Justice

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Justice, by James O'Dea

The time has passed when justice could be conveyed as a solitary blind figure holding a devise representing a simple up or down relationship between cause and effect. Justice cannot be served without a deeper understanding of causality or an appreciation for the complex relationship between personal and collective responsibility or conditions which are the direct by-product of systems design and structural realities.

A justice system bound by strict orthodoxy to rules, procedures, historical precedents and the language and intention of forbears and whose judiciary is reduced to higher clerical functions in meting out punishments and mandatory sentences is anachronistic and incapable of meeting the complex needs of 21st century citizens.

Inclusion and interdependence

Justice must be designed to reflect not an ancient ideal but the capacity to integrate an ever evolving morality based on inclusion and interdependence rather than the right and privilege to exclude based on outdated norms of the past. Rather than selectively ignoring our scientific, cognitive, social, psychological or moral development as a species, justice must always seek the most comprehensive and reliable synthesis of contemporary knowledge.

This task cannot be accomplished as long as justice is regulated to the status of bureaucracy, or subsumed under narrow ideological and political purposes or the interests of corporations. Justice can only be accomplished through the cultivation of wise judges, laws and legal institutions which are based not on unscientific notions of punishment and retribution but on notions of healing, contrition, making amends, restorative action where damage is caused and, where possible, rehabilitating offenders into healthy citizens. Justice must always be vigilant to systemic inequities and the interrelatedness of systems: rights held within economic systems need to be matched with rights within ecological systems.

Administering justice

Thus those who administer justice must be qualified to make judgments that are informed by psychological insight, emotional intelligence and an ability to demonstrate creativity in problem solving. The 20th century will be remembered for the reintegration of the subjective component of consciousness and the end of the myth created by scientific materialism of a reality consisting of purely objective laws. We now know that our subjective witnessing conscience is entangled in everything it perceives in the objective realm. There are objective laws and there is powerful subjective meaning making. Justice too has its principles and may be informed by an evolving body of law, but it also resides in the unique capacity of the human to discern unobvious truths and forge uniquely creative solutions.

Justice therefore must seek to be comprehensive, restorative, distributive, ever evolving in its inclusiveness, psychological penetration, and humanizing dimensions. Rather than symbolized by the blind person with a scales, its modern symbol is the community in all its diversity standing open-eyed, vigilantly encircling the planet, held together in mutual responsibility for the emergence of the highest good.

See also

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Author: James O'Dea

Justice: How the environment changes traditional conceptions, by Niki Seth-Smith

A fundamental distinction between theories of justice lies in their understanding of its source – either as a creation of man, or as derived from the discovery of a higher order, such as the divine will, or natural law. A second distinction pertains to application. Theories of justice have historically been applied to groups of people, determined by factors such as territorial boundaries, religious affiliation, or race. In the late 20th century, however, a sustained effort began to develop ethical analyses of international politics, drawing upon the traditional concerns of domestic justice. The need for a theory of international justice necessitates an analysis of the extent to which traditional theories of justice can be internationalised or universalised. Furthermore, from the perspective of environmental ethics, a theory of justice is insufficient if it fails to take into account the moral relationship of human beings to the environment, as well as the environment’s own moral status.

Justice derived from a social contract

Theories of justice based on the concept of a social contract posit man as the source of justice. Contractarianism, which stems from the Hobbesian line of social contract thought, is both a moral theory, setting out the origins of justice, and a political theory of the legitimacy of authority. Contractarians hold that people are primarily self-interested, and that self-interest leads people to act morally, where the moral norms maximise joint interest, and to consent to governmental authority. The most important recent contractarian was John Rawls, whose theory of justice proposes a hypothetical situation in which persons in "the original position" - a state of equality and lack of bias - agree to the provisions of a contract that defines the basic rights and duties of citizens in a civil society.

Social contract theory has traditionally referred to a nation state. It relies on the possibility of a meaningful, if hypothetical, agreement between citizens in a civil society. For a global contract to be plausible, then, we must assume that there is a certain degree of shared self-interest between people, whatever there nationality and wherever they may live.

From an environmental perspective, Contractrianism holds further difficulties. It may be argued that protecting the environment is in the collective interest of people on the level of the nation-state, as well as on the international level. However, within this framework, the environment is given only extrinsic value, as a means to the end of fulfilling other aspects of the social contract. Environmentalists have argued against the anthropocentric view, which has traditionally dominated Western ethical perspectives, that only human beings have intrinsic value. Arne Naess is a leading thinker in this field, and has made the distinction between the ‘shallow ecology movement’, which he has summarized as “the fight against pollution and resource depletion” and his own ‘deep ecology movement’, which endorses “biospheric egalitarianism” – the view that all living things have value in their own right, independent of their usefulness to others.

Social contract theory appears to only be able to recognise the environment as having an intrinsic value by including ‘the environment’ as privy to the contract, which, if any sense can be made of it at all, throws up questions as to the relevance of ideas around self-interest to the environment.

Theological theories of justice

Theological theories of justice are derived from an understanding of God or Gods. Thus, according to divine command theory, ethical sentences express propositions, some of which are true, about the attitudes of God. Sentences such as ‘to forgive is good’ are thus identical in meaning with sentences such as ‘God commands forgiveness’. It is often claimed that divine command theory is refuted by the Euthyphro dilemma, which asks: ‘Is an action morally good because God commands it, or does God command it because it is morally good?’ In the first formulation, it is claimed, justice must be arbitrary; in the second, God must be subordinate to a higher truth. Theologians who seek to refute this dilemma propose that God is by nature good, and thus God's actions are necessarily just.

Through proclaiming a universal God (or Gods) as the source, religions posit their systems of justice as universally true. However, the extent to which a theological theory of justice can be internationalised or universalised is restricted where the rules laid down by these systems are applicable only to members of the faith in question. Being rule-based, religious systems of justice enshrine the duty to protect the environment where they recognise its intrinsic value. While the Judeo-Christian tradition contains ideas of humans as ‘stewards’ or ‘perfectors’ of God’s creation, environmentalists have criticised the major Western faiths for their shared hierarchical notion of man as having dominion over all other life on Earth.

Natural law, human rights and the rights of the environment

Natural law theory makes the distinction between particular laws, created by human beings, and the common law that is according to nature and unalterable. While Aristotle is often named as the father of natural law, Aquinas is credited with having set out the central case for a natural law position: first, that the precepts of natural law are universally binding by nature; second, that the precepts of natural law are universally knowable by nature. The idea of natural rights, developed in the Enlightenment by figures such as John Locke and Immanuel Kant, is closely related to natural law theory. These rights are proposed as inalienable, self-evident and universal and are not contingent upon the laws, customs, or beliefs or any particular culture or government.

Natural law theory, and the theory of natural rights, has informed our modern concept of human rights. These rights exist in morality and in law at the national and international levels. The main contemporary sources are the Universal Declaration of Human Rights and the many human rights documents and treaties that followed in international organizations such as the United Nations, the Council of Europe, the Organization of American States, and the African Union.

While there is a substantial body of international environmental agreements, the essential concern of these treaties, protocols and conventions is the common good and future of humanity, drawing upon ideas of sustainable development, the common heritage, and the precautionary principle. There are no recognised legal or moral international norms regarding environmental rights, therefore. Furthermore, from the perspective of environmental philosophy, there are fundamental difficulties in attempting to apply the concept of equal rights for individuals to different species, or to organic wholes, such as ecosystems. Proponents of Naess’ deep ecology, for example, may reject the individualist logic of human rights, arguing that the world should instead be conceptualized in relational terms, with an emphasis on the ecological relationship between organisms, whether human or otherwise.

Consequentalist theories of justice - Jeremy Bentham and Peter Singer

Consequentalist theories of justice determine whether an act is just based on the consequences of that act – or of something related to that act, such as the motive. Utilitarianism is a paradigm consequentialist theory. Classic utilitarians, such as Jeremy Bentham, view the moral worth of an action as determined solely by its usefulness in maximizing ‘the good’ and minimizing ‘the bad’, where pleasure is the only intrinsic good and pain the sole intrinsic bad.

While Bentham’s ‘felicific calculus’ has been applied in practice to determine the greatest pleasure for the greatest number of people, Bentham himself believed that all beings capable of pleasure and pain should be taken into equal consideration when assessing an action. Peter Singer, a modern utilitarian, has adopted this position to argue that the privileging of humans above other sentient beings is a kind of “speciesism”, as unjustifiable as racism and sexism. Whether a utilitarian ethic can be considered an environmental ethic is a point of contention, as the protection of non-sentient beings is only justified to a utilitarian where to do so would maximize the pleasure of sentient beings.

See also

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Author: Niki Seth-Smith