This article ventures to seek different approaches to the notion of ‘justice’. It discusses John Rawls’ interpretation of justice and concludes that, even within his famous definition, the notion of justice is not defined and merely raises further questions. Even in famous theories, such as those of Rawls, eventual value judgements about ‘justice’ cannot be avoided. Here, the approach of Celsus is preferred. His approach is also open to value judgements but does not pretend otherwise. This approach acknowledges that law is an art and does not pretend to have the ability to find a final definition of ‘justice’. Within the more anthropological approach to law provided by Celsus, taking into account the context of culture and what its people perceive to be just, five points, of what Western Europeans perceive to be just are discussed – namely – group rights, feelings, history, limited solidarity and the exception.
What is justice? Some people seem to know the answer to this question, whilst others do not. Probably the latter have more wisdom. Let me try to explain.
When it comes to justice, two major approaches are possible. The first one is philosophical or ethical. The second is legal in the more profound sense of the word. The philosophical approach has been developed by many philosophers over the centuries. Yet in recent times, the influence of John Rawls (1921–2002) has been overwhelming. He published his famous book
The key ideas of John Rawls (Rawls
Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity. (p. 302)
To be honest, I have never been a fan of John Rawls, probably for two reasons. The first one is that I always preferred philosophers who do not leave aside truly metaphysical questions about the sense of life (although the end of metaphysics remains uncertain [Benoist
Personally, I prefer the second approach, which is at the same time much older and much simpler. It is the definition common to Roman lawyers, formulated amongst others by Publius Iuventius Celsus: ‘
You may have noticed that my preference goes to Celsus. His more anthropological vision of law gives a lot of space to hermeneutic insights, taking into account the context of the current culture and its influence on what people perceive to be just. Starting from that angle, I would like to discuss five points which, in my eyes, are characteristics of what Europeans perceive to be just, right and fair. Perhaps I should say ‘citizens of Western Europe’, as the Central and Eastern part of the continent, probably as a result of a more recent totalitarian and communist experience, is less open to certain forms of more experimental thinking, typically coming from the United States.
A first remarkable phenomenon is the strong revival of group rights (Bisaz
Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional, or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing, or under any limitation of sovereignty. (art. 2)
The Article was formulated in a very specific era, immediately after World War II, a period of both war and totalitarian thinking. At the same time, many countries were still colonies or not independent yet. But the rights of those people were not forgotten. Amongst the authors of the Universal Declaration, the role of P.C. Chang from China was in that regard of utmost importance (Roth
A rather recent phenomenon is the emergence of the role of feelings in the legal discussion on justice and fairness (ed. Ghelfi
The first one concerns the extension of the definition of religious freedom. For example, this happened in a decision of the European Court of Human Rights, E.S. vs. Austria of 25 October 2018.
Yet, apparently, a fourth element is gaining ground, namely the right not to be hurt. This is a remarkable evolution, and one can consider it as a re-introduction of the crime of blasphemy of the past. A specific aspect of this evolution is the legal relevance of feelings when it comes to defining the content of freedom of religion as well as the limit of freedom of expression. Indeed, some people feel hurt easily, whereas others are perfectly able to live with a lot of criticism. An additional element is that people who feel hurt may not be directly involved themselves. Not their person but certain concepts of their religion is under attack.
Traditionally, the rights of others are a limitation to human rights. Yet today, the feelings of others seem to form that border. This is a very dangerous evolution for human rights as a whole.
A second example of the growing influence of feelings is the idea of safe spaces, a phenomenon better known in the United States than in Western Europe, yet quickly gaining ground in Western European countries. The phenomenon is particularly seen in American universities, where the idea is that feelings of vulnerable students or students belonging to minorities, only those two categories, should never be shocked (Prager & Joseph
When the Universal Declaration of Human Rights was promulgated in 1948, the hardly hidden underlying idea was that the past was the past and that we should look to the future to avoid the same mistakes being committed again. In other words, it was a kind of
For a long time, in Western Europe, as in many other countries, women were discriminated against. They were not allowed to study at university or were excluded from voting in elections. These obstacles were removed only gradually, and the struggle for equal chances took many decades. Yet today, the theory of postponed sorrow claims advantages for women as a compensation for the sorrow undergone by their grandmothers. Historical discrimination is an argument for reverse discrimination as a compensation today. Of course, there may be arguments for this. But here again we see that the group becomes more important than the individual. Indeed, it is not the grandmother who receives compensation, as she will have most likely passed away. Another person obtains the reverse discrimination as a compensation for sorrow suffered by others belonging to the same group, in this case, the rather large and very diverse group of women. An interesting question remains: from what point onwards does this reverse discrimination creates new forms of injustice, possibly in need of a correction in a far future (Starck
In any case, the role of history, absent as a legal criterion in 1948, becomes increasingly prominent today. This leads to an additional difficulty, as history as such is not a static notion and tends to change at any moment, sometimes unexpectedly. According to the Italian historian Benedetto Croce (1866–1952), all history is contemporary history, as all study of the past is coloured by the problems and needs of the writer’s own time (Galasso
The tendency of limited solidarity differs somewhat from the previous ones and is more connected to the very procedural form of justice that is increasingly present in Western European societies. Here, two elements come together.
The first element is the welfare state (Spicker
A second element which goes hand in hand with the previous one is the growing influence of compliance systems in society as a whole, including in personal contacts and working situations. The obligation to follow adequate procedures becomes more important than making ethical value judgements and expressing personal feelings of sympathy or commitment, putting control before care. In many cases, ethical norms become procedural norms, not leading to deeper thinking but replacing thinking by a compliance procedure that seldom goes beyond the level of pure formalism.
The combination of abstract solidarity and formal compliance leads to a limited feeling of compassion and commitment when it comes to the suffering or the problems of other people. This becomes very clear in the current debate on migration in Western Europe. Whereas the distinction between a refugee and a migrant is still made in the technical sense, the support for the migrant population as a whole is quickly decreasing. This evolution goes together with a rapid growth of political parties carrying more extreme ideas. It goes without saying that the democratic state and the rule of law, including the respect of fundamental rights, should be preserved at any price. But then again, fundamental questions on what is just and what is right cannot be avoided any longer. One question concerns the limits of both solidarity and hospitality. Both are not unlimited (Derrida & Defourmentelle
Here, two elements should be kept in mind. Firstly, human solidarity is limited and sooner or later it will be reflected in the legal system. Anthropology corrects abstract justice. Secondly, today we are confronted with different ideas of justice all over the world. The social welfare state as it exists today in Western Europe is hardly present in any other region worldwide. A combination of a regionally limited welfare state and (almost) free migration is impossible in the long run. An answer could lie in establishing welfare states everywhere or suppressing it in Western Europe. Yet, probably both are impossible or not desirable.
The fifth element that needs some attention is the exception (Sarfati
A question remains whether some space should be left to the individual exception. It is a hazardous idea, as any exception to an abstract rule gives the impression of being unjust. The law is applicable to all. It is one of the main principles of our democratic legal system. A mechanic approach is also fostered by the growing influence of the Internet, strengthening uniformity and abstraction, and ultimately formatting human thinking. Nonetheless, in all languages, there are proverbs in favour of the exception.
In any case, the exception is at odds with the principle of equality. That is why, for instance in Roman Catholic canon law, privileges are looked at with distrust, and rightly so. A privilege implies that a person or a group of people are not bound by the law. Since the period of the Enlightenment, this strong form of inequality is no longer acceptable. But what about the individual exception? In canon law, it is called dispensation, which is meant to introduce one single exception for one single situation.
In general, people are opposed to the exception, at least theoretically. In practice, it is more difficult. For instance, people are sometimes very strict when it comes to repatriating migrants without a legal residence permit. Yet, when it comes to the neighbour or the classmate of their children, they may have a different opinion.
The exception to the rule may come close to what misericord used to be in the past or in legal tradition. At the same time, it does not fit within a system of abstract norms. Is there a solution for it in the future? Here, the answer is that as long as the trust is less important than compliance or the need to follow abstract norms, there is hardly any space for the exception, as people can only see abuse in it. Obviously, the difference between intrinsic justice and formal justice does not leave the space that the exception requires to be acceptable. For instance, a physical handicap or war circumstances may not be foreseen in formal procedures but could be relevant for a global value judgement underpinning the decision of allowing an exception.
To conclude, I do not believe in law as a closed or perfect system. Law is an art and does include both norms and a keen attention to anthropological concepts. Law always evolves but seldom makes progress. Today in Western Europe, the democratic state, the rule of law and the human rights catalogues are still absolutely crucial. The signs of the time can strengthen or can weaken them and probably they do both. I described five tendencies going from group rights, over the relevance of feelings to the power of history, the limited solidarity and the fear for the exception. New trends will emerge, and the current ones will not always lead to a satisfactory solution. Such is life. Such is law. Such is justice.
The author declares that he has no financial or personal relationships that may have inappropriately influenced him in writing this article.
R.T. is the sole author of this research article.
This article followed all ethical standards for research without direct contact with human or animal subjects.
This research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.
Data sharing is not applicable to this article as no new data were created or analysed in this study.
The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of any affiliated agency of the author.
Judgement by the European Court of Human Rights, Fifth Section, case of E.S. vs. Austria, Application nos. 38450/12, 25 October 2018.
A certain number of academics support this idea. According to Ulrich Bear (2019), free speech can serve as a hollow concept to advance a reactionary agenda rather than set all of us free.
This is also a burning issue in a country like South Africa where even relief given by the government in times of a disaster may be subjected to this blanket form of justice as a criterion to who may receive help and who not.
According to Derrida, hospitality is theoretically limitless, yet not in practice (Derrida & Defourmentelle