From ‘Rights’ to ‘Conditions of Justice’
how they exceed them in furthering our understanding of justice
The Declaration of Independence of the U.S. famously ‘holds’ that, besides being “created equal,” people are “endowed by their Creator with certain unalienable Rights,” among them “Life, Liberty, and the pursuit of Happiness.” Thus began the problematic role of Rights in the conceptual framework of societal justice.
There are many problems with Rights in that regard. For one thing, what are Rights? Where do Rights come from? What are all of those Rights? Is there a hierarchy of Rights, such that one person’s exercise of one Right trumps another person’s exercise of another Right? Each of those questions raises the question of who is to decide the answer to that question — and then who is to decide who is to decide that question, etc., etc. etc.
There is no need to address laboriously those questions. That they are all legitimate questions that can only be answered as a matter of personal conviction is sufficient to bring into question the place of Rights in justice.
Perhaps the biggest problem for justice, though, as any postmodernist will tell anyone, is that Rights are inherently self-centered: the focus is always my Life, my Liberty, my Happiness, etc. Who would deny that self-centeredness is on the face of it a problematic starting point for achieving justice? I’m sure Jesus would not.
The most important form of societal progress is, I submit, progress in our understanding of justice. It seems to me that it is high time we progressed beyond ‘Rights’ (and ‘equality’, for that matter) to understanding the ‘conditions of justice’. We’ll see how those conditions of justice not only match, but exceed everything the concept of Rights brought to that party, making ‘justice’ more intellectually coherent in the process.
The approach to justice involving conditions of justice hinges on the validity of one statement: human beings have no choice but to effect choices. That is, we are compelled by the conditions of our material existence to choose among perceived alternatives and take action to bring that choice to fruition.
Choices can range from the most trivial, such as what to have for lunch, to those that set a course for a person’s life, such as career, marriage, having children, etc. The point is that human beings have no choice but to effect choices. [I have to acknowledge here Warren J. Samuels, who all but defined “social power” as ’the ability to effect choices’ (which I obtained via Dr. Fred Boadu at Atlanta University).]
Anyone who does accept as valid that observation about material existence must accept the validity of the ethic that follows from it (unless a fatal flaw is found in the reasoning connecting the two). Moreover, the only way to prove the validity of the contrary proposition would be to live an entire life without ever effecting even one, single, solitary choice.
No one can know that any other human being has ever effected a single choice, but every human being knows whether he or she has done so — as anyone who has chosen to read this essay to this point must acknowledge. Anyone can perceive, based a person’s own observations within material existence, that other people also have no choice but to effect choices.
For anyone who recognizes that condition of material existence for oneself and all other people, effecting choices is integral to being human. To respect other people in that process, to take them into into account — to inform one’s own actions based on the persons and interests of other people involved in effecting any choice, whether they are involved as participants or as people affected by the choice itself or the process of effecting it — is to recognize them as fellow human beings. To act otherwise is to deny in some way, to a greater or lesser extent, other people’s humanness.
That gives rise to the definitive, sufficient, prescriptive condition of justice: mutual respect in effecting choices. (Technically, “mutual respect” is the ethic of justice and “effecting choices” is the domain of justice, the vast but finite aspect of life in which humans must be governed by that ethic — beyond which personal morality does rule.) That condition of justice is “definitive” because it tells us what justice is. It is “sufficient” because as long as we are abiding by it, we are acting justly. It is “prescriptive” because it tells us what we must do to act justly.
As the reader may have noticed, that condition of justice has no upper limit. We can act more or less justly depending on the extent to which we do take other people into account whenever we are acting to effect a choice.
There is, however, a lower limit to justice in effecting any choice. That lower limit is the dividing line between acting justly and acting unjustly in effecting choices. It comes from recognizing that respecting other people as humans in effecting choices means, at a minimum, respecting their given capacity as humans to choose.
Respecting other people’s capacity to choose means that their involvement in any way, shape, or form in effecting any choice must be sufficiently informed and voluntary. Otherwise, their capacity to choose is being co-opted or (otherwise) preempted.
Refraining from such conduct is the minimum, necessary, proscriptive condition of justice. That condition of justice is the “minimum” because it is the least we can do to take other people’s capacity to choose into account in effecting any choice. It is “necessary” because it draws the line between just and unjust behavior. It is “proscriptive” because it tells us what we must refrain from doing to keep from acting unjustly.
That condition of justice boils down to a handful of absolute prohibitions on actions involving other people whenever any choice is being effected: no killing, harming, coercing, stealing, or manipulating (which includes lying, cheating, tricking, etc.). To engage in any such behavior is to co-opt or otherwise preempt another person’s capacity to choose. As long as anyone is avoiding any such actions in effecting any choice, that person is being ‘just enough’.
Who would argue otherwise, anyway? That set of prohibitions for keeping from acting unjustly is intuitively satisfying. It is consistent with every notion of justice ever proffered. It is consistent with the moral code of every religion. Here, though, it is not merely a matter of personal conviction based on belief.
It cannot be stressed too much that acting on behalf of some other entity in no wise absolves any person who might transgress any of those prohibitions. ‘Businesses’ don’t choose to dump toxic wastes into the water or trade safety for higher profits; people effect those choices. ‘Governments’ don’t incarcerate, torture, and kill people for peaceably assembling or using their words to criticize the government; people choose to do those things. ‘Political campaigns’ don’t lie or cheat; people do.
Now we can see how those conditions of justice not only match, but exceed whatever the concept of has Rights brought to achieving justice. In making the comparison between Rights and conditions of justice for achieving societal justice we do have to distinguish between ‘Rights’ and ‘rights’. The latter are legal rights and political rights. They are universally accepted as being societal conventions. They have been developed within societies over millennia in the mechanics of seeking to achieve societal justice. Legal rights have arisen in the attempt to achieve a ‘fair’ system of law enforcement; political rights have been the recognition of the possible forms of participation in any society’s political process. The conditions of justice do not in anywise contravene the existence of such rights.
Respecting people’s “persons and interests” as a general statement covers all of the Rights in the Declaration of Independence plus the Right to property (identified by John Locke), and more. “Persons” includes “Life” as well as people’s emotional well-being, i.e., “Happiness;” “interests” include their “Liberty” and property. Also included, however, are people’s physical well-being (the health and physical soundness of their persons) and their wider pecuniary interests beyond property.
The prohibitions associated with the minimum condition of justice add more specificity. The relation between “killing” and to the Right to Life is most obvious. “Coercion” and “manipulation” are the forms that intruding on another person’s liberty can take. “Stealing” relates to all material interests. “Harming” covers all other matters related to persons and their interests.
Being aware of everyone involved whenever any choice is being effected, much less taking their interests into account, is a tall order. Moreover, whether any of those prohibitions has been violated, much less the extent of the injustice done that person if that is the case, can be a matter of debate. Resolving such problems related to achieving justice in society is the purpose of having a system of criminal and civil justice.
Altogether, a society governed by mutual respect would have the maximum liberty that co-existing human beings can share simultaneously. Liberty, it turns out, is the product of meeting the conditions of justice, specifically but not limited to refraining from coercion and manipulation in effecting choices. The more of the conditions of justice that are met, the more fully the members of a society will enjoy simultaneous liberty.
While to this point in this essay the conditions of justice have been limited to individuals in their interactions with one another in effecting choices (because Rights — and equality — are limited to individuals), it can be noted that mutual respect as the ethic of justice even applies to nations in their interactions with one another. Even there, though all the more difficult to enforce, as the old song says, “the fundamental rules apply.”
Within any nation mutual respect provides two conditions of justice for the political process: freedom of political speech and a ‘democratic’ distribution of political rights. In that way, every citizen is taken into account in that process, which after all is the process of effecting choices for the community as a whole. It turns out that democracy has always been governed by mutual respect (as its traditional foundation of ‘equality’, which implies a requirement of mutual respect, would suggest).
Whether either of those conditions of justice for the political process could be met without both being met (eventually, anyway) is an open question. If there is anything truly exceptional about the U.S., I would say it is that prior to its formal founding as a nation a prolonged period of freedom of political speech existed in which issues related to justice could be thoroughly threshed. That is a lesson that subsequent nation-builders seem to have universally overlooked.
Mutual respect provides three conditions of justice for the economy — which is nothing but choices being effected: freedom for people to choose how/to what extent to participate in the economy; a democratically distributed income (because money is to the economy as political rights are to the political process); and the absence of exploitation. The more of those conditions that are met, the more just the economy will be. Meeting any of those cannot justly compromise any other one. [The how’s and what’s of meeting the first two are related in “Same Economy, Way Better Outcomes for Society;” meeting all three is addressed in “A Fully Just Economy” (both in Medium).]
Going a bit deeper: justice as knowledge
Rights (always capitalized) were supposedly discovered, not conceived by human beings. They do not arise from the existence of societies, but would exist for every individual human being even if people did not live together in groups we call societies.
That is what gives Rights their supposed power. In fact, it is their Achilles heel. Accepting the existence of Rights is a belief, an assertion of knowledge that is not amenable to being validated or invalidated within material existence.
[I have explored elsewhere (in Medium) how a belief in equality is actually all that is needed to achieve a more just society, but, as a belief, that has the same issues of legitimacy that attend to Rights.]
Knowledge in the form of beliefs is radically individualistic knowledge. Yet, we have learned that all ‘knowledge’ comes down to a matter of subjective acceptance of it. Postmodernists have made the point that whether to accept or reject any received information as ‘knowledge’ is a power every being human has.
Such thinking has led to blurring the line between beliefs and rationalistic knowledge. That line still exists, however. The latter is knowledge that is amenable to being validated or invalidated within material existence. Some knowledge of that kind is settled, some might forever lie beyond the capabilities of Homo sapiens to know with all possible certainty. Even so, such knowledge is fundamentally different from knowledge in the form of beliefs.
Every belief is absolutely valid for everyone who shares that belief. That refers to both sacral beliefs, such as ‘believing in God’ (which this author does, by the way), and secular beliefs, such as believing in Rights (which this author has learned is useless) and equality (which this author accepts). No belief — nor anything that would follow from a belief, such as the ethic of justice, i.e., the rule of conduct to govern the governance of society — has any validity whatsoever for anyone who does not share that belief.
Lots of rationalistic knowledge is essentially no different from beliefs, in that no material consequences follow from such knowledge. It makes no material difference whether one side or another in a dispute over such knowledge prevails.
On the other hand, material existence is all about material consequences. Dealing with those (potential and realized) consequences requires meeting material existence on its own terms: knowledge that is validated within material existence.
People can claim that this or that belief carries material consequences, but accepting the reality of the purported relationship between that belief and those consequences depends on accepting the belief, which itself cannot be validated or invalidated within material existence. There is no disputing the relationship between material reality and material consequences.
The governance of society is rife with material consequences. Heretofore, the ‘ethic of justice’ (as defined above) has been sought in sacral beliefs (theology) or secular beliefs (ideology). Neither can possess the universally verifiable validity that a justly applicable ethic of justice requires.
Justice is always all about constraints on power. The question arises, can there be such a thing as justly constraining the power any human being has to accept or reject this or that piece of information as ‘knowledge’ (and anything that would follow from such knowledge)? Coercion of some kind at some level is unavoidable.
To achieve actual justice, in the form of an ethic of justice that is inersubjectively valid without coercion in any form, we have to turn to material existence. Even there, thanks again to the postmodernists among us, we have to acknowledge that intersubjective knowledge is problematic: no one can know that anyone else shares one’s same experience of material reality.
Even so, material existence at least offers the possibility of the universally verifiable commonality that justice requires. The result is a move away from a belief in Rights (and equality) in the attempt to achieve societal justice to ‘conditions of justice’ for co-existing human beings.
Unlike Rights, the conditions of justice are embedded in material existence. They are the obligations human beings have to one another by virtue of our common existence as human beings sharing the same material existence. ‘Rights’ were originally referred to as “Natural Rights.” Which is more ‘natural’, though, to say that it is unjust for the life or liberty or happiness (or property) of any person to be arbitrarily taken because all people have ‘Rights’, or to say that such acts are unjust because we are all human beings?