claim for assistance that is usually temporary but which may be prolonged in the case of the disabled. Should the assistance exceed the abilities of the parents then the duty of solidarity comes into force for the larger group. A violation of the duty to help the mentally disabled may be forgivable in cases of extreme scarcity, but it would remain a violation nonetheless of not only a meritorious supererogation173, compassion or philanthropy, but against the morality we owe to one another and, as such174, against justice. Even in the normal case of persons who are accountable, accountability as such is not a sufficient precondition. This follows because the capacity has not only to be formed, but must also be realized in practical action. The realization, on the other hand, cannot be achieved by others in ones stead. The legal subject in question must do it: a genuinely personal provision is required. Mental disability aside, two types of obstacles arise that correspond to two stages of accountability: on the one hand, accountability can exist in principle but may be realizable only in part due to the effects of anger, drunkenness or drugs. In extreme cases it may not be realizable at all. As a counterweight to such subject-internal obstacles, some well-known character dispositions are required: self-control, or better, prudence, can overcome the internal, passion-fuelled175 threats to ones accountability. The subject-internal impediments exist within the framework of already established legal relations, and differ from the task of realizing accountability even where the original constitution of
167 168
excesiv aspru 169 dezgust tor 170 Cu promptitudine 171 s r cie 172 consim mnt
173 174 175
Ca atare Alimentat cu pasiune
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legal relations is most essential. The personal provision required in the original contract is therefore more fundamental than self-control or prudence, and even more fundamental than the (mutual) provisions in the original legal contract; it constitutes an advance provision. The advance provision, however, is jeopardized176 by social obstacles that are external to the subject: by the possibility that others might refuse to acknowledge someone as a legal subject. In such cases, one asserts177 oneself as a potential legal subject by in turn opposing that opposition. It is also possible, of course, to capitulate to that opposition, which is a likely scenario whenever human beings would otherwise endanger their own lives, be it a life of bare178 survival or the pleasant and good life. If the intention is to assert179 oneself even in circumstances such as these, a much more stringent self-control is required: one has to master not only ones passions but also ones natural interest in life, including the good and pleasant life. The established theories of law and justice ignore the need for such an advance provision. One exception is Kant whose remark in The Doctrine of Right (VI 236/392; on the elementary duties in Roman law see ch. 7.2) is, nonetheless180, rather short, if not cryptic181. Since even scholars with Kantian leanings 182 (see, for example, Kersting 1993, ch. A.V; Pippin 1999) have not yet sufficiently elucidated its systematic content, a detour into Kantian thought that admittedly183 goes beyond mere textual exegesis184 seems here in order. Already in early modernity the idea of self-assertion 185 played a prominent role. It is, however, usually defined in empirical and pragmatic terms: content-wise 186 as the assertion of oneself as a being, that is as physical self-preservation, and, in respect of the type of claim, as the (natural) law (for example Hobbes, Leviathan, ch. 14; Pufendorf, On the Law of Nature and Nations, 1672, 7). Kant sets himself apart from both sides. As part of an original interpretation of the (pseudo-)Ulpian legal maxim of honeste vive (be a lawful187 person), he introduces a new type of self-assertion that is no longer physical but legalmoral in nature. This is not to be understood as a natural law but as a legalmoral obligation, so that the second question, which is about the capacity to act in coexistence, has an impact on the first, which asks who should be an equal (for an interpretation of all three legal maxims, see also ch. 7.2). The legal honorableness188 (honestas iuridica) of the honeste vive is usually understood as legal integrity: legally, one has done nothing wrong. In contrast to this, Kant points to a more profound element, one that has the rank of an original legal honorableness. Not content with the mere abandonment of violations against the law, it demands more than conformity with the law or juridical legality. This extra facet, however, is not to be confused with the move from (juridical) legality to (juridical) morality usually known from Kants work. Rather, a third aspect, which is usually not recognized in Kants moral philosophy and thus easily overlooked 189 by Kantian scholars, is what is of paramount importance.
primejduit afirm 178 simplu 179 A sus ine 180 Cu toate acestea 181 ascuns 182 tendin e 183 indiscutabil 184 EXEGZ , exegeze, s. f. Interpretare, comentare, explicare istoric 185 autoafirmare 186 Con iunt n elept 187 legiuit 188 onorabilitate 189 Trecut cu vederea
177 176
i filologic a unui text literar, religios, juridic.
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In a primordial sense, one is legally honorable if one constitutes oneself as a legal subject in the first place. To do so one has to reject any attempt by others to degrade one to a mere means, that is to something that others manipulate as they see fit. One has to object to such degradation and reification 190 by others not only verbally but also actively. An objection alone, however, is insufficient, for subjects too can reify 191 and degrade themselves by denying that they are the authors of their own actions. In order to become a legal subject, one not only needs to be recognized by others as such, but also by oneself. One needs to stand by ones legally good (lawful) as well as bad (unlawful) actions to be able to assign accountability to oneself not only verbally but also through the way one leads ones life. Only if one accepts the fundamental alternative to act either against or in accordance with the law, does one fulfill the necessary condition for becoming a legal subject who can be held legally responsible for everything one does. Hence, the original legal contract requires two advance provisions: an original legal honorableness that is directed towards others and an equally original accountability that is directed towards oneself as legal subject. Both provisions taken together constitute the original legal selfassertion. Even Kant acknowledged the significance of legal honorableness rather late in his work. In his Preparations for the Doctrine of Virtue (XXIII 386) and in his lectures on the metaphysics of morals in the winter of 1793/94 (postscript Vigilantius) hence, only three years before the publication of The Doctrine of Right and nearly a decade after the Grounding for the Metaphysics of Morals he still considers the honeste vive 192 maxim to constitute the principle of morals that contains all ethical duties and is, consequently, separate from legal duties (XXVII 527). This categorization not to legal ethics but to virtue ethics is later corrected in The Doctrine of Right, though not with a complete reversal but rather with a differentiation: here, Kant distinguished the honestas interna (VI 420/545) from the honestas iuridica and assigned virtue ethics to the former and legal ethics to the latter (VI 236/392). According to the first, ethical honorableness, one must as a person not act against humanity or be reified into a mere means; in contrast, according to the second, legal honorableness, self-degradation and reification are prohibited only in relation to others (VI 236/392). Although Kant does not give any examples of a legally relevant self-reification, it can be assumed that the original legal honorableness is violated if one resigns193 to a state of lawlessness194 such as slavery and serfdom195. The original willingness to be accountable, by contrast, is violated if one surrenders196 to an attitude of passivity, which corresponds to a desire for an all-encompassing welfare and reminds us of the all victims, no perpetrators idiom, or if one severely constrains ones capacity to act through addiction197. Slavery is, from the perspective of honorableness, objectionable not due to some interest (one does not want to become a slave, a serf 198or an addict) but because of a duty (one must not allow oneself to be made a slave). This is, of course, a peculiar, morally unusual duty. The usual legal obligations are both external and are duties towards others. Legal self-assertion, in turn, is
REIFICRE s.f. (Fil.) Concretizare, materializare (a unei idei). Proces prin care rela iile sociale mbrac forma unor rela ii obiectuale, omul nsu i devenind din agent con tient al proceselor sociale simplu obiect, lucru, instrument al acestora. 191 Concretiza, materializa 192 A tr i cinstit 193 A renun a la 194 F r delege, anarhie 195 erbie, iob gie 196 A se preda, capitula 197 dependen 198 erb
190
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internally required and is also a duty to oneself, so it appears to belong more in virtue ethics. However, it actually belongs in the law, but not as a part of it, but as a law-constituting advance provision. Only for that reason can it unsystematically be counted among the usual legal duties, a singular phenomenon that exists both against itself and as an inner duty. Ones duty to recognize oneself as a legal subject constitutes the beginning of legal ethics in two respects: in the sense of a legal honorableness against others and in the sense of original accountability to oneself. This dual self-recognition in itself, however, is not the end of the story. Legal subjectivity needs to be supplemented by subjectivity between legal subjects; original selfrecognition needs to be supplemented by the original recognition of others. Everyone must recognize everyone else as a contractual partner, a subject in the original contract and who gives consent and allows for reciprocal provisions. What is more, because everyone has to provide equally, reciprocity is once more essential. Without the additional recognition by others, ones self-recognition stumbles upon the others resistance, which leads to an incongruous alternative: one can either stay true to ones legal self-assertion and refuse to be degraded to a mere means and, in the case of fierce resistance, risk ones own life; or one opts for life and does so at the cost of ones legal self-assertion. In the latter case, one directly renounces ones status as a legal subject (of equal status), whereas in the former this happens indirectly, for those who lose their lives in the process of self-assertion were only potential legal subjects. In practice, they cease to be legal subjects, or do not enter into a life of equality at all. However, subjectivity between legal subjects alone is just as insufficient. Those who are only recognized by others as legal subjects, without recognizing themselves as such, undoubtedly have rights, but are not accountable initiators of their actions (Taten) nor culpable perpetrators of their wrongs (Untaten), which is part of what being a legal subject is. Kant at least hints at recognition by others. According to his (once again original) interpretation of the Ulpian maxim neminem laede, no one must be harmed, even if this requires giving up relationships with everyone else (The Doctrine of Right, VI 236/392). The reference to recognition by others is discernible in so far as Kant here interprets unlawfulness as violating the law or impeding freedom according to universal laws ( D, VI 231/387). Along with the strict prohibition of any wrongdoing, Kant also demands strict adherence to the law. Yet, the law is recognized only where everyones liberty is treated according to universal laws, as equal legal subjects. The question might be asked whether the two advance provisions fulfill, or instead abrogate our criterion of the distributivecollective advantage. Legal self-assertion is certainly advantageous and those who refuse it harm themselves. Yet, advantage and harm are not measured according to the usual pragmaticempirical criterion. The question of why one should be lawful and be dutybound to recognize both oneself and others is not adequately answered if this is done independently of legal morality by referring only to pragmaticempirical advantages. It is true that those who legally assert themselves are better off, yet it is not only their situations that are improved. Rather, the benefit consists in a better self, an improvement in their ontological status: out of a natural self emerges in addition a legalmoral self. The in addition is important here because one can remain ones natural self, which is attached to mere survival and, beyond that, to a secure and good life. However, one pursues such interests neither purely instinctively nor according to pleasant or unpleasant sentiments but as accountable subjects in opposition to other accountable subjects while recognizing their accountability. The as is precisely what constitutes the legally decisive capacity to act. The answer to the first question is: apart from the empiricalpractical advantages, the capacity to act must subsist in coexistence because both people and their coexistence attain the ontologically higher rank of accountability.
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With both advance provisions, the original recognition by oneself and the one provided by others, we have identified the final two conditions of the capacity to act in social perspective. They have the status of an additional, factually prior principle of justice, a principle of proto-justice through which the natural human being becomes a person: All members of the species of accountable beings recognize each other as legal subjects, through an original recognition by oneself as well as by others. Since both advance provisions are moral in nature, they challenge the attempt to legitimise the law through merely practical and empirical arguments. A further challenge is directed at the contemporary verdict against metaphysics. Let us limit the scope here to legal self-assertion: it is based on a conflict that is immanent to the individual and, as such, prior and external to the social. The self that is subjected to a desire for survival competes with the self that insists on its purposeful character. The natural self and legalmoral self oppose one another. The legalmoral self is obtained by qualifying the natural self. In so doing one enters a dimension beyond natural nature, one which is literally metaphysical. Of course, what matters is not a theoretical but rather a twofold practical metaphysics: on the one hand, what matters are conditions not of understanding (Erkenntnis) but of praxis, and more specifically: of the law. On the other hand, the condition does not simply exist but is brought into the world by a double provision. When everyone treats themselves and everyone else merely as means and no one practices legal recognition of oneself and by others, there is no law and, for lack of law, no legal metaphysics either. Everyone who wants to be a legal subject in the emphatic (or modestly emphatic) sense has to make these provisions. For that reason Kants (IV, 389/520) assertion that one must have metaphysics is provocative but nonetheless conceivable. For it does not primarily depend on a (contested) theoretical position of understanding but on a legalmoral advance provision. Only secondarily and subsidiarily does Kant claim that the provision is conceivable only as metaphysics and that it fulfils the epistemological prerequisite, the synthetic a priori. Even this claim, however, is not entirely implausible. As a condition that is prior to even the original legal contract itself, it does in fact resemble an a priori. Also, should it seem impossible to deduce the condition from either the idea of the capacity to act or from the coexistence of accountable beings, nevertheless its synthetic character can hardly be disputed. One might with (ostensible) modesty wish to do without the metaphysical demand, but the legalmoral prerequisite for the justification of the law cannot be relinquished. A first list of principles of justice. The principle of proto-justice: All members of the species of accountable beings recognize each other as legal subjects, through an original recognition by oneself as well as by others. The first, law-constituting principle, the universal precept of the rule of law: As embodiment of rules that are strictly applicable and in every respect, the law opposes personal arbitrariness and personal force and violence and, for that very reason, is to reign among all human beings. The second, law-standardizing principle, the principle of the greatest equal freedom: Through the reciprocal abandonment of freedom rights, each subject acquires that same maximum amount of freedom to act which, according to the first principle of justice, is feasible with universally valid rules. Third, again law-standardising principle, the principle of comparative positive freedom: (a) Through reciprocal positive provisions each legal subject is to obtain an elementary positive capacity to act, which can be presented as certain positive rights to freedom. (b) In so doing, the rule-based order as the first principle of justice is recognized: only those positive rights to freedom are just that can be realized according to universally valid rules. (c) The second principle has priority over the third: only those positive rights to freedom are just that are compatible with the principle of the greatest equal negative liberty. (d) The provisions of positive rights to freedom are dependent on culture and resources and are comparative in nature.
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(e) The third principle of justice is not substantiated via a justification that is exclusively based either on exchange, or on corrective justice, or on distributive justice. (Four additional principles of justice are drawn out in chs. 4.1, 4.2, 4.3 and 5.2.)
3.6 SOLIDARITY The morality that applies to life with and against each other, social morality, is not encompassed by justice alone. Rather, the morality of human charity requires us to add the spice of love to the mixture of justice and, out of compassion for someone elses hardship, to be benevolent, helpful, even generous. Benevolence however, is not owed. As a meritorious supplement, it does belong to the polity, of course, for it contributes to the latters well-being (see ch. 7.5). Yet, being a purely voluntary provision, it cannot be imposed. Assessing solidarity, on the other hand, is more difficult. Akin to owed morality (justice) as well as voluntary morality (charity), its normative halfway position leaves political legitimation at a loss: its kinship to the owed morality assigns it a legitimate place within the realm of the authority to compel, which is, however, contested because of its kinship with voluntary morality. This concept must consequently be more clearly drawn out (see Scheler 1998, 106, 114, 135; Scheler 1973, part II; Hartmann 1967, 293, 314, 332; more recently Bayertz 1999; Hondrich and Koch-Arzberger 1992; Isensee 1998; Rorty 1989, ch. 9). The concept of solidarity, nowadays a rather inflated term, represented originally, in Roman law, a particular form of liability, the obligatio in solidum: each member of a community, usually a family, bore the sum of all existing liabilities and, vice versa, the community bore the liabilities of each individual. Hence, solidarity occurred in both directions: it offered help to the community on the part of the individual and to the individual on part of the community. The related motto one for all, all for one can be found in an article of 1773 in the Encyclopdie. Until today the term joint obligation (Solidarobligation) signifies the unlimited liability of every debtor for the total debt, which expires for all if it is paid by one. The strict interpretation of the concept of debt is extended to non-legal affairs only very late, and not before the end of the eighteenth century. The conceptual core however, remains the same: solidarity denotes (1) a liability, in the sense of a reciprocal obligation to vouch for one another. The obligation applies (2) to situations of danger and emergencies and (3) within groups that may be closely tied together either involuntarily (as in the case of siblings), freely (members of an excursion), or due to a chance happening. Communities of solidarity are communities of danger and emergency, to which the proverb we are all in the same boat applies. Their members develop (4) emotional relations to one another the strength of which increases with the empathetic nature of the community of fate. In communities of interest, such as insurance clubs and professional associations, they are insignificant by nature. With these four elements alone, however, solidarity remains rather undetermined, because it is not actually called for in all types of emergencies. If the suffering is caused by others, then those others are obliged to assist for reasons of justice alone. If the suffering is self-inflicted, then help is required by charity. Solidarity, in turn, is required whenever suffering is neither self-inflicted nor caused by others, when one must speak of fate. If, for example, a groups situation has (temporarily or indefinitely) changed to such an extent that the normal human capacity to provide for oneself is
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exceeded, then all sit in the same boat of fate, and the reciprocal help characteristic of emergency situations, namely solidarity, is what is called for. Based on the type of fate that is mutually shared, it is possible to distinguish three types of solidarity: (1) Cooperative solidarity aims to as a group overcome individual risks, even though each risk is predictable, because only the type of risk (illness, accident, unemployment) is predictable, and not who and how strongly each individual is affected. A collective solution is even more necessary when the risk to an individual also represents a threat to the community, as is the case with epidemics. (2) An antagonistic solidarity pursues common interests against competing communities, such as defending against enemies or self-assertion vis--vis adversaries. (3) Contingent solidarity helps deal with unforeseeable but collective misfortunes, such as natural catastrophes. The model for the first type of solidarity is a system of social security; for the second it is a combat unit against enemy groups; and for the third it is a community of fate that forms ad hoc and that dissolves once the disaster is over. As help in reciprocity, solidarity means a brotherhood or sisterhood that does not follow an asymmetric pattern according to which the older siblings help the younger ones. It is true that help may turn out to be of a different character: parents, for example, have other responsibilities besides children and these are not necessarily carried out simultaneously. Some may be impacted more than others, and some may, luckily, not be affected at all. Despite differences in content, phase-delays and contingent circumstances, the primary pattern is nonetheless one of symmetry and reciprocity among equals. The underlying idea of mutual help therefore raises concerns about the common usage of the term solidarity in actual life, where it is applied to situations where the strong have to stand in for the weak without themselves ever benefiting from any reciprocal assistance. In these instances solidarity is stretched or even overstretched, taking on the meaning of charity. The force of the obligation is weakened when the concept is extended beyond a mere legal obligation, even when the conceptual extension is, in fact, resisted and a reciprocal character maintained. There is scope for interpretation and discretion as to the reach of that expansion. There are also certain conventions that determine the extent to which provisions of solidarity are still required. As to the type of obligation, often nothing more than a moral or political obligation remains: mutual assistance may be enforced through informal sanctions such as reproaches or condemnations, but usually lacks legal enforceability. Only if, despite this weakening of the concept, its central meaning (i.e. mutual assistance within a community of fate) is maintained does solidarity rid itself of being a convenient but vague and overly malleable principle. It represents a moral attitude that falls between voluntary charity and a strictly owed justice: as with justice, reciprocity is what matters, but it is, in contrast to justice, not a claim that is owed all around. Since solidarity is not strictly owed, it is, similar to charity, unilateral help that is offered without expecting it to be reciprocated even if such a need should arise. Assistance given out of charity is a gift, an altruistic act. Assistance given out of solidarity follows the demands of reciprocity, which allows for a benefit to be received in return: a provision is made in exchange for a return provision of which it is not yet known whether it will ever be due. The institution of legal obligation has both advantages and disadvantages which are rather obvious and these remain once the interpretation of the concept is extended. An advantage constitutes the fact that the obligation is borne by many, which allows both the debtors and the creditors to incur risks that would otherwise be too hazardous. The disadvantage is that it can thereby consist of nothing more than a pro forma reciprocity: if it is always the same members that become liable and have to stand by the same other members, then solidaritys normative core, reciprocity, vanishes. In the case of the weakened obligation, it is supplemented by the danger that, firstly, the effort that is required through solidarity depends on the needs and capabilities of those affected as well as the particular circumstances; and that, secondly, in making use of the
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interpretative flexibility the debtor often demands too much and the creditor is not willing to give enough. And even more often, solidarity is demanded, but not offered in return. If necessary, the mere verbal, euphemistical moral assistance is preferred to the actual effort. In a case of emergency, when the expected return provision turns out to be rather high, prevarications are especially likely to occur: solidarity is abandoned even though it provided benefits in the past. The danger of free-riding on a community increases with a decline of both the impact of the counter measures and informal sanctions as well as the emotional attachment to it. Within a family or as part of a friendship one can count on solidarity much more than in a state or as part of overall humanity. One can generally expect it to occur more in personal than in anonymous relations, and again, more in relatively static than in modern, dynamic societies. As Scheler (1960, 516) rightly says, no solidarity whatsoever is found at the social level of the masses. Earlier communities of solidarity such as guilds thwarted the menace of free-riding by establishing clear rules on rights and duties and by imposing sanctions in cases of transgressions. For a modern society to be able to remain a community of solidarity, the solidarity among aliens (Brunkhorst 1997) must, despite its size, complexity and anonymity, develop the elements of both rules and sanctions. In this sense, social security schemes go back to the original legal meaning of solidarity: their claims are enforceable, the contributions are obligatory, and supplements to insufficient payments can be required. Yet, the new anonymous community of solidarity has a flaw in the weave: although everything human is threatened by pleonexia, by bursting covetousness, the traditional communities of solidarity, specific and easily overlooked as they are, manage the situation without major problems. The objective worry for the needy and the weak, corresponds to a subjective attitude, an ethos of reciprocal consideration and control, which confronts both sides of the pleonexia: the refusal to grant solidarity as well as its misuse and extensive utilization. In so doing, the ethos provides a guarantee for its existence. However, in the modern, abstract and impersonal community of solidarity, those counter forces of pleonexia are lost. A maximization strategy proliferates that is characteristic of private goods and the market, and it does so not out of malice but systemically. For instance, in the health system all participants doctors, hospitals, and the vested industry strive for their personal advantage. The result is clear: where pleonexia is allowed to proliferate, flaws in rationality and incentives to defect emerge that overwhelm the financial structure. Without being overly dramatic one could say that, although they are not acting in concert, all sides are together looting the public coffers. (On the topic of resource scarcity in the health system, see Hffe 2001b.) Let us finally ask what significance solidarity should have within a coercive and authoritative social order, in other words, within the law. Without a doubt, not all of the obligations of solidarity are entitled to the authority to compel. An obvious counter example is friendship: if the solidarity owed among friends is violated, no law has the authority to intervene. Let us call this freely-given solidarity, as opposed to a coerced solidarity. Communities of solidarity occupy an intermediate position and are formed voluntarily but also in accordance with the law. The legal order should obviously allow for such agreements to be reached. Communities of solidarity that coerce individuals to become members are only permissible if membership is required for reasons of justice. When considering the three types of solidarity identified earlier, it becomes clear that as far as cooperative solidarity is concerned, that coerced membership can be justified by the claim that, in the case of an emergency such as an illness for which one was not financially prepared, the non-members constitute a burden to the group. The group is allowed to protect itself against this prospectively, which amounts to an authorized and compulsory responsibility for social security policies against, for example, illness, accidents and unemployment. No compulsory insurance scheme is required; an obligation to be insured is sufficient. The issue is different, however, in the case of public health. In order to prevent and
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combat epidemics, certain immunizations, and in the wider sense, care provided to schools and mothers, remain a communal public responsibility, so that the difference between compulsory insurance and the obligation to be insured becomes obsolete. The assessment for antagonistic solidarity is similar. As long as one is a member of a particular collective one benefits from collective self-protection. Since freeloading contradicts the idea of justice, a contribution to the provisions required for the collective self-protection is required for reasons of justice. In the case of contingent solidarity an analogous argument favors coerced contributions. However, coerced solidarity remains an exception that always requires a legitimation and also carries the burden of proof. The broad arguments supplied above are necessary, but not sufficient. In each particular case both the right to coerce membership and the scope of that right must be established.

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