3. Principles of Justice

8/3/2019 3. Principles of Justice

1/26

PART ONE: QUALIFIED DEMOCRACY

Principles of justice 1

The original political contract has so far been defined only in procedural terms as atranscendental 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 onlyoccurs 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 fulldevelopment 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 thetenor 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 statecontract. 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 law-constituting 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 longdominated legal theory, law consists of commands from a superior power. This claim

2is challenged

3

by the existence of customary law, by the fact that the commanding body, the legislature, is itselfsubjected 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 thelegislature, with a strict standard. Free of the divergent interests and opinions of individuals, itworks 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 fact

4that 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 priorto, 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 merelyprovides 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 frameworkwithin 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 ofconscious 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 decency

7, and lastly,

soft law.Since the corresponding set of rules is prevalent

8nearly everywhere, it represents a

universally valid social grammar. Of course, no particular law is universally applicable, only thelegal 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


2/26



The distributivecollective advantage of the purported benefits9

of social rules needs to bequestioned

10. 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 SocialDarwinism, against the right of might. Individual arbitrariness, which includes passions such as

envy, jealousy, vindictiveness15

and even malice16

, 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 impartial

17third party and hence the embodiment of justice.

One might however object that there also exists a form of crime, which organizes itselfaccording 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 scale18

. Theobjection seems to call for an additional provision. Accordingly

19, 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 revenue

20officers, 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 setof 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 inthe 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 threatenedreprisals, 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 rulesbut 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 thecrime, 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 butonly to improve the effectiveness and efficiency of crime. The other factually predominant half

infringes25

upon equal treatment. The revenue officer too, is subjected to the tax law and thus

9

10

11

12PEDANTSM s. n. Parad de erudiie i de competen caracteristic pedantului; meticulozitate (excesiv i formal);

exagerare n lucruri de mic importan; pedanterie.13

FETIcSM s. n. Faptul de a venera fetiuri, cultul fetiurilor. Fig. Veneraie exagerat, lipsit de discernmnt, fade o idee, de un principiu etc.14

15

16 17

18

-19

20

21

22

23

24

25

inclaca


3/26



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 hisbehavior a crime.

One can even imagine an improvement on the benevolent Mafioso, a Robin Hood, whodistributes his bounty

26not now and then

27but 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 thisvery reason. For he inflicts

29on the bereft

30party 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. Thisfollows 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 iscompliant with the law and a rule-based order.

With this, we arrive at thefirst 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 applicablestrictly and in every respect31, the law

opposes personal arbitrariness32

and personalforce 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 partialliberation, 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 acontinuation 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 thatsucceeds in standardizing the law brings to full fruition

33the 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 therules? 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 andenergy 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 becomeill, succumb to an accident

39, 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

3031

32

33

34

35

36

37

38

39

cedeze la un accident


4/26



reasons even the mightiest do not rely solely on their present superiority but try to maintain it overtime, 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 dutyto 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 thegreatest 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 conflictshave 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 refutation45

is characterized by a dual qualification. On the one hand, not oneundisputedly46 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 thecandidates. 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 allhuman 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 thatone 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 drawingout 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 recentlyMarshall 1950).

(1)As moral claims within the realms of coerced morality and justice, human rights avoid thesimplified antithesis of representing exclusively either moral or positive legal authority. As

legalmoral claims, the disavowal47

of which would be disqualified as unjust by any positivelegal order, they encompass

48two modes of existence that are factually complementary but

methodologically very distinct. Within legal morality they are only human rights, that is tosay ber-positive claims that, once acknowledged as positive law, become human rights as

basic rights of a positive community nonetheless49

.

4041

42

43

44

45

46

47

48

49


5/26



(2)The fact that human rights are derived already from the primary contract, from the originallegal contract that the state contract presupposes, has ramifications

50that are ignored in

many theories: human rights exist prior to any state, they are rights that individuals have togrant 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. Itcannot originally grant these rights but can guarantee them in a subsidiary

51manner. Hence,

the original legal contract substantiates52

only the reciprocal (legal) obligation not to violateanothers possessions, such as life and limb

53. The justification of the requirement to protect

these goods through the rule of law and, for example, to provide police protection whenones life or limb is threatened, does not occur until the original state contract is concluded 54

(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 onceagain: 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: allit requires are the truisms 56 known to us from traditional anthropological thought.

Philosophical anthropology has known since its Greek origins that each human creaturescapacity to act distinguishes itself in three ways: (a) unlike pure rational beings, deities or

angels, it involves a zoon oranimal, that is a living organism. (b) In contrast to the animalscommonly 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 theunspecified 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-transcendentalinterests are to be expected in all three areas. As such

57, three groups of human rights can be

distinguished: the rights of living creatures; the rights of creatures that speak and reason; andthe 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 negativerights 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 ofpolitical 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 notestablished 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

56TRUSMs.n. (Liv.) Adevr banal, evident, care nu merit enunat; banalitate.

57ca atare


6/26



interests as well as to an inherent reciprocity, we avoid conceptions of humanity that are culture-relative, 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 onlyused 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 competing

59Asian or African values, can usually be rebutted

60from

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 bearersof 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 BecomingHuman, 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 thisdignity. 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 basisof human rights, that is, the individual personality of human beings (Hffe 1999a, 43). The Africansocial 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 westernfamily 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 thecircumstances 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 isinconsistent with criminal law, which protects in nearly all cultures particular rights to human

dignity, namely65

the right to life and health, to property and to a good name. Further buildingblocks 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, theprotagonist, the great king of Uruk, is summoned to

66not abuse his position of power and to treat his

servants justly. In the sixteenth century BC national Indian epicMahabharata, 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 firstWestern 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 ofreligious intolerance, Islam should be reminded of

67Sura 2:257: there is no compulsion

68in

58 59

aparent concurente60

nlturat61

DISPARITTEf. livr. Lips de echivalen, de legtur ntre elemente; nepotrivire.62

secundar63

CURATLs.f. Instituie legal pentru ocrotirea i administrarea intereselor unui minor, ale unei persoane atinse de o anumit incapacitate.64

n orice caz65

i anume66

Este chemat s67

S-i reaminteasc de


7/26



religion. In the face of such overwhelming evidence it is possible to make a generalization thatincludes 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 ofa 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 seeshuman rights challenged by pathologies that allegedly

70only occur in the West. Without a doubt,

human rights declarations are often born out of necessity. However, poverty, massive injustices suchas 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. Onecan 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 norto 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, inaddition, 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 prey

72to 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 such73

, there exists a basic equality or equaldistribution: human beings are potential victims as well as potential perpetrators

74. Since it is not

bound to particular cultures and eras, the danger of physical force and violence is part of theconditio 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 torelinquish

75the 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 . . .

68constrngere

69fundamentarea

70Se presupune c

71oboseal

72de a cdea prad

73Ca atare

74fptai

75A renuna


8/26



nor. Although both options are characterized by reciprocity, because of their transcendental interestin 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 toact, 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 anunbound freedom (licentia

76), 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 toact. 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 worth80and, consequently just.

Doubts may arise however, because whenever men use physical force and are violent againstone 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 alreadypresupposes 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 andcontradicts the first principle of justice, rule-based order.

Hohfeld (1966, 35) distinguishes between four categories of rights: the first category iscomposed of claims and liberties; the second category consists in powers, which allow one to alter

82

claims and liberties (for example by giving them away), as in immunities, that is, protection fromanothers 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). Inline with the character of the transcendental, however, the claim cannot be relinquished

83so 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 is-

ought fallacys84

formal logic, a mere interest does not substantiate85

the right to have itacknowledged. 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 thesubjective right to life and limb actually exist. A claim to a provision is generally valid when, from

the outset87

, the provision is offered subject to a return provision. Claims are substantiated88

inreciprocity, and universal claims are substantiated through the universal reciprocity that is

76permisiune

77nelat

78

aproximativ79 Egal ca valoare80

Aproximativ de valoare egal81

afirma82

afecta83

abandona84

eroare85

fundamenta86

Abtine87

De la inceput88

justificate


9/26



characteristic of humans simply because they are human. Whenever an indispensable interest can berealized 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 violentforce 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 excessivelyabridged

89. 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 torecognize 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 demandsuch 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 thecorresponding 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 consensusof 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 conditiohumana 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 itspreliminary wording, the second principle of justice demands that, if threatened, the protection of

life and limbbe assured through areciprocal 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 discovera 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 eachother. This reflexive and communicative (and in the case of debates on core issues evendiscursive

94) approach allows humans to sharpen their understanding of the goals of their desires as

89Abreviat, limitat

90Cu claritate

91invers

92Care uita

93Cad din senin

94


10/26



well as the means to their realization, but also of the corresponding opinions about themselves, thesocial 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 out

95to diverge significantly from each other but since they

presuppose the capacity to reason and speak, there is a transcendental interest of a higher orderabove 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 doso, 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 theabandonment 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

96other peoples

opinions (including their religious convictions). It is this right that enables the flourishing, if not theexistence, 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 integritywithout 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 toanother 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 bodily100

existence,speech or reason. The philosophical tradition quite rightly combines both designations, speaking of a

zon logon echon oranimal rationale (rational animal): human bodily existence is endowed with thecapacity 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 andproceeds 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 poorcapacity to speak can be made up and compensated for later, whereas a life once destroyed, remains

irrevocably extinguished103

.

95

96impiedica

97Respinge, infirma

98Deoarece, intrucat

99A dispensa de

100

101conex

102Daca ceva

103stins


11/26



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 theDoctrine 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 toact that complies with

104a 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 equalnegativefreedom: through the reciprocal abandonment of freedom rights, each subjectacquires that

same maximum amount of freedom to actwhich, according to the firstprinciple of justice, is feasiblewith

105 universally valid rules.

This principle allows us to delineate106

the first group of human rights. They are defensive innature, though not as understood by conventional state theory. They curtail

107private, not public

violence, which does not yet exist in the original legal contract. Human beings themselves grant oneanother 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, butonly to themselves. They mutually constitute one another as legal subjects, whereby

109author 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 relinquishing111

wildfreedom. Seen from a theoretical legitimatory perspective, a state is capable of no more thanguaranteeing the rights to freedom (see ch. 4.3).

The elementary conditions of the capacity to act can be further spelled out112

. We therebyobtain 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 theeconomy 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 rightsespecially 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. Noprecise 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 protectedand that theft, robbery, and arbitrary dispossession without compensation be prohibited.

The second and factual116

part of the property law, the prohibition of theft, can be explicatedonce more with the example of a Robin Hood who, in order to comply with

117the strict rule-based

order of the law, assumes the role of legislator and establishes a law that is kind to the poor. To startwith, he will have to recognise the first part of the property law: the right to property. He can then

104 105

FEZBIL, -,fezabili, -e, adj. (Franuzism) Care se poate face; realizabil, posibil.106

A schia107

A reduce108BIROCRATSMs.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 deinteres pentru fondul lor.109

Prin care110

Destinatari, adresai111

A renuna la, a abandona112

A preciza, a formula113

i anume114

Iobgie, erbie115

n schimb116

real117

A se conforma


12/26



help the poor gain access to property, either directly or through better education, and raise taxes tofinance a system of social security. Yet, since the law that he creates entails

118not power-based

commands but social rules that apply to all, no matter whether rich or poor, he can tolerate neithertheft nor robbery.

Some of the rights elucidated in detail here are dependent on history and culture. Still, theydo not constitute a valid endorsement

119of a radical criticism of the Enlightenment (MacIntyre

1985, ch. 5) or a radical cultural relativism that encompasses even human rights, as advocated byHerskovits (1947) and Rorty (1993, 116). The assumption that rights apply to humans as such

120but

that they are valid only within the realm of certain cultures may, on the face of it121

, appear paradoxical. The incongruity122 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 indeedhave 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 universalhuman 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 andsocial provisions. The protection of data presumes the existence of data files. There exists a culture-independent 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 ofspeech that includes the right to criticize rulers.

Other cases are more difficult to assess126

from a legitimatory perspective. The Westernunderstanding 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 andequal 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 violatesher 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 monogamydoes not necessarily lead to doubts about its status as a human right. Rather, a difficult weighing

131

of goods aims to identify the lesser interference with human rights and reserves the freedom todemand the improved situations that occasion no curtailment

132of human dignity.

118implic

119aprobare

120Ca atare

121La suprafa

122Nepotrivire, desonan

123anula

124

Expunere, tratat125 TRIVIL, - adj. 1. (Liv.) Comun, de rnd, obinuit; evident.126

evalua127

poligamia128

POLIANDRE s. f. Form istoric de organizare a familiei (ntlnit astzi numai la unele triburi primitive) n care ofemeie poate s se cstoreasc n acelai timp cu mai muli brbai129

A TRANSPRE transpr intranz. 1) A se vedea foarte vag (din cauza deprtrii, a ntunericului etc.). 2) A apreaprintre alte elemente; a se ntrezri; a se ntrevedea.130

A diminua131

cntrire132

reducere


13/26



3.4 POSITIVE RIGHTS TO FREEDOM: SOCIAL RIGHTS

Renouncing violent force alone does not make possible the capacity to act. In order to liveand 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, peopleare 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 natureand 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 isoverwhelming

133: 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 thecase long after an animal would have learned to cater to

134its needs on its own. As one grows up to

become an individual responsible for oneself, one settles down within a particular society and itsrespective 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, aswell as friendship and love, as elements, leading to higher levels of human self-realization. Last butnot 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. Withoutany 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 lackof 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 riskanyhow

137of 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 communicativefreedom 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 Habermaswho, inBetween 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 negativefreedom 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 humanrights perspective than negative freedom rights. They appear to have priority because they are

relevant even to subjects resistant to cooperation, such as the austere139 hermit140. For even those

who reject all forms of cooperation want to be safe from the force and violence of others. Negative

133copleitor

134A satisface

135A eradica

136evaluare

137n orice caz

138perfect

139AUSTR adj. 1. aspru, sever, sobru, spartan.

140pustnic


14/26



freedom rights are, as such141

, indifferent to cooperation; positive freedom rights, by contrast, aredependent 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 belegitimized 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 acceptsresponsibility only secondarily and subsidiarily.

Of course, the label positive freedom rights already indicates that they are fundamentallydifferent 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 satisfythrough 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 exceptionof self-defense, it is always the case that those who kill violate a human right. By contrast, lettingsomebody 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 societysnecessities 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 warmareas. 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 holidayswith 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 vein144

, incultures 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 culture-independent metric that would indicate the extent

145to which human rights are recognized. In highly

specialized and complex societies, by contrast, much more than the basic writing and reading skillsare 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 thoroughlygood 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

141Ca atare

142deficit

143DISPARITTE s. f. (Livr.) Lips de legtur, de armonie, de potrivire ntre elemente.

144n aceeai ordine de idei

145msura

146CONTNUUM s. n. 1. (Fil.) n filozofia clasic, realitatea material considerat ca un tot, prile cruia, unite ntre ele

fr soluie de continuitate, au o limit unic i comun.


15/26



leave some scope147

and leeway148

, which polities may fill out to varying degrees as partialsubstantiation 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 thegood 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 benevolenceand 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 ofsocial 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 thatare rich in friends to those that lack them.

As indicated earlier, in certain societal circumstances the right to education can have the rankof a human right. Also, where the means to subsistence

149have to be secured through labor, which

also determines the degree of self-esteem and recognition and contributes to ones personaldevelopment, a right to work is not farfetched

150. However, it may collide with a negative freedom

right, that of the freedom to choose ones profession and career. There also remains the problem ofresource scarcity: jobs can become scarce

151for 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 pipe-dreams or cheerful promises, but they are less than enforceable individual rights. They are more

akin152

to programmatic goals, the implementation of which in societal reality requires somecomplex assessments

153. 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 assessmentsthat 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 allhuman 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 ofviolence be confined

154to friends and family. When someone refuses to provide the mentioned

provisions, by contrast, others can usually contribute. It does not follow, however, that, as issometimes 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, byreference 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 forthe 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).

147Sfer de aciune

148Marj de manevr

149SUBZISTN s. f. Faptul de a subzista; (concr.) cea ce servete la asigurarea existenei materiale; hran.

150exagerat

151deficit

152nrudit

153apreciere

154limitat


16/26



Despite their many differences, positive and negative freedom rights agree with respect totheir 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 aresupplied 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 for

155 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 thementally 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 morecomplex 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 toany 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 andwater. 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 threetypes of justice have a role to play and that justice in exchange entails 158 both negative and positivefreedom. 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 tocompensate for past wrongs, and a primordial distributive justice.

The third law-standardising principle of justice, the principle of comparative positivefreedom, evades a simple definition. It reads:

(a)Through reciprocal positive provisions each legal subject is to obtain an elementary positivecapacity 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 thosepositive 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 arejust 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 basedeither 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 directlyresponsible and those not responsible, are violated. Because of the very fact that they are not

155compensa

156Uuratic, firav

157premis

158Atrage dup sine

159real

160complementar


17/26



responsible, the latter are in no way obliged to adhere to principles of justice. The question as towhether 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 originallegal 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 everyonereasonably 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 gobeyond 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 actitself, 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 haslegal 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 non-human 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 butsolely 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 ofracism, 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 morethan 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 provisionsare 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 acombination 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. Thisfundamental 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

andretribution166

. Then again, if animals are found that indeed claim more than a merely rudimentaryaccountability, then they ought, of course, to be considered legal subjects. When significant

161Condiionat, eventual, posibil, accidental

162responsabilitate

163nedezvoltat

164remucare

165dispre

166pedeaps


18/26



elements of accountability are present, it is advisable to consider granting them some rudimentarylegal 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, andnot 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. Infact, 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 unduly

167harsh

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 mentallyincapacitated 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 moredeprived 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 nomore 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 species-based arrogance, as Singer (1995, ch. 3) expeditiously170 claims. The notion of compensatory justicethat was appealed to earlier already suggested an argument that operates independently of species-

egoism: because children are born into this world with our full knowledge of their neediness171

andwithout their consent

172, 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 thenthe 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 violationnonetheless 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 alsobe 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 theeffects 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 arerequired: 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

167excesiv

168aspru

169dezgusttor

170Cu promptitudine

171srcie

172consimmnt

173

174Ca atare

175Alimentat cu pasiune


19/26



legal relations is most essential. The personal provision required in the original contract is thereforemore 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 jeopardized

176by social obstacles that are external to the

subject: by the possibility that others might refuse to acknowledge someone as a legal subject. Insuch cases, one asserts

177oneself 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 humanbeings would otherwise endanger their own lives, be it a life of bare

178survival or the pleasant and

good life. If the intention is to assert179

oneself even in circumstances such as these, a much morestringent 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 dutiesin Roman law see ch. 7.2) is, nonetheless

180, rather short, if not cryptic

181. Since even scholars with

Kantian leanings182

(see, for example, Kersting 1993, ch. A.V; Pippin 1999) have not yetsufficiently elucidated its systematic content, a detour into Kantian thought that admittedly

183goes

beyond mere textual exegesis184

seems here in order.

Already in early modernity the idea of self-assertion185

played a prominent role. It is,however, usually defined in empirical and pragmatic terms: content-wise186 as the assertion ofoneself 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 andNations, 1672, 7). Kant sets himself apart from both sides. As part of an original interpretation of

the (pseudo-)Ulpian legal maxim ofhoneste vive (be a lawful187

person), he introduces a new typeof 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 thecapacity 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 honorableness

188(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 moreprofound 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 isusually not recognized in Kants moral philosophy and thus easily overlooked

189by Kantian

scholars, is what is of paramount importance.

176primejduit

177afirm

178simplu

179

A susine180 Cu toate acestea181

ascuns182

tendine183

indiscutabil184

EXEGZ, exegeze, s. f. Interpretare, comentare, explicare istoric i filologic a unui text literar, religios, juridic.185

autoafirmare186

Coniunt nelept187

legiuit188

onorabilitate189

Trecut cu vederea


20/26



In a primordial sense, one is legally honorable if one constitutes oneself as a legal subject inthe 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 andreification

190by others not only verbally but also actively. An objection alone, however, is

insufficient, for subjects too can reify191

and degrade themselves by denying that they are theauthors 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 asbad (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 eitheragainst 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 directedtowards oneself as legal subject. Both provisions taken together constitute the original legal self-

assertion.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 thepublication ofThe Doctrine of Rightand nearly a decade after the Grounding for the Metaphysics ofMorals he still considers the honeste vive 192maxim to constitute the principle of morals that

contains all ethical duties and is, consequently, separate from legal duties (XXVII 527). Thiscategorization not to legal ethics but to virtue ethics is later corrected in The Doctrine ofRight,

though not with a complete reversal but rather with a differentiation: here, Kant distinguished thehonestas 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 asa 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 beassumed that the original legal honorableness is violated if one resigns

193to a state of lawlessness

194

such as slavery and serfdom195

. The original willingness to be accountable, by contrast, is violated ifone surrenders

196to 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 onescapacity to act through addiction

197.

Slavery is, from the perspective of honorableness, objectionable not due to some interest(one does not want to become a slave, a serf198or 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 usuallegal obligations are both external and are duties towards others. Legal self-assertion, in turn, is

190

REIFICRE s.f. (Fil.) Concretizare, materializare (a unei idei). Proces prin care relaiile sociale mbrac forma unorrelaii obiectuale, omul nsui devenind din agent contient al proceselor sociale simplu obiect, lucru, instrument alacestora.191

Concretiza, materializa192

A tri cinstit193

A renuna la194

Frdelege, anarhie195

erbie, iobgie196

A se preda, capitula197

dependen198

erb


21/26



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, asingular 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 intwo 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 self-

recognition needs to be supplemented by the original recognition of others. Everyone mustrecognize 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 provideequally, reciprocity is once more essential.

Without the additional recognition by others, ones self-recognition stumbles upon theothers 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, riskones 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 onlypotential legal subjects. In practice, they cease to be legal subjects, or do not enter into a life ofequality 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 requiresgiving 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 thelaw 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 isrecognized 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 advantageousand 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 duty-bound 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 wholegally 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 remainones 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 whilerecognizing 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, thecapacity to act must subsist in coexistence because both people and their coexistence attain the

ontologically higher rank of accountability.


22/26



With both advance provisions, the original recognition by oneself and the one provided byothers, 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 ofproto-justicethrough 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 legitimisethe 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 isbased 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 purposefulcharacter. 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 whichis 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 ofpraxis, 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 havemetaphysics is provocative but nonetheless conceivable. For it does not primarily depend on a

(contested) theoretical position of understanding but on a legalmoral advance provision. Onlysecondarily 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, isnot 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 theidea 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 themetaphysical 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 sub jects, through an original

recognition b y oneself as well as b y others. The first, law-constituting principle, the universalprecept of the rule of law:As embodiment of rules that are strictly applicable and in every respect,

the lawopposes personal arbitrariness and personal force and violence and, for that veryreason, isto 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 subjectacquires that same maximum amount of freedom to actwhich, 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 positivecapacity 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 thosepositive 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 arejust 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 arecomparative in nature.


23/26



(e)The third principle of justice is not substantiated via a justification that is exclusively basedeither 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 oflove 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 doesbelong 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) aswell as voluntary morality (charity), its normative halfway position leaves political legitimation at aloss: 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 conceptmust 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-Arzberger1992; Isensee 1998; Rorty 1989, ch. 9).

The concept of solidarity, nowadays a rather inflated term, represented originally, in Romanlaw, 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 ofeach 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 forall, 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. Theobligation 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

Documents

3. Principles of Justice