I apologize in advance for writing about a topic that is at least closely related to, if not the same as Nate’s. But it is his fault. He made me start thinking about the question of freedom and its relation to justice.
Consider these two quotations from 20th century thinkers whom I respect greatly:
Hans-Georg Gadamer:
For the sophists, justice is only the conventions of the weak which protect the interests of the latter. For the sophists, ethical principles are no longer valid in themselves but only as a form of our mutual “keeping an eye” on one another. The “just” is that by means of which one person can assert himself against another with help from everyone else and, as such, it is adhered to only out of mutual distrust and fear. . . . All the many variations of the sophists’ theory of justice are alike in providing a “foundation” for justice. And whether the sophists conceive of themselves as conservative or revolutionary, indeed even when the sophists think that they are giving a foundation to the authority of civil law, in principle they have already perverted the sense of justice. As judges of justice they fail to acknowledge it even if they “acquit” it. Thus Callicles’ and Thrasymachus’ declaration that might makes right only serves to disclose the mentality which prevails in all sophism: No one does what is right voluntarily. (“Plato and the Poets” 50)
Immanuel Levinas: “Justice consists in recognizing in the Other my master” (Totality and Infinity 72).
At first glance that seems to disagree with Gadamer. Justice requires that I be ruled by the other person, so I do not act according to my will, i.e., freely, when I act justly. Yet Levinas laments the sophistic understanding of justice which he describes in this way:
[In modern political theory], only the limitation [of freedom] is tragic and shocking. Freedom is called in question only inasmuch as it somehow finds itself imposed upon itself: if I could have freely chosen my own existence everything would be justified. The failure of my spontaneity, as yet bereft of reason, awakens reason and theory [. . .]. From failure alone would come the necessity of curbing violence and introducing order into human relations. Political theory derives justice from the undiscussed value of spontaneity; its problem is to ensure, by way of knowledge of the world, the most complete exercise of spontaneity by reconciling my freedom with the freedom of others [which it does by creating constraints on our freedom]. (83; translation revised)
For Levinas, this conception of justice is tragic because it does not allow for a mastery by the other person that is not a limit on my freedom, but its foundation. (See 197.)
So, both Gadamer and Levinas argue that justice cannot be the product merely of limitations on my freedom. As Levinas says, “Justice summons me to go beyond the straight line of justice, and henceforth nothing marks the end of this mark; behind the straight line of the law the Promised Land [literally “the land of goodness”] extends infinite and unexplored” (245, translation revised).
Are they right? If so, what kind of positive political program can we argue for: can we have a political system that relies on anything more than the sophists’ idea that “no one does what is right voluntarily”? How can justice go beyond the straight line of the law and enter into the Promised Land? Gadamer the Christian and Levinas the Jew agree (at least on this). How does a Mormon—a Christian and a claimant to the blessings of Israel—understand justice?
“If so, what kind of positive political program can we argue for: can we have a political system that relies on anything more than the sophists’ idea that ‘no one does what is right voluntarily’? How can justice go beyond the straight line of the law and enter into the Promised Land? Gadamer the Christian and Levinas the Jew agree (at least on this). How does a Mormon—a Christian and a claimant to the blessings of Israel—understand justice?”
A couple of deep, powerful thoughts there, Jim. I wish I had the time, energy, and will to examine them in the manner they deserve.
Most theories of justice of the sort which Gadamer and Levinas criticize take as their starting point, whether explicitly or implicitly, some notion of scarcity. People will not act well, they will not do right voluntarily, because everyone wants to live, and the manner in which we apprehend the basic requirements of living turns us against others in pursuit of limited goods. In a condition of plenty or perfect self-sufficiency, this kind of justice would be exposed for the fairly grubby game which it actually is; however, so long as we accept the basic story of scarcity or incommensurability, the zero-sum mentality, then justice remains locked in a struggle with–and thus is defined by and defines in turn–freedom: what can we “freely” do, and what can we allow others the “freedom” to do, considering our own needs and interests and rights?
The routes out of this dead-end line of thinking are numerous; whether they are practicable is another question. Socialist and utopian thinkers have often critiqued any notion of justice which takes the presumed socio-economic strictures of the world as a given, and thus contents itself with “distribution” (who gets which rights and which goods and when?) rather than “production.” Unsurprisingly I’m sure, I see many parallels between that critique and the one which has been made by numerous Christian thinkers, including at least a few Mormon prophets and apostles, who seemed to see in the development of covenanted communities the ability to generate a politics wherein everyone, by being equally bound to one another and equally engaged in one anothers’ livelihoods, is collectively and consensually sustained, and thus need not become paranoid about this or that scarcity or conflict. Such communities, in theory (and sometimes even in practice) lead people out of their suspicious, defensive crouch, and enable them to act “spontaneously” towards their fellow person.
Of course, such spontaneous charity–going beyond the straight line of the law–is hardly unknown in today’s world. But it is seen, for the most part I think, as something which exists on a private and personal level, as opposed to a public one; it is not the rule of our communities. Indeed, our thinking about “freedom” tends to make us think that anything spontaneous or ecstatic or truly and wholly other directed is incompatible with the notion of a rule. This makes me think of some of what Arendt wrote about beginnings and unpredictability and so forth, but I’m too tired to look it up now.
David Hume sketched out what he called “the conditions of justice” (or maybe it was Rawls who came up with the term for Hume’s idea; I can’t remember and I am too lazy to look it up). He argued that justice governs in a particular kind of situation, namely interactions between strangers. Hume — and his liberal decedents — went on to sketch what might be thought of as the limits of ethical indifference. What is striking to me is that Hume’s situation seems remarkably similar to the road to Jericho, another place where strangers interacted. Indeed, the parable is set up so that it is the ultimate stranger — the Samaritan — who does the Christian thing. I don’t know, however, if what we are supposed to take away from this is that the conditions of justice ought to never obtain or if we are supposed to use it to think about justice in some sort of different way. In other words, was the action of the Samaritan an abandonment of justice as an ideal, or was it a new concept of justice?
Russell: I think that you are right about the “sophists” notion of justice being based on some notion of scarcity. (I do think that Gadamer et al are engage in a rhetorical sleight of hand when they label what are essentially liberal notions of justice as sophistic.) The response to this is a notion of justice that creates highly formalized relationships between people. Legally, we see this in the form of formal rights — most notablely property rights — and a private law regime that at least ostensiblely makes itself indifferent to the ends pursued by actors within it.
The ironic thing, of course, is that the formalism created in response to scarcity has ended up being the greatest ameliorater of scarcity that humanity has ever seen. The glory of the legal formality that flows from a liberal conception of justice is that it allows for interaction and cooperation in the thin social setting of the marketplace. We don’t need to have rich social connections to trade with one another in mutually advantageous and fair ways. The result for societies that have bought into this formalism has been phenomenal economic growth that has created a level of freedom from want unprecedented in human history. Furthermore, one needn’t subscribe to Hernado De Soto’s faith in the miraculous powers of legal formalism alone to save the poor to realize that the rule of law — ie a rule of thin, formalistic relationships — is perhaps the single biggest ingredient for economic advancement in the developing world. You will be hard pressed to find a serious scholar of economic growth who does not believe this.
If we are serious about improving the material condition of the global poor, we have to realize that what they need are not so much troops of Mother Tereasea-esque altruists as commercial lawyers and context in which they can ply their trade. This may be an inferior vision of justice on some spiritual level, but it will do much more to actually make the poor and the miserable less poor and less miserable.
Gadamer paints a picture in which the sophists view justice as the weapon of the weak in society’s war of competing interests–it’s their little way of “sticking it to the man.” Since the sophists (in Gadamer’s view) don’t see justice as necessarily desirable (and I take it that Gadamer doesn’t either, when it’s defined the way that he takes the sophists to define it), it’s kind of odd to fault the sophists for perverting justice; I sense equivocation.
Levinas’s idea of freedom seems confused to me, too. He appears to take it ill that we encounter conditions that existed prior to our realization of freedom. I wonder if he takes a similarly dim view of unforeseen contingencies (specifically, ones that are chaotically unpredictable due to computational irreducibility). But he’s wrong to suppose that choosing our existence would solve everything, since our choice of baseline conditions would be just as limiting as those we encounter once we’re already in existence.
Levinas seems confused on the justice question, too. The fact that justice requires some trade-offs with freedom really doesn’t have anything to do with whether justice results in a net gain in the amount of freedom available. Why shouldn’t justice be conceived of as something obtained at the expense of certain types of freedom? Justice also often takes money and time to obtain. Why bemoan the fact that justice requires trade-offs?
But is your question whether we can conceive of a system of justice that isn’t primarily punitive? I don’t know. Maybe we could change all the signs that say, “No littering–$500 fine” to read “Garbage dump–$500 per item.” In any case, I’d be happy with some much more modest goals–like having a tax system that isn’t primarily punitive.
I posted this right in the middle of trying to meet a deadline for a paper I’m delivering at the end of the month. It’s due today. So I don’t have much time to respond, and I apologize for that.
For now I’ll make only one brief note: I don’t think that Gadamer is necessarily making an identification between “sophist” and “bad.” The sophists, however, believed that all law is merely conventional. Because that belief can (but I think doesn’t necessarily) reduce to an absolute relativism, Plato objected to them. Almost everything we know and think about the Sophists comes from Plato. Gadamer was a classical scholar before he was a philosopher of hermeneutics, and I’m fairly sure he is using “sophist” in its technical, classical sense: one who believes that law is conventional, perhaps even merely conventional.
Okay, I’m going to make two notes: Levinas believes that encountering conditions that exist prior to our realization of freedom is a good thing. That–specifically our encounter with other people–is the foundation for the possibility of freedom. He finds the idea of freedom as spontaneity problematic but thinks that it is at the root of the sophistic understanding of justice.
As far as Gadamer’s reference to the sophists, the only objection that I have is that the sophists seem to me to be rather less uniform in outlook than Gadamer implies.
I can see what you’re saying about Levinas take on freedom. But I’m still having a little trouble with the Levinas passage. Here’s my interpretation, piece by piece:
only the limitation [of freedom] is tragic and shocking. Freedom is called in question only inasmuch as it somehow finds itself imposed upon itself: if I could have freely chosen my own existence everything would be justified
The first clause here seems at first glance to refer to instances in which freedom grants claims to mutually exclusive behaviors. Something like, a criminal’s freedom to roam free vs. the cops freedom to prevent him from roaming free.
But the 2nd clause thwarts this interpretation, which is why I take it to refer to the baseline conditions that someone encounters as an existent. Understanding a man’s freedom in terms of his potential to act imposes upon him the limitations of the baseline conditions that he encounters in his environment. In this case, freedom is “imposed on itself” insofar as it arises from a chance state of inequality and is thereby apportioned in arbitrarily unequal amounts among all men.
The failure of my spontaneity, as yet bereft of reason, awakens reason and theory [. . .]. From failure alone would come the necessity of curbing violence and introducing order into human relations.
I take this to refer to the fact that the arbitrary and unequal apportionment of freedom leads to the need to construct some notion of a just distribution, resulting in laws, crimes, and punishments.
Political theory derives justice from the undiscussed value of spontaneity; its problem is to ensure, by way of knowledge of the world, the most complete exercise of spontaneity by reconciling my freedom with the freedom of others
So justice seeks to ensure the highest amount of freedom possible by making net positive trades of freedom for freedom. To pick an uncontroversial example, people have some of their earnings confiscated (as taxes) to pay for roads, government buildings, fire houses, police stations, schools, and other infrastructure.
And finally, from your paraphrase of p197) all of this fails because we understand justice to entail some amount of lost freedom, even if there is a net gain. (I won’t touch the p245 passage, because I honestly can’t even imagine what Levinas has in mind when he says things like “Justice summons me to go beyond the straight line of justice…”).
On this reading, my criticism of his view of justice seems warranted. Where have I gone wrong? (Feel free to treat me as a straight man and exploit this open ended question with any punchline you can devise.)