Beyond Justice by Agnes Heller (1987)

3. The Concept of Dynamic Justice

In this chapter I shall return to the method of the first chapter. The presentation will therefore be analytical (in the Aristotelian sense) rather than historical. Since it is dynamic justice that is to be discussed, I can concentrate on modernity in the course of explication.

The Criteria of Justice

If we assert that X norm(s) or rule(s) Is (are) unjust, we pass a judgement. This is a value judgement and, simultaneously, a statement of fact. In its form, this judgement does not differ from judgements passed within the framework of static-formal justice, such as ‘Act X is unjust’, which is a shorthand formulation of an evaluative sentence deduced from a statement of fact (e.g. ‘A is innocent; B nevertheless sentenced him, which is act X; therefore act X is unjust’). However, the identical form covers a quite different procedure. If norms and rules are taken for granted, it is also taken for granted that, if A acts in such and such a way, B will (for she or he should) act in this way as well, and, if B acts otherwise, injustice has, by definition, taken place. This is why evaluation follows from the statement of facts, even if the process is obscured by the shorthand formulation (‘Act X, the act of B, is unjust’). Should we, however, assert that the norms and rules themselves are unjust, the procedure follows ‘In reverse’. I have certain values, norms, virtues, principles or maxims in mind from the perspective of which I evaluate (or interpret) facts as unjust. The facts are de facto existing (valid, observed, legitimized, customary) norms and rules themselves. In respect of the application of ‘taken for granted’ norms and rules (static justice) matters can end up at an empirical consensus about the truth or falsity of the evaluative statement, and, if rules are applied, this is never In doubt. (In case of a foul, the referee of a soccer match should grant a free kick to the offended party.[1]) However, if we state that X or Y norms and rules are unjust (dynamic justice), there will always be others who state that they are just. If there were no one to make such statements, the norms and rules in question would no longer be existent, and so there would be nothing to test and reject. [2]

At this point I accept Baler’s proposal that we distinguish between verification-falsification on the one hand, and validation-devalidation on the other.[3] If norms and rules are taken for granted (static justice), the truth of the evaluative statement (’this is just or unjust’) can be verified or falsified. However, in the dynamic procedure when norms and rules are rejected as unjust and the proposal has been made to substitute alternative norms and rules for the existing ones, the truth of the evaluative statement can neither be verified nor falsified, only validated or devalidated. And, as I have briefly pointed out, such statements are simultaneously validated by some, devalidated by others. Norms and rules can be devalidated as unjust if the critics of the norms and rules have recourse to normative criteria the observance of which contradicts the norms and rules which are to be devalidated; if the statement ‘These norms and rules are unjust’ follows from the observance of those criteria.[4] Finally, critics of norms and rules can make claims to alternative norms and rules they believe would be just because they would be in harmony with the observed criteria.[5]

If we undertake a hypothetical survey of different instances where critics of certain norms and rules denounce them as unjust, we can divide those criticisms into two ideal types. Either it is claimed that another idea of justice should constitute the norms and rules in one or another form of social relations (and, in an exceptional case, in all of them), or it is claimed that the standards of the idea of justice should be redefined. Obviously, both can be claimed. The questions raised here are thus the following.

To whom should the same thing be due (while it is not)?
What is the same thing that should be due (while it is not)?
What should be due according to merit and excellence (while it is not)?
How should merit or excellence be interpreted for which those things are due (while they are not)?
What should be due to someone who belongs to X, Y and other essential categories (while it is not)?
What should be the ranks to which something should be due (a new kind of ranking)? What should be due to a certain rank (while it is not)?

Let me repeat: critics of norms and rules devalidate existing (still observed) norms and rules by invoking normative criteria whose observance contradicts those norms and rules.

Such criteria can be different in kind. They can be (1) particular principles (or ideas), (2) moral norms and practical maxims (in the Kantian understanding of the concept), (3) pragmatic maxims or (4) substantive values. I wish to set forth the following hypothesis: the first three kinds of criteria are either directly or in the last instance, rooted in substantive values (in one or in several). Ultimate criteria are always substantive values. In modernity, to which for the time being I restrict my analysis, the ultimate substantive values are universal values. Universal values themselves can be interpreted either as universal principles or as universal goals (ends). One substantive value is, however, excluded from the criteria of justice, the value ‘justice’, and it stands to reason why. If someone devalidates existing norms and rules as unjust and raises a claim for any alternative system of norms and rules considered by that person as just, it must be argued why this is so, and justice, as value, cannot be part of this argument because it would be petitio principii, which is not a rational answer to a problem. Recourse must be had to another value, and it should be proved that the accepted value (or the one recommended for acceptance) is completely observed in the alternative set of norms (and this is why they will prove just).

Particular principles (Ideas) can perform the devalidation of norms and rules in cases I may describe as instances of a ‘cultural gap’, to paraphrase Ogburn’s expression. It is relevant to speak of a ‘cultural gap’ if there is inconsistency among the different sets of norms and rules In a given society. A particular principle of this kind is the principle ‘equal wages for equal work for men and women’ in a society where the equality of the sexes has already been recognized in certain important social relations (members of both sexes are equally regarded as legal persons, have equal civil rights, and the like).

In a democratic society, devalidation of norms and rules by particular principles is a normal and, in a manner of speaking, an everyday occurrence. Moreover, it is a constant and continuous procedure. There are always certain norms and rules (even many) that we consider unjust. A great proportion of public debate centres on such issues.

Not everyone who devalidates norms and rules by particular principles has recourse to ultimate and substantive values. On occasion, reference to other norms and rules and to the inconsistency between these and the devalidated one may suffice for that purpose. But, even so, one can at least have recourse to such ultimate values if one chooses to argue in full.

It is not always possible to reject norms and rules as unjust from the vantage point of a moral virtue or value or maxim, even if they can be rejected on the grounds of being bad, wicked or inhumane. Both moral norms (virtues, values) and moral maxims serve as frames of reference for such a procedure if they satisfy the third requirement set forth above (to propose an alternative set of norms or rules). Devalidation based on moral maxims is a sub-case of devalidation based on moral norms. If one devalidates norms and rules from the vantage point of a moral maxim, one does not devalidate one or another set of norms and rules, but all norms and rules the observance of which contradicts the moral maxim. If one subscribes to the famous Kantian maxim that no person should serve as mere means for another person, one can thereby devalidate as unjust all norms and rules the observance of which implies the use of others as mere means, provided that one is ready and able to argue for the acceptance of alternative norms and rules the observance of which is in harmony with the moral maxim in question.

The rejection of norms and rules as unjust from the vantage point of a moral maxim is as rare as the rejection of norms and rules on the basis of particular principles is frequent. People who devalidate one or another norm or rule by resorting to a moral value do not normally simultaneously test and query all of them. But revalidation or devalidation by moral maxims is tantamount to the simultaneous devalidation (or eventual revalidation) of all norms and rules. The procedure requires complete consistency and conscious consistency. However, that which is rare is not unheard-of. There are people who reject all kinds of violence and all norms and rules which enjoin or even permit the use of violence (for example, they are pacifists, and reject even the concept of the ‘just’ war).

If a pragmatic maxim posits one or another concrete substantive end (goal) as just, everyone who raises the claim for the realization of this (just) goal rejects norms and rules the observance of which prevents the realization (achievement) of that goal. In a particular field, norms and rules are regarded as so many means of preventing, or eventually achieving, the realization of the goal in question. In the course of establishing a welfare state, several former norms and rules in particular fields are devalidated as ‘unjust’, and replaced by others regarded as consistent with one or another substantive (particular) aim, such as a national health scheme, or blanket access to higher education. Naturally, there still exist substantial numbers of people who consider the new norms and rules unjust from the perspective of another substantive goal, a particular principle, and the like. This has been mentioned as an aside because the reader should not forget that we are dealing here with the concept of dynamic justice.

As mentioned, whether one devalidates norms and rules as unjust through the use of a particular principles, moral values or maxims (imperatives), or pragmatic maxims, the rejection of each and every system of norms and rules is, in the last instance, rooted in a substantive value. In modernity, there are two universal values in which all principles or maxims are rooted: freedom and life.

This statement can be verified with all modern versions of the ethico-political concept of justice, complete or incomplete. It can also be verified by reference to the various declarations of human rights. When philosophers pondered the ‘just society’, they always designed the constitution, laws, norms and rules of this society to ensure either the life of all (Hobbes) or the freedom of all. Life and freedom (or both), as universal values, are presupposed, and in this sense they are axiomatic. Unlike in Rawls’s model, life and liberty are not deduced from justice, but the reverse: a society (or constitution) is stipulated as lust in so far as it ensures the life and/or liberty of the citizens. In the idea of justice, recourse has been had to the substantive values of freedom and life; in the American Declaration of Independence, or in the French Declaration of the Rights of Man and Citizen, to both.

The assertions that there are only two universal values in modernity, and that all principles and maxims which devalidate norms and rules as unjust have, in the last instance, recourse to these two values, do not yet seem convincing. If we cast even a cursory glance at the discussion of principles and maxims and at the cases which exemplify their application, we rather see equality as the guiding common value in all of them. Theories of natural law stress not only that we are born free and that we all have a right to life, but also that we are all born equally endowed with reason and conscience. Furthermore, if we define ‘conscience’ as ‘Involvement in practical reason’, as I have done elsewhere, 6 this would in itself suffice to posit reason (rationality) as yet another ultimate value. Thus we would end up with not two but four universal values: life, freedom, equality and reason.

In chapter 1 I argued for the assertion that equality and inequality are not natural propensities. People are unique. Equality and inequality are created by norms and rules. People who belong to the same social cluster are socially equal because the same norms and rules apply to them. I have also pointed out that we can (and should) claim that humankind should be the overarching social cluster, but only under the condition, suggested by our sense of justice, that the common norms and rules should be such as to diminish, or eventually abolish, domination, force and violence. Put simply, the common norms and rules which constitute the overarching essential social cluster should ensure freedom. If we do not posit the common norms and rules constituting humankind, the overarching social cluster, as rooted in freedom, our sense of justice will raise a powerful protest against the recommendation that humankind should be the overarching social cluster at all. I have also argued that we cannot will that humankind should be the only social cluster, because rejecting the plurality of normative systems (ways of life) is tantamount to rejecting freedom. The claim to equality is subject to the claim to freedom. In other words, equality cannot be considered an ultimate universal value.

Moreover, whenever people claim equality, they claim equality in something. ‘Something’ can stand for many things, but all of them can be reduced to two forms of equality: equality in freedom(s), and equality in life chances (termed by the popular political philosophy of the Jacobin period égalité de fait). Anatole France’s famous apercu about that equality of bourgeois society, which equally forbids rich and poor to sleep under the bridge, points out the injustice created by the blatant inequality of life chances, even if equality in a kind of freedom (equality before the law) is indeed guaranteed.

The claim to equality of freedom can encompass, first, two claims, where both claims can be related, and secondly, two interpretations of freedom. The first interpretation of freedom is the democratic, the second is the liberal. (Isaiah Berlin termed these ‘positive’ freedom and negative’ freedom, respectively.) One can claim that each person should have equal rights to participate in all decision-making processes concerning his or her community or body politic, and also that each person should have the equal right to do so and the possibility of doing so. Thus two different claims pertain to one interpretation of freedom, the democratic. Next, one can claim that each person should have the right to decide his or her own fate, to choose his or her own way of life, to do anything that does not prevent others from doing what they like doing, and one can also claim that each person should also have the possibility (life chances) of practising this right. Thus two different claims pertain to one interpretation of freedom, the liberal. Both claims and both interpretations can be brought together under the following formula: ‘The norms and rules of society should be such as to ensure to every person the right (and eventually the ability) to participate in all decision-making processes concerning his or her community or body politic (which is the pursuit of public happiness), and, in consequence, all norms and rules, whatever social cluster they may relate to, should ensure the same.’ And further: ‘The norms and rules of society should be such as to ensure to every person the right (and eventually the ability) to decide upon his or her own fate, to choose his or her own form of life (which is the pursuit of private happiness); thus each and every person should have the right (and the equal ability) to leave one social cluster and join another.’

It is obvious that in the above formulation equality in freedom and equality in life chances are conceived of as being actualized simultaneously. It is equally obvious that equality is regarded not as an independent universal value, but rather as a condition of the complete and unfailing actualization of the values’ of life and freedom. Furthermore, the idea ‘to each the same thing’ is being applied here without making the persons involved each other’s equals. In so far as norms guarantee freedom, they guarantee equal rights. However, people can still choose to be unfree, or else freedom would not be guaranteed. In so far as norms guarantee equal life chances, they do not exclude unequal life chances, for some will make better use of these equal chances than will others. This is the case with all norms, though not with all rules. One person will live up to moral norms completely, another to a substantial degree, a third not at all, even if their respective life chances are entirely the same. Moreover, there are primary values in the ‘good life’ which cannot be either guaranteed or ‘distributed’ by any norms and rules, for the simple reason that they are beyond justice. Love is one of these values, though it is no less sublime a value than freedom or life. No idea of justice applies to love. Not even Christianity, which preaches love, the love of your enemy included, commands you to love each and every person equally, or according to merit and excellence and the like (in fact, it demands inequality in love, for the believer ought to love God above anyone else).

Although logically there is no conflict between equality in freedom and equality in life chances, since we can lay claim to norms and rules which encompass both, in reality there are such conflicts. It was precisely this fact that prompted the attempt to raise equality to the level of universal values; moreover, the claim that it should be the supreme (ultimate) value. In this attempt, égalité de fait is indeed interpreted as the factual equality of all, and not as the equality of life chances. Since all people are (ontologically) unique, and as wholes incommensurable, such a project includes the acceptance of a dictatorship over needs, values and opinions. [7] To cut a long argument short, égalité de fait is, in this extreme interpretation, a self-contradictory project, for it excludes equality in freedom, both positive and negative (some practise the dictatorship; others are subjected to it). Accordingly, those who recommend the acceptance of ‘equality’ as a human universal, and the supreme one, do not choose equality as a human universal at all. To repeat, equality cannot be conceived as a human universal, because it is conditional and not unconditional.[8]

I have argued that equality does not qualify as an ultimate universal value: that it is, in fact, not such a value because the use of equality as a universal is self-contradictory. I shall follow a similar path in my discussion of reason. By way of introduction, we must probe further into the problem of equality.

All of us, all human beings, are equally born with reason. Should this statement have the formulation, ‘All human beings are born with the endowments to appropriate the use of ordinary language, the use of man-made objects, and the observance of the norms and rules of their human community, and all human beings are equally born with such endowments’, the statement is undeniably true. However, to be born equally with these things does not mean that our endowments are equal (or that we are equals in our endowments). Even less does it mean that every human being makes equal use of his or her endowments. Thus, here as well, ‘equality’ refers to the condition(s).

To act according to reason (speech acts included) means to act rationally. One is a rational being if one is competent in observing norms and rules the observance of which is the prerequisite of self-preservation as an adult member of the relevant societal environment. The application of the norms and rules to everyone to whom they indeed apply is, by definition, included in the ‘observance of norms and rules’. Thus static justice is a rational procedure. Static ‘justice is, in the form analysed in chapter 1 (on the formal concept of justice), practised by the kind of rational procedure I have termed rationality of reason’.[9] It is obvious that, if reason is understood as the practice of ‘rationality of reason’, ‘reason’ cannot be the value the observance of which devalidates as unjust those existing norms and rules which are, for their part, observed rationally. However, I have distinguished between two attitudes of reason, and I have termed the second ‘intellect’. ‘Rationality of intellect’ (acting according to reason as Intellect) encompasses all acts, speech acts included, which have recourse to at least one norm the observance of which is juxtaposed to the observance of at least one norm or rule ‘taken for granted’. Consequently, dynamic justice presupposes the attitude of ‘rationality of intellect’. Obviously, reason cannot serve as the universal value in which the principles and maxims of dynamic justice are ultimately rooted, because only one attitude of reason, not reason as such, may qualify for this position.

It seems obvious at first glance that rationality of intellect indeed qualifies for such a position. Rationality of intellect devalidates norms and rules taken for granted in a rational procedure. Or, in a more cautious formulation, at least the highest (the most adequate) kind of rationality of intellect is tantamount to the performance of such a rational procedure. If rationality of intellect devalidates certain norms and rules taken for granted by observing at least one (alternative) norm, devalidation happens in the form of rational argumentation. The repositories of rationality of intellect argue for the observance of the norm they already observe; they simultaneously argue against the observance of norms and rules taken for granted, and, In so doing, against the validity of those norms and rules. Thus the process of devalidation is always an argumentative process.

All this considered, rationality of intellect only formally qualifies to occupy the position of an ultimate universal value in modernity; it does not, however, qualify substantively.

Since any norm can be juxtaposed to any norm and rule taken for granted, and since one can argue for the rejection of any norm and rule from the standpoint of an alternative norm, the question, ‘Of which kind should the alternative norms be?’ has been left wide open. Among others, one can subscribe to the value ‘elite’. One can also formulate the norm ‘Society should be such as to engender a new ruling elite, a new superman’, thus devalidating all democratic norms and rules. This position can be argued for rationally. As a result, the full argument on behalf of rationality of intellect can also devalidate universality. An obvious objection to this is that an argument is only rational (in the sense of communicative rationality) if a (domination-) free consensus omnium is virtually hypostasized. However, if we formulate such, as Habermas normally does, then we have already accepted freedom (equality in freedom) as the ultimate value. Should we take recourse to the ‘Ideal speech situation’ as the idea of a situation in which rational communication can indeed hypostasize a consensus omnium, we have already posited life as a supreme value (in the form of equality in life chances for the free use of reason). The concept of rationality of intellect, formal as it is, does not encompass the value of freedom or life unless we so define it, unless we make these substantive qualifications. Thus rationality of intellect does not qualify as the ultimate (or as one of the ultimate) universal values, because the norm of rational argumentation must be such as to encompass the values of freedom and life (or at least one of them).

Thus, there are only two ultimate universal values in modernity: freedom and life. Equality is the condition (in the forms of equality in freedom and equality in life chances) under which any universal goal or any universal principle based on universal values can be posited or formulated. If this condition is not met, neither goals nor principles can be thought of as universal. Rationality of intellect (argumentative rationality) is the procedure by which we revalidate or devalidate any norms and rules with universal principles constituted by the ultimate values of life and freedom. To put it succinctly, the procedure of rationality of intellect is the universalistic procedure if universal principles regulate this procedure. This can also be formulated the other way round: the values of freedom and/or life can only be observed as ultimate-universal values if norms and rules are devalidated by arguments and if all norms and goals rooted in the values of life and freedom are argued for rationally.

Irrespective of whether or not norms and rules are taken for granted, there are times when a moral decision has to be taken in the situation of a conflict of duties. Conflicts of duties occur if at least two moral norms or values can guide our moral choice and both or all, if observed, enjoin us to take different courses of action. – If a conflict of duties is the case, the actor must give priority to one of the norms, observing this norm and infringing the other(s). Which norm should be given priority in a concrete situation is to be decided by good judgement (practical wisdom, phronesis).

If we recall all that has been said about the two (supreme and universal) values of modernity, and about the procedure of devalidating (or revalidating) norms and rules taken for granted as unjust (or just) under the guidance of those universal values, we shall immediately become aware of an analogous problem, or rather an analogous conflict situation. Although the universal principles of freedom and life do not logically contradict each other, for their simultaneous observance can be conceived without logical contradiction, there are innumerable concrete situations where our actions cannot be guided by both principles, or at least not by both equally, cases where we must decide for one against the other by giving one priority over the other in our concrete choice. If we assume that the actor accepts the validity of both ultimate values and both universal principles unconditionally (and the analogy with the conflict of norms would break down if we did not do so), the same actors cannot observe both these values and principles unconditionally, if they must give priority to one over the other in any concrete situation.

I wish to set forth the hypothesis that all value discussions which remain unsettled in modernity can, finally, be reduced to two types: first, those where freedom and life are interpreted in eventually conflicting ways; and, secondly, those where there is a conflict between the values of freedom and life. The first type of conflict, although it remains sometimes unsettled, can in principle be settled here and now.[10] However, the second kind of conflict cannot be settled – at least, not in certain cases, even the most important ones.

The two value conflicts discussed by MacIntyre (abortion and taxation) are undoubtedly conflicts between life and freedom (one interpretation of freedom as against life, one interpretation of life as against freedom). We can add the current value discussion about pacifism to this list, or the current value discussions between movements which opt to defy freedom if life chances can be improved, and those which reclaim freedom even at the cost of worsening life chances. Although I believe that freedom and life chances for all can simultaneously be improved, such an option is not open in all concrete situations of decision.

We must live with the awareness that conflicts between life and freedom may occur, with the awareness that, even if we uphold both universal principles, we cannot observe both of them unconditionally in many highly sensitive situations. If we ask questions such as the following – Is there a ‘just war’?, ‘Can violence be just?’, ‘Can depriving a person of his or her liberty (eventually life) be legitimately called ‘justice’?’ ‘Are we authorized to alter the life chances of one social cluster in order to improve the life chances of another, and, if so, in what cases, how, and under what conditions?’, ‘Are we entitled to save the life of a person against his or her will (for example, with life-support machines)?’, ‘Can people be freed against their own will?’, ‘Can we opt for genetic engineering in order to increase life expectancy?’ – then we are living with precisely this awareness.

I have discussed briefly universal values/principles as the ultimate criteria of dynamic justice in modernity. However, it should always be borne in mind that the history of dynamic justice (and of the concept of dynamic justice) reaches back long before the emergence of modernity, before the universalization of the values of freedom and life and the principles related to them, although neither dynamic justice nor its concept can be regarded as human universals. The procedure of dynamic justice – devalidation or revalidation of norms and rules taken for granted – can be performed at any time when people have recourse to any value, norm, virtue, rule, principle or maxim which has already been accepted (validated), at least somewhere and somehow, and from the vantage point of which the statement ‘X norm or rule is unjust’, or, conversely, ‘X norm is just even if it is rejected or infringed’, can rationally be supported as a true statement. Values cannot be ‘invented’ by any subject, but subjects can offer new interpretations of pre-existing values, or can formulate principles to clarify them. In pre-modern times, contradictions between the validity and the actualization of a value, contradictions between the abstract and concrete facets of the same norm, did serve as points of departure for dynamic justice. Clearly, this point of departure offers itself in modern times as well. Values and principles can be obtained or extracted from the set of norms and rules of our society or of a society other than ours (and this still happens today), and they can be obtained and extracted from objectivations-for-itself[11] created in earlier periods (works of art, philosophies, religions, and so on). All this happens today as well, only the empirical variety of such procedures in contemporary dynamic justice has been neglected here for the sake of analytical clarity.

The Sense of Justice

In chapter 1 I referred to the ‘sense of justice’. I suggested that it Is the ‘sense of justice’ that denounces the use of different standards as double standards if we come to judge acts of domination, force and violence. Thus the ‘sense of justice’ makes the claim that humankind should be the overarching human (social) cluster. I have therefore set forth the hypothesis of the existence of a ‘sense of justice’ without supporting it with any evidence other than the denunciation of the use of ‘double standards’. Nor has anything been stated at all about the sources, propensities and functions of that sense (if such exists).

I now make the following theoretical proposal: the ‘sense of justice’ is moral sense concerning the matters of justice and injustice. There is nothing novel in this idea. Roberto Mangabeira Unger writes of Confucianism that

It held that the moral sense exists in man either as a general disposition toward humanity (jen) and righteousness (i), from which standards might be drawn, or as a tacit code of conduct. Under proper conditions of upbringing and of government, this moral sense could develop so as to ensure harmony in the individual, in society.... The aim was to elicit latent, pre-existing notions of propriety.[12]

In order to clarify the narrower category, ‘sense of justice’, I shall first briefly discuss the broader one, ‘moral sense’.

The notion ‘sense’ carries two connotations: that of mental ability (in such expressions as ‘common sense’, which can be understood also as recta ratio), and that of ‘feeling’. None the less, irrespective of whether the first or the second connotation is the stronger in the use of the notion ‘sense’, it always refers to an ability to discriminate between good and bad, good and evil, beautiful and ugly, true and false, useful and harmful, right and wrong, correct and incorrect, and to discriminate between these qualities in action and in judgement. Having a ‘good sense’ of something means being able to tell, almost without fall, true from untrue, useful from harmful, beautiful from ugly, correct from incorrect, in the particular field under consideration, be it music, business, mathematics or politics. Obviously, it is possible to have a ‘good sense’ of something only if one is cognizant of the norms and rules of the specific field. If I suggest, ‘All men are born with reason’, I suggest thereby that all men are born with the ability to discriminate according to all categories of value orientation as presented (and embodied) in the primary set of norms and rules of the world they have been born into.[13] But the statement ‘All men are born with reason’ does not necessarily suggest that everyone is born with the ability to discriminate in other spheres of objectivation, for not everyone comes in fact to know and practise the norms and rules of these ‘other’ objectivations. Even less does this statement suggest that everyone is born with a good sense of discrimination in relation to these objectivations.

If one accepts this course of interpretation so far, moral sense must be tantamount to the ability to discriminate between good and evil as well as between right and wrong, provided that at least one facet of the latter distinction includes discrimination between good and evil. (If ‘right and wrong’ stands for ‘correct and incorrect’, this is indeed not the case.) Everyone is born with moral sense, because the imperative that everyone should discriminate properly between good and evil (and, with the above-mentioned proviso, right and wrong), implies that everyone can do it.[14] (Kant was right: if you should do something you can do it.) However, as with the comparable proposition (discussed earlier) that every human being is equally born with certain endowments, the statement ‘Everyone is equally born with moral sense’ is not tantamount to the statement ‘Everyone is born with equally good moral sense’, only to the assertion ‘Everyone is equally born with good moral sense.’

The statement ‘Every human being is born with moral sense’ implies that every healthy specimen of our species has the ability to discriminate between good and evil (or right and wrong). If this ability is absent, the person is morally insane (‘moral insanity’ is an extremely accurate expression). The statement ‘Everyone is equally born with a good moral sense’ implies that everyone can do what is good (that which one should do), even if one does not do it because of contrary motivations or goals the pursuit of which might include the use of good sense, but in terms of another value orientation (for example, useful-harmful ‘for me’). The assertion ‘Everyone is born with equally good moral sense’ implies, though, that it is equally easy (or difficult) for everyone to do what they should do (and can do), or at least that this is so under similar or identical conditions. Apart from the fact that we have ample empirical evidence proving that this assertion is not true, there is a perfect analogy here with all possible cases of ‘good sense’: we are equally born with ‘good sense’ (of something), but we are not born with equally good sense (of the same thing). In the case of good moral sense, the empirical evidence of this is represented by the type I have termed ‘the transculturally good person’, [15] a virtuoso of morality. Yet to practise ‘good moral sense’ does not require virtuosity.

I began this section with the assumption that the notion ‘sense’ has two connotations: mental ability (as recta ratio) and feeling. Philosophy has invented the idea ‘reason’ as an evaluative abstraction in reference to ‘good sense’ and ‘good practical sense’. The same is obviously true of ‘moral sense’. It has two aspects: discrimination, and involvement in the positive side of what has been discriminated (good or right). As suggested, the attitude of reason can be called ‘rationality of reason’, if ‘taken for granted’ norms and rules are being observed. The observance of such norms and rules presupposes positive involvement in both the norms and their observance. I have elsewhere defined ‘to feel’ as ‘being involved in something’.[16] The feeling of shame is our involvement in the ‘taken-for-granted’ norms and rules and their observance. Norms and rules are the external authorities of the judgement of conduct. if certain norms and rules are rejected from the standpoint of observing alternative values, norms, rules, virtues and the like, then rationality of intellect (practical reason proper) becomes the authority of judgement in human conduct. I have defined conscience as the involvement in this (Internal) authority as the secondary moral feeling (secondary historically, not as far as its sublimity is concerned, both philogenetically and ontogenetically).[17]

The reader must further remember that norms and rules can be devalidated from the standpoint of a value, virtue or moral norm as bad, wicked, evil, even if not as unjust (under certain conditions, this term would not make sense). Equally, we can reject actions by denouncing them as evil or wicked, but not as unjust. This may happen the other way round as well: we may appraise an unjust act as meritorious or supererogatory. All this only indicates (and this has been presupposed in the first place) that ‘moral sense’ is a broader category than the ‘sense of justice’. But no moral sense can approve of norms and rules as good or sacred if they are considered unjust. Likewise, and this is only another formulation of the same assertion, if a set of norms and rules is considered unjust, it cannot simultaneously be judged as ‘good’. This again suggests (something presupposed in the first place) that the ‘sense of justice’ is a specific manifestation of the ‘moral sense’.

It stands to reason that, if we take the position of the ethical concept of justice, and understand justice exclusively as righteousness (the sum total of virtues), the distinction between ‘moral sense’ and the ‘sense of justice’ is an empty one. But, if we include sociopolitical justice in the concept of justice, the distinction will be of the utmost importance.

Let us consider static justice. If norms and rules apply to a social cluster, the ‘matter of justice’ is applying the same norms and rules to each and every member of that cluster consistently and continuously. In other words, the ‘matter pertaining to justice’ is the right application of these norms and rules. ‘Right’ also means correct. In respect of ‘following rules’, ‘right’ is identical with ‘correct’, although this is not so if norms are to be observed. A ‘correct person’ is a just person in the following of rules. I stated in chapter 1 that the norms and rules which constitute a social cluster are by no means mainly of moral provenance. But I also stated that the consistent and continuous application of any norms, moral or not, is a moral matter. Thus the concept of ‘right’ (right judgement, right decision) implies the concept of ‘good’, and, as a consequence, the distinction between ‘right’ and ‘wrong’ (as well as between ‘correct’ and ‘incorrect’) includes discriminating between good and evil, even if the norm or rule to be applied ‘rightly’ has nothing whatever to do with morals.

Let us now consider dynamic justice. If we reject norms and rules as unjust, we normally do not call them unjust because they are not (or cannot be) followed or observed (even if sometimes we seem to argue in this manner): we rather assert, first, that because they are unjust their observance is unjust; secondly, that because they are unjust they cannot be (or are not) observed or followed; thirdly, that because they are unjust they should not be observed or followed; and, fourthly, that in spite of their being unjust they are and should be observed and followed until they are replaced by an alternative set of norms and rules considered lust. In all these cases the distinction is made according to whether the norms and rules themselves are right or wrong and/or whether their observance is right or wrong.

One can, theoretically, reject any sets of norms and rules. However, as mentioned, one cannot reject all of them as unjust. We reject norms and rules as unjust if we can prove (or substantiate) that the rejected norms are wrong. Unlike in the sphere of static justice, ‘wrong’, in this case, cannot stand for ‘incorrect’, and for obvious reasons. ‘Right’ only stands for ‘correct’ if we are speaking of rules that are being followed, and not norms that are being observed. Rationality of intellect always has recourse to norms, values, principles, maxims and the like, but it cannot have recourse to rules. It can make a claim, as it indeed does, for an alternative, and right, set of rules to be substituted for the existing ones, but these are not yet rules. Of course, one can reject existing rules as ‘incorrect’, but only if the value on the basis of which this judgement is passed is technical in character. In this case, though, the rejected rules are not devalidated as unjust.

Purely moral (interclusteral) norms can also be devalidated by moral maxims or by interclusteral norms in statu nascendi. But they can only be devalidated as unjust if they have served as legitimizing moral norms for a socio-political system rejected as unjust. If this is not the case, the devalidated moral norms can be rejected not as unjust but as inhumane or wicked, or simply as irrational.

Thus neither merely technical rules nor merely interclusteral moral norms are normally devalidated as unjust (or revalidated as just). None the less, socio-political norms and rules are devalidated and revalidated as unjust/just. Interclusteral moral norms can perform the process of devalidating and revalidating socio-political norms as unjust/lust, even if they cannot be devalidated or revalidated as unjust/just. But merely technical rules (or goals) cannot even perform the process of devalidation (revalidation), let alone be judged just/unjust.

We devalidate socio-political (social and/or political) norms and rules as wrong, or revalidate them as right. The distinction between ‘right’ and ‘wrong’ includes the discrimination between good and evil, though the former is not identical with the latter. I shall argue for this thesis in chapter 4, where the three great problems of the socio-political concepts of justice-retributive justice, distributive justice and the problem of the ‘just war’ – will be discussed. If we assume that the hypothesis has already been substantiated, we can come to the following conclusion: the sense of justice is moral sense in its capacity to discriminate between ‘right and wrong’, if at least one aspect of the latter distinction includes the discrimination between good and evil. If all aspects include this discrimination, we are speaking of justice as righteousness. If not all facets of the distinction include the discrimination between good and evil, we are speaking of socio-political justice. A judgement can be just, in both cases, if the mental process of reflective and determining judgement is conclusively and consistently performed.

The discrimination between right and wrong is performed by judgement (both determining and reflective). Sense of justice is actualized by judgement. This is where I must make a clear distinction between ‘sense of justice’ and ‘good sense of justice’, which so far has not been done.

‘Sense of justice’ is the ability to discriminate between right and wrong (if at least one aspect of this distinction includes the discrimination between good and evil), both in determining and in reflective judgement. Everyone is born with the ‘sense of justice’, for everyone can make judgements by means of this discrimination. Everyone is endowed with both the cognitive and the emotive aspects of the sense of justice.

Everyone is equally endowed with the good sense of justice as it is actualized in static justice because everyone can do what she or he ought to do – namely, pass just judgements. It is perhaps superfluous to add that this does not mean that everyone actually passes good judgements concerning right or wrong.

Yet not everyone is equally endowed with the good sense of justice as it is actualized in dynamic justice. This statement means the following. Everyone learns how to be just and how to pass good judgements according to the existing norms and rules (static justice). What you should do, you can do. However, construing alternative (imaginary) norms and rules and devalidating existing ones as unjust is not an ‘ought’ for all human beings. Not all human beings can perform this procedure. One cannot assume that the heightened intensity of both the mental and the emotive aspects of judgement is present in every human being. There are always a few supersensitive but not necessarily superintelligent people who make the first steps in this direction. The more numerous these people are, the more they create a ‘social climate’ wherein the procedure of dynamic justice itself becomes taken for granted. Of course, the statement ‘The procedure of dynamic justice itself becomes taken for granted’ is not tantamount to a statement that the norms and rules newly recommended become taken for granted. This would be contradictory. It is only in modern times that the procedure of dynamic justice has become more and more, if not completely, taken for granted. This being so, now, but only now, can it be said that every human being is endowed with a good sense of justice as it is actualized in dynamic justice. Now, and only now, everyone can, from early childhood onwards, view existing (concrete) norms and rules from the vantage point of ideas, principles and values. Now, and only now, can judgement be ‘well-informed’, where the qualification ‘well-informed’ includes factual and judgemental information about social, cultural and political patterns, procedures, options and perspectives on an incommensurably wider scale than our immediate life world. Despite this, the statement ‘Everyone is endowed with an equally good sense of justice’ remains no less false than the statement ‘Everyone is endowed with an equally good moral sense.’ We can even say that the first statement, as well as the second, is generally false, and not only in our times.

The distinction between moral sense in general and the sense of justice in particular has still further ramifications. It is of the utmost importance that the sense of justice discriminates between right and wrong, and not between good and evil (even if the latter distinction is included in at least one of the aspects of right and wrong, respectively), whenever we ask the question ‘How far are right norms binding?’ This question cannot be raised about moral norms (the norms of good) for they are by definition binding. In the case of a moral conflict (if two or more equally binding norms cannot be simultaneously observed, and I must give priority to one), I am obliged to justify my decision. And I can only justify it in the clear awareness of the morally painful fact that I have infringed one moral norm by giving priority to another. Universal principles as moral maxims operate in exactly the same way as has been argued in relation to the problem of value discussion (the conflict of life and freedom). However, if we say, ‘These norms and rules are unjust’, and if we recommend an alternative set of norms and rules as substitutes – to put it simply, if we state, ‘These norms and rules are wrong’ – such a statement is binding as far as judgements are concerned, but not necessarily in respect of direct actions. If we state that the ensemble of rules called ‘the market’ is unjust (wrong), and still go to the supermarket to shop, we do not need to justify our actions: we can hardly be expected to act otherwise. We can state that a particular set of norms and rules is wrong and still be justified in acting according to that same set of norms and rules (unless the moral aspect of the ‘wrong’ norms and rules – bad, evil – enjoins us to act otherwise). Kant’s distinction between the private and public use of our reason is relevant here. If we state, ‘These norms and rules are wrong’, the very statement is binding in public debate because we ought to argue for the claim for devalidation in full, and are obliged to present alternative and right (alias just) norms and rules as substitutes for the existing ones. However, the S me statement is not binding in the so-called ‘private sphere’, in actions performed in accordance with the existing norms and rules, unless such actions also infringe moral maxims (norms). In the latter case, we can still continue to act according to norms and rules denounced as unjust if, and only if, we can justify this practice wit the observance of a moral norm (maxim) other than the infringed one. We cannot be justly called ‘unjust’ simply because we observe norms and rules we reject as unjust (for ‘right’ is not binding in the same way and in the comprehensive manner that ‘good’ is). But we can justly be called rascals, hypocrites or insincere if we conform, in speech or action, to the very element of the wrong norms and rules that involves the morally bad (evil). Also, we can justly be called biased (and thus unjust) if we publicly argue for the devalidation of one norm or rule and yet refrain from arguing for the devalidation of another norm or rule which contradicts our professed values or norms just as much as the former. Finally, we can be justly called hypocrites and unjust if we observe certain norms and rules but censure the same behaviour in others.

I have assumed that the sense of justice devalidates norms and rules as wrong, and not as evil, even allowing that at least one element of the devalidated norms and rules includes the morally evil. I have concluded from this that the devalidation of norms and rules is binding in judgement (one cannot argue that one norm or rule is unjust but another norm or rule of the same kind is just), but is not necessarily binding in action (one can still observe norms and rules one has rejected as wrong and unjust, with the provisos discussed above). Now, how can this distinction be made in the case of the sense of justice which transforms different standards into double standards?

To judge in accordance with the sense of justice is unconditionally binding. If someone denounces the application of double standards but makes an exception of his or her own country, or of a personally revered or highly valued country, culture or political system, that person can justly be called unjust or a hypocrite.

Accepting this, what can be said about action? Let us assume that everyone behaves and acts exclusively in his or her socio-political environment and culture. This is clearly a simplification, but it is a worthwhile point of departure. If I state that, in comparison with other cultures, my own culture (system) includes more (or more serious) acts of domination, violence, force and coercion (that in this respect it is worse – less just – than others), then my speech act is tantamount to direct action. More precisely, the speech act increasingly constitutes direct action the more that my statement approaches the pure truth. (This is not the case if I pass just judgements about cultures or socio-political systems other than mine.) It is binding upon me to stick to my judgement and to argue for it rationally, but, the more my statement is true, the more I shall myself be subjected to the acts of domination, force, violence and coercion that I denounce. When I say, ‘It is binding to stick to my judgement’, I mean that it is a moral act. However, the statement that my own socio-political system or culture is wrong and unjust (in that its norms and rules include a high degree of domination, force, violence and coercion) is made from the standpoint of the values of freedom and life. If professing such a judgement publicly endangers my freedom and life (or eventually the freedom and life of my relatives and friends and of those who have simply listened to my judgement without denouncing me), then my judgement is absolutely true (and not even arguable), but it is not morally binding for me to profess this judgement publicly. This would be a supererogatory act. If my ultimate values are life and freedom, the observance of these values cannot compel me to sacrifice my freedom and life. The same applies to direct action. If I judge that the norms and rules of my socio-political system or culture are wrong and unjust, in that they entail a great amount of violence, force, coercion and domination, I am bound to act according to my belief that they should be changed, so long as I do not endanger my life or freedom or those of others. If acting so does not endanger my life or freedom, the statement ‘The norms and rules of my sociopolitical system or culture are wrong and unjust’ can still be true, though open to argument. but an assertion such as ‘The norms and rules of my socio-political system or culture entail a far greater amount of violence, force, coercion and domination than those of others’ is undoubtedly untrue (and therefore my sense of justice will definitely not prove to be a good sense of justice). Thus we come to the seemingly paradoxical conclusion that the judgement ‘The norms and rules of my socio-political system or culture are worse than those of others’ is not unconditionally binding in action if the statement is true, but is definitely unconditionally binding in action if the statement is untrue. But the paradox only appears In the two extreme cases, and even here it is only an apparent paradox. For the good sense of justice performs the comparison (ranking) well, and passes true judgements. Thus, if I make the comparative statement that the norms and rules of my culture or socio-political system are worse than those of others, I am bound to judge and act according to my belief that they should be changed for the better, but to do so conditionally if doing so unconditionally implies a moral conflict proper. For, if the proviso is not made use of, is not relevant to the case in question, the comparative statement is by definition false, and we are thus entitled to generalize the theoretical claim that, if the above comparison is made with the help of the good sense of justice, the validity claim is only conditionally binding for actions. This theoretical proposal can be the guideline in all sorts of comparisons and rankings. Thus, if I acclaim the norms and rules of my culture or socio-political system as superior (as being amongst the most right of all), I am obliged to undertake the following mental experiment: what would happen to me (and others) if the exact opposite was my judgement, and would I be exposed to a moral conflict in this situation? If my judgement was to the contrary and I would not be subjected to acts of force, violence and coercion, nor would I be instrumental in subjecting others to such acts, then my first comparative statement would be true. [18]

However, the notion ‘binding’ has so far been used only in the interpretation of judging and acting according to our judgement passed on norms and rules. But what if we interpreted the notion ‘binding’ as ‘not to act, not to judge in a manner contrary to our judgement passed on norms and rules’? In the case of judgement, such an interpretation would imply the following imperative: if your sense of justice judges that such and such a norm or rule is unjust, you should not pass a judgement to the contrary, either privately or publicly. I suggest that, if we interpret the notion ‘binding’ in this sense, every judgement concerning right or wrong is equally binding, regardless of conditions and consequences. You should not state, ‘These rules are right’, if you judge them wrong, even if the price of being consistent in this way is your freedom and your life. This is so because this case the supreme interpretation of life and freedom is at stake: personal autonomy as human dignity. The eventual loss of this supreme expression of life and freedom overrules the value of physical freedom and mere life. Thus, even if no one is morally obliged to profess publicly, ‘The norms and rules are all wrong’, if one’s life (and that of others) is at stake one is always morally obliged not to profess that the wrong norms are right. The refusal to renounce one’s own convictions cannot be called a supererogatory gesture, because every human being should do it and can do it. The same holds true of actions. No one is obliged to act such that the norms and rules should be changed if his or her life and freedom (and that of others) is at stake. But no one who rejects norms and rules as wrong and unjust should be instrumental in practising those same acts of violence, coercion, force and domination as are being rejected. Everyone familiar with the inner workings of totalitarian societies is aware of the enormity of the distinction between the two kinds of ‘binding’ in relation to our statements. People who reject all the social norms and rules of such societies are not thereby unconditionally obliged to participate in open acts of dissent. For example, in Stalin’s Russia such acts were tantamount to suicide, to the sacrifice of the life and freedom of family, relatives, friends and neighbours, and a loss of freedom is still the price generally paid for such acts. Clearly no one can be obliged to commit suicide, to sacrifice others, or even to condemn him- or herself to a loss of freedom. Yet crying along with the wolves, volunteering to do the dirty work, climbing up the ladder of power to become a fountainhead of force, violence, coercion and domination, is absolutely impermissible, even if the price of reluctance to do so is one’s freedom or life (as is sometimes the case).

As a result of this, the judgement ‘These norms and rules are utterly unjust in comparison with those of other socio-political systems or cultures because they include the greatest amount of force, violence, coercion and the like’, or ‘These norms and rules entail as great an amount of force and violence as systems or cultures having the most unjust norms and rules’, is not unconditionally binding, if the notion ‘binding’ is interpreted in a positive sense. None the less, the same judgement is unconditionally binding if ‘binding’ is interpreted as forbearance.

Only in exceptional cases are systems of norms and rules comprised entirely of domination, violence, force and coercion, even if they include acts of the latter kind to a greater or lesser degree. We know that the sense of justice does not require a comparison among the actual systems of norms and rules unless they include such acts, and then only as far as they do include them. Since only those aspects of norms and rules which directly relate to the universal values (principles) are affected by the comparison, the Kantian distinction between private and public use of reason, in respect of this particular situation, has to be modified, for all the examples of observance or infringement of that norm of comparison are also moral matters. Of course, all aspects of the norms and rules we do not compare can still be subjected to judgement by the sense of justice. Everything that has been said about the ‘private’ use of reason applies here. It can be argued that the rule of obligatory education includes coercion (it is enforced), but it cannot be said that the acts performed in educational institutions are acts of force, though they can be. Even in the most violent and coercive societies innumerable acts are performed according to norms and rules which do not involve violence, force or coercion (or involves them only if one chooses this course of action). The ultimate argumentative rejection of those norms and rules can thus be considered simultaneously with the due observance of those norms and rules that do not involve moral contradiction.

Social and Political Conflicts Viewed from the Perspective of Dynamic Justice

In chapter 1 I gave a brief overview of the possible social (and political) conflicts viewed from the perspective of the formal concept of justice as static justice. I shall now address the problem in full, including the social and political conflicts which arise from, or conclude in, the process of testing and querying norms and rules as to their justness or unjustness. A firm division between ‘non-testing’ and ‘testing’ cannot be made. Obviously, if I claim that certain norms and rules should constitute a broader social category than they do now, I pass the judgement that the present sphere (extension) of validity of those norms and rules is unjust. Social conflicts over such issues can also be categorized as dynamic justice in statu nascendi. However, if social conflicts spring from the inconsistent application of norms and rules pertaining to a social position (for example, a peasants’ revolt against tax-collectors), they must be solely examined from the standpoint of static justice.

In the preceding section I stated that, whenever we reject norms and rules as unjust, our judgement is guided by the sense of justice. Wrong norms can be called unjust (and not only incorrect) because they have a moral aspect we reject as bad (evil). But the norms and rules we reject as unjust are not moral, but social and political. Thus the statement ‘These norms and rules are unjust’ expresses a social and political conviction. Those claiming, ‘These norms and rules are unjust’, and those saying of the same norms and rules, ‘These norms and rules are just’, stand in a social (or political) conflict with one another. The former want the norms and rules changed or abolished (replaced by others); the latter will defend them because they either take them for granted, or have revalidated them, or both. Social (political) conflicts can be worked through by speech acts alone only if this procedure is a norm of the community (rank, estate, institution, the entire society) recognized as valid by both parties. If not, the conflict is worked through via direct actions (practices), in the course of which the following alternative solutions emerge. First, one party may force the other to listen to its arguments. Secondly, one party may force the other to obey norms and rules the latter believes unjust. Thirdly, a compromise may occur where norms and rules are more or less changed but the suggested alternative rules are not substituted. Social conflicts can be settled in the first and third of these solutions if in time both parties agree that the new norms and rules are fair (as just as possible), but they are never settled in the second case. only temporarily suppressed.

I make the theoretical proposal that all social and political conflicts arise around the matter of justice/injustice (of the application, the area of validity, of norms and rules, or of the norms and the rules respectively); further, that all social and political oppression is the suppression of a particular claim to justice, and that all social and political compromises are compromises concerning the justice or injustice of certain norms and rules.

Of course, this is a matter of definition, and every definition also means exclusion. Accordingly, I exclude from the category of social-political conflicts:

1 those clashes of interest where none of the conflicting parties challenges either the norms and rules or their application as ‘unjust’ (competition among individuals or organizations, conflicts arising from personal ambition, thirst for power, following the ‘rules of the game’);

2 all wars where neither of the contestants has any restrictive norms and rules concerning this particular war or wars in general (this can legitimately be called a relapse into the ‘state of nature’);

3 those conflicts where the dispute concerns the correctness or incorrectness of a merely technical rule;

4 purely moral conflicts – that is to say, conflicts between interclusteral moral norms (or maxims), irrespective of whether such a conflict occurs in the soul of an individual or in discourse, even if such conflicts occur in conjunction with, or on the occasion of social conflicts;”

5 disputes about the truth/claim of any statement of fact if, first, the acceptance or rejection of the statement is not evaluated either as good or as evil, and secondly, if no evaluation follows directly from the statement, or if the evaluative conclusion is accepted by all parties, provided the statement is true;

6 all conflicts of emotion and passion, unless it can be rationally proved, most preferably by a third party, that the trigger of the passion was a matter of justice or injustice – clearly, if emotions or passions are manifest in any particular matter of justice, we are dealing with socio-political conflicts.

The statement that all social and political conflicts arise around the issue of justice/injustice thus leaves wide open the problem of the motivating forces of social and political conflicts, for it by no means amounts to the statement that groups or individuals in social conflicts are motivated by an idea of justice, even less that they are exclusively motivated by such an idea. I would instead say that being exclusively motivated by an idea of justice is a rare phenomenon, in respect not only of groups but also of individuals. People who defend norms taken for granted as just are normally motivated by vested interest (or, along with other things, by vested interest), and those who challenge the same norms and rules as unjust are often motivated by dynamic interest. (An interest can be called ‘dynamic’ if its pursuit concludes, or might conclude, in the alteration of a norm or rule.) Particular social conflicts often emerge, or eventually gain momentum. through the private or public display of passions (for example, the outburst of rage or irrational disobedience that I have termed ‘rebellion’). Such passions. which cannot be understood in terms of ‘Interest’, may continuously fuel such conflicts. World views, immanent or transcendent, in a legitimizing or critical role, are of tremendous motivating force. This is an obvious and almost redundant statement, for all norms and rules are legitimized by dominant world views, and all alternative world views, including the dominant one in its critical use, challenge at least the application of the prevailing norms and rules, and eventually also their justness. But, whatever the motivations are, whether one or the other has more influence, whether all three are of equal influence, or perhaps one is more or less absent, the fundamental motivation formulated, or only displayed, in and through them is a social need,[20] or a structure of needs, claiming satisfaction.

Whether the idea to defend or to achieve social justice (or political justice) is also a powerful motive in a social conflict is an important question, but it has no crucial relevance for the problem being examined here.[21] I have only stated that all social and political conflicts arise around the matter of justice and injustice.

A conflict arises around the matter of justice/injustice if an observer (participant observers included) can describe or reconstruct the conflicts In terms of justice/injustice; if the observer can identify the norms and rules challenged, or the norms and rules devalidated or revalidated by the actors in that conflict. If this cannot be done, the conflict under scrutiny is neither social nor political in character.

Despite its apparent meagreness, the proposition that all social and political conflicts can be understood as arising around the matter of justice/injustice allows several important conclusions to be drawn.

In the discussion of the criteria of justice we saw that in the modern age we have recourse, directly or indirectly, to two ultimate values, freedom and life, every time we devalidate or revalidate norms and rules as just or unjust. Further, we saw that equality is a conditional value (equality in freedom, equality in life chances), while ‘reason’ (as rationality of intellect) is the supreme procedural value. I shall now develop this further.

Life and freedom as such – that is, as universals – are the ultimate values only in modern times. Yet in any past instance when conflicts centred upon justice or injustice – in other words, in every political or social conflict – the very values, principles or hypothetical imperatives which performed the task of devalidation or revalidation were embedded in, and related to, one specific interpretation of freedom or of life (or both). Two kinds of claim could define the conflict. The contesting parties could state, ‘The norms and rules are wrong and must be replaced, because freedom means this and not that, life chances are indeed these and not those’ (the interpretations are different but the social clusters to which freedom and life are allocated remain constant); or they could claim, ‘Freedom should be “ more or less” for everyone; it should be more for some, less for others. Life chances should be increased or decreased for everyone; they should be increased for some, decreased for others’ (the interpretation of freedom and life chances is constant). Normally, the two kinds of claim merge.

Some additional remarks are necessary. The claim that freedom should be decreased for everyone is the only contestation of justice by freedom that can be made in a typically social (not political) conflict. All other contestations of justice due to any particular interpretations of, or claim to, or invective against, freedom, are political conflicts par excellence. Similarly, the claim that life chances should be decreased for everyone is the only contestation of justice by the idea of ‘life’ which can be made only in a typically political (not social) conflict. In a generalized form’, the following conclusion can be drawn: conflicts are political if justice is contested on the grounds of freedom(s); conflicts are social if justice is contested on the grounds of life (chances). Although I have discussed the problem here from the perspective of dynamic justice, the conclusion would be the same if we turned to static justice. If norms concerning life chances are inconsistently applied, social conflicts may occur. If norms concerning freedom(s) are inconsistently applied, political conflicts may occur. Of course, one can devalidate or revalidate the same norms and rules by having recourse to both ideas (those of life and of freedom). If this happens, social and political conflicts merge or overdetermine one another.

It has been argued that political conflicts arise around matters of freedom and social conflicts around matters of life chances. Are the conditional value of equality and the procedural value of rationality also constitutive in all social and political conflicts?

As we know, social equality is constituted by norms and rules. Norms and rules ‘equalize’ people of the same social cluster and ‘unequalize’ people of different clusters. It then stands to reason that every time social and political conflicts emerge around the widening or restricting of a social cluster (the application of the same norms and rules), or every time that such conflicts involve the claim for introducing and founding alternative norms and rules to constitute new, broader or narrower, clusters, the matter on the agenda is equality or inequality in freedom or in life chances or in both. This assertion simply follows from the definition of ‘social equality’. Socio-political conflicts attempting to change social clusters contest, by definition, the very kind of equality and inequality constituted by the established norms and rules. A claim such as this is far from being equivalent to the specific claim that people should generally be less unequal in their freedoms and life chances, just as it is not equivalent to the claim that some people should be less unequal in one or both respects than some other people, though this latter claim is quite frequent. The reversal of roles can be claimed as well (for instance, that the present hierarchical ‘upper’ cluster should become the ‘lower’ cluster, and the like). The claim to equal freedom and equal life chances for everyone appears in pre-modern histories only as the exception, and even then as a dream and a wish rather than a real claim, for it is not, and cannot be, made by actors in social-political conflicts. The universalization of the values of freedom and life in modernity is both the precondition and the consequence of the emergence of this claim as a real one. A claim is real if it is regulative and can also be constitutive in political and social conflicts.

All the same, not all political and social conflicts aim at increasing or decreasing equality or reversing the hierarchy of social and political clusters (which can be called the restitutive or retributive application of the concept ‘equality’). If neither the substance of the norms and rules nor their width is queried, and social and political conflicts still arise around the matter of the inconsistent application of norms and rules, the claim for greater or lesser social equality is absent (the contestants claim greater justice in terms of static justice). This is equally true if social conflicts appear in the form of disobedience or rebellion.[22] It is not the form of a social or political conflict that decides whether a greater or lesser degree of equality is at stake, but the overt or implicit claims made by the social (eventually individual) actors. (The claim is implicit if the observer can rationally interpret or reconstruct the social or political conflict as the contestation of equality and inequality, even if the participants do not overtly make such a claim.)

What is the rational procedure for carrying out our political or social conflicts? I have defined ‘rationality of reason’ as ‘observing norms and rules’, whereas I have defined ‘rationality of intellect’ as ‘Observing at least one norm or value while querying, testing and rejecting others’. Rationality of intellect is in the final instance communicative reason, because the value (or norm) observed devalidates or revalidates existing norms and rules, and this can only happen by way of rational argumentation as justification. Consequently, a procedure is rational in so far as the norms and rules of a society or a social cluster include such a procedure, or, alternatively, if the value or norm observed does so.

Normally, the system of norms and rules of any society does include procedures for handling social or political conflicts. There are usually different procedures for handling intraclusteral conflicts and interclusteral ones, and sometimes other procedures for dealing with both kinds of conflicts depending on whether they occur within or among higher, or lower, clusters. In other words, there are different procedures for social and political conflicts among equals and among unequals, for conflicts among the more free (or free) and those with optimal life chances, and among the least free (or unfree) and those with the least life chances. If norms and rules are taken for granted – at least, for those people who take them for granted all such procedures are rational, where ‘rationality’ stands for ‘rationality of reason’.

There are three kinds of procedure for settling social and political conflicts: discourse, negotiation and force. All three are rational if, and only if, the preference given to one or the other procedure in a particular type of conflict is normatively imperative or at least optative (according to the norms and rules). The procedure is just if the norms and rules prescribing it are applied consistently and continuously. The ideas of justice applying here are ‘to each the same’, ‘to each according to rank’ and ‘to each according to merit’, where ‘merit’ stands for social and political merit and not for purely moral merit. The other ideas of justice do not apply here. [23]

The use of force as a procedure for settling social and political conflicts is unjust if, and only if, the norms and rules enjoin us to settle this kind of conflict by discourse or negotiation. Except under tyranny (the state of absolute injustice), there are always norms enjoining us to settle at least a few types of conflict by discourse, lust as there are established institutions to conduct such discourse. But only intraclusteral social-political conflicts can be settled by discourse. Interclusteral social-political conflicts cannot be, and have never been, settled by discourse alone. However, there are usually optative norms recommending the settling of certain conflicts by negotiation rather than force, or by force only if negotiation is totally exhausted. Finally, in all societies where political freedom is allocated to a rank, there are certain interclusteral social conflicts which should be settled by force (or, at least, where it is optative to do so). Where there exists a system of laws, procedural imperatives and options are prescribed or circumscribed by those laws. By ‘Imperative’ I mean the following formula: ‘Each and every time such and such a conflict occurs, an attempt must be made to settle it by either discourse, negotiation, or force, and in that order.’ By ‘option’ I mean the following formula: ‘If social or political actions are conducted in one or another way by one party (or by any party), an attempt must be made to settle the conflict by this or that procedure, and in that order.’

The justness of a procedure for settling social and political conflicts can also be examined within the framework of static justice. Here the following statement is possible: ‘This procedure should have been chosen to settle the conflict, but another has been chosen.’ (For example, negotiation was still possible, so the use of force was unjust.) We come across such statements as this in all history books. The authorities which use force legitimately are generally inclined to do so even if the norms stipulate a different procedure. It appears rational to try to settle social and political conflicts quickly and for good, and force seems the best means to this end. But this option of purposive rationality is not as rational as it seems. If purposive rationality overrules the norms and rules of procedure, the person or persons opting for it may pay dearly: with their lives, with a change in the institution of authority, eventually even with the loss of sovereignty.

The justness of the procedure for settling social and political conflicts can be queried too by the sense of justice as the sense of dynamic justice. (See the preceding section of this chapter.) X can say, ‘Such and such social or political conflicts should be settled not by force but by discourse or negotiation.’ By saying this much X claims that the procedure of using force (in these particular situations) is unjust, and cannot have lust results. And Y can say, ‘Such and such social and political conflicts cannot be settled by discourse or negotiation; thus they should be settled by force.’ Since the formula here involves the phrase ‘cannot be settled’ instead of ‘should not be settled’, it does not query the justness of the procedure per se, but only asserts that this procedure cannot have just results. This is why force should be used, because then a just result will eventuate.

Let us now suppose that both X and Y observe a norm or have recourse to a value from the standpoint of which they devalidate the current procedures. Both must produce arguments to justify their claim and both must be consistent in the argumentation. Let us first examine the claim of X.

The moment X claims that such and such a conflict should not be settled by force but by discourse and negotiation, X commits himself not to use force, but rather to use negotiation and discourse. Thus X is committed to devalidating the existing norms and rules and validating alternative (still imaginary) ones by discourse, or to the actualization of alternative ones via successful negotiation. Thus X is only ready to participate in movements committed to the procedure suggested by him. X also recommends to all parties in the relevant political and social conflicts that they proceed via negotiation and discourse, and may add that, given the asymmetrical conditions between the challengers and the challenged in the imaginary social and political conflicts, the challenging party may use force up to the point where it ensures that negotiation and discourse become the methods of settling the conflict. It would indeed be totally inconsistent to devalidate a current procedure by the use of the same procedure.

Let us take now the case of Y. The moment Y claims that certain social and political conflicts cannot be justly settled except by force, he is in no position to devalidate the use of force by the challenged party. Y cannot claim at all that the use of force is an unjust procedure. Y can only argue as follows: ‘They should not have done what they did.’ Yet what is the standard here? This can obviously be the standard of the challenging party alone. Thus Y devalidates the norms and rules of the challenged party (those of the existing social system) from the standpoint of alternative ones. But the alternative procedural norm is, by definition, supposed to be force. To blame the challenged party for the use of force on the grounds that they ‘should have acted otherwise’ implies the devalidation of the same norms as have been revalidated. We come across this almost ridiculous inconsistency daily. Sorel is the only completely consistent modern advocate of the procedure of force (as violence): he argued that it is equally just for both challenged and challengers to settle the social conflict by violence. [24]

Of course, we can devalidate (query, test, criticize) concrete norms and rules in many respects without rejecting the norms concerning procedures embedded in them. Further, we can give conditional support to social actors who query the justice of certain norms and rules we query ourselves but who settle the conflicts with a procedure we believe inappropriate. We can eventually agree with the measures taken against such actors and still state that their claim is just.[25]

All claims to justice raised by any challenging party in social and political conflicts include a retributive or restitutive element or both . It is in static justice that both elements are always present, even if the challenging party does not take justice (as retribution) into its own hands, which it sometimes does. This is obvious, for in static justice the norms and rules of the existing social order have been infringed. ‘Social justice’ is restored if the same norms and rules are continuously observed, the challenged party is compensated, and persons and institutions infringing the norms (laws) are punished. In dynamic justice the matter is far more complex. But in societies where the social order is legitimized by tradition, dynamic justice follows, more often than not, the logic of static justice. Norms and rules are devalidated and challenged from the vantage point of norms and rules (eventually laws) that have already at some time existed. It is of secondary importance whether the ‘original state of affairs’ really existed, and, even if it did, it appears embellished and idealized in the imagination of the challenging party (witness the perpetual references to the laws of Lycurgus in Sparta). The challenging party claims that the contemporary norms and rules are distortions of the ‘original’ ones, that their very existence is an infringement of the original normative and legal system. Thus the proposal to substitute other norms and rules for the existing ones is tantamount to, or rather, appears in the disguise of, the proposal to restore the factual validity of those still valid. The claim to restoration includes the claim to restitution (returning land, annulling debts, and the like), and usually to some kind of retribution. The more the challenged party forcibly defends the existing order, the more it is guilty of offence against the ‘original’ laws and norms. And, unless clemency is granted, this guilt must be treated retributively.

Although theories of ‘social contract’ introduce new elements into dynamic justice, as do political actors relying on or supported by such theories, there are striking similarities between their argumentation and the traditional one. The supposition that there exist certain ‘laws of nature’ continuously infringed by the existing legal and normative system, and particularly by the supreme authority of this system, and, consequently, the belief that right is with the offended and not the offender, is not far removed from the supposition that the laws of Lycurgus have been infringed and the belief that right is with those wishing to restore them. In both cases, justice should be done by restoring the ‘original laws’. Restitution is part of the act of restoration, but even additional compensation can be claimed. Although legal thinking cannot be reconciled with the idea that retribution is justly exacted against those observing a law and acting according to the authority in force at the time of their actions, It is still the case that political actors have very often taken the theory of ‘natural law’ at its face value. The verdict against, and subsequent execution of, Charles I and Louis XVI rested precisely on this embracing of the theory of ‘natural law’. Whether the actors were right or wrong is another matter; what is relevant here is their conviction of being right.

All secularized Western theories of natural law are based on the assumption that we ‘have’ certain rights ‘by nature’. Rights are ours ‘by nature’ even if the Creator has endowed us with them. There are two basic rights of this kind: life and liberty (freedom). Being natural rights, no one can appropriate or alienate them. What is ours can only be relinquished by us. We may eventually decide to alienate and delegate our freedom (or certain elements of our freedom) for the sake of life. (For the theory of contract this is irrelevant, but in principle we can proceed in the reverse fashion as well.) All social systems, norms and rules, legal systems and authorities which deny these rights in any way (deny them to any social cluster or individual) are illegitimate and thus unjust, unless the person or group concerned has decided to relinquish (delegate or alienate) them. Thus the devalidation of norms and rules, legal systems and authorities (the latter embody the legitimized norms and rules of a particular kind) is effected by having recourse to the values of ‘life’ and ‘freedom’. But this always happens when any norms and rules are devalidated. Norms and rules cannot be, and never have been, devalidated except by claiming the reinterpretation of freedom and/or life chances respectively. Theories of ‘natural law’ only codify the usual procedure; and, by codifying it, universalize, generalize and delimit it.

They universalize the usual procedure because the statement ‘Every human being is born with the right to life and liberty, and equally so’ is here substituted for the traditional statement that ‘We (our social cluster) have the right to life chances and freedom(s) equal with yours (those of another social cluster).’

They also generalize the usual procedure because ‘freedom’ and ‘life’ do not stand for a particular interpretation of the notions ‘freedom’ and ‘life’. The claim to freedom is not specific (for example, ‘We should be eligible for this office as well as you’), and the claim to life chances is not specific either (for example, ‘We should get a share of the spoils of war as well as you’). In traditional societies specific claims normally relate to a specific interpretation o freedom and life chances (‘We, too, should have the right to own land’, or ‘We should also be exempt from corporal punishment’). Life and freedom in their totality, to which all humans have a right, are, however, unspecific. Both values are usually specified, although not in one interpretation but in many, and different social and political actors can define, interpret and specify them in various ways. The interpretation of these values can thus become a matter of contestation, and modern social conflicts mostly arise around diverging socially and politically relevant interpretations.

Theories of natural law also delimit the usual procedure. Since the right to freedom and life is universal and general, we cannot propose (as a just claim) a general decrease in respect of either one or the other compared to the existing normative system. (Only with respect to an alleged ‘state of nature’ can this claim be just.) Thus we cannot claim that everybody should be less free or should have fewer life chances than the current norms and rules allow. Claims of this kind are raised even now, but cannot be based on any secular theory of natural law. [26] A limitation such as this upon the usual procedure is but one expression of the universalization and generalization of both values.

If we accept the theoretical proposal that in a specific interpretation norms and rules are always devalidated and revalidated as just and unjust from the perspective of the values of freedom and life, or both, and if we are also aware that in modern times the values of freedom and life have been universalized and generalized, we can easily relinquish the makeshift theory of ‘natural law’ without weakening the ground under the argumentative justification of claims for greater (or more equal) freedom and greater (or more equal) life chances. In fact, we can gain even more ground, because theories of natural law have never seriously assumed the existence of a ‘once upon a time’, a ‘state of nature’, or that ‘natural rights’ were the ‘original rights’ of man. ‘Original’ means ‘timeless’, but the conclusions drawn from the construct of the ‘original’ rights are ‘in time’, and this time is the present and the future of the present. Since the ‘original state’ does not stand for the past, and the devalidating power of the ‘original’ rights is being asserted in the present, the justification of the process of devalidation is put forward within a fallacious argument. To repeat, the argumentation is analogous with the Spartan argument. However, the laws of Lycurge had Indeed existed, or at least it was common belief in Sparta that they had existed at such and such a time in the real past of that city. However, to speak again with Croce, the problem with natural law and natural rights is that they do not exist and have never existed, yet we employ them as if they do and they have.

We can relinquish this makeshift construct if we anchor ourselves both in the real past of humankind – that is, of all human histories and in the real present, and future of the present, of our own (Western and modern) history. If we accept that norms and rules have always been devalidated from the perspective of the values of freedom and life, in all human histories, then our right to do likewise needs no further justification. The manner of proceeding itself entails a restricted empirical universality. It is restricted in the sense that, where social and political conflicts are absent, this procedure is also absent. It is empirically universal in the sense that all social and political conflicts are carried out via such a procedure. Thus working through our social conflicts via such a procedure is only the manifestation of universality, and, as such, needs no further justification.

Let us consider at this point a possible objection to my argument: even if we accept that norms and rules have always been devalidated (or revalidated) by the process of resorting to one or another interpretation of the values of freedom or life (or both), we have not yet ascertained that those acting in this way have the right to do so. Consequently, the right to devalidate or revalidate any system of norms and rules by having recourse to the universal and general values of life and freedom is not a right either, or, if it is, this has not yet been proved.

What does it mean that I ‘have a right’? It means that I am entitled to do something. And who or what entitles me to something? Norms and rules do. If I do something I am entitled to, my action must not allow for social sanctions. If it does, I suffer injustice. If I do something I am not entitled to do, my action does allow for social sanctions (Irrespective of whether or not they are applied). Can I claim that I have a right to do something if this action carries social sanctions? Is there such a right? Do we know about such a right? In chapter 2 I argued that moral norms are interclusteral norms, and that we observe them irrespective of social sanctions. Everyone is entitled to act according to interclusteral (moral) norms, because they are accepted as valid. So the right exists to act according to moral (interclusteral) norms, even if this action allows for social sanction for having infringed social norms. In this sense we are aware of a right different from those secured and guaranteed by intraclusteral social norms and rules. I term this moral right. Hence we can consider the following possibility: the people of group X are not empowered by concrete norms and rules to contest and eventually devalidate any of these norms and rules, but they still have a moral right to do so. They have this moral right any time they observe interclusteral (moral) norms in the process of challenging taken-for-granted norms. It is too far-fetched to insist that any time people devalidate norms and rules as unjust they have a moral right to do so; sometimes they have, sometimes they haven’t. However, I need not prove that every contestation of justice is based on rights (which I do not believe to be true at all). I only have to argue for the following (weak) statement: the contestation of justice can be based on a right even if the contestants have no social right to contest.

By saying this I have not annulled the previous distinction between social-political conflicts and moral conflicts. in moral conflicts it is the observance of moral (interclusteral) norms itself that triggers the conflict. In social-political conflicts it is the non-observance of the moral norms by the challenged party, or the contradiction between the moral norms and the social norms in a challenged institution or order, that legitimizes the challenge in moral terms. Of course, the contradiction between interclusteral (moral) norms and concrete institutionalized norms is itself constituted by the regard of the challengers, because the challenged party does not detect any contradictions. This can be the case in moral conflicts as well, though not always. If it is, the moral conflict has socio-political relevance (it can be the point of departure for sociopolitical conflicts). In moral conflicts the motivation of the actor in conflict is also moral. In social-political conflicts the motives are rather mixed. Moral motive can also be absent. In this case the moral right (or eventual lack of it) can be imputed by the observer. The observer can assert that this or that social or political action accords with moral (interclusteral) norms, although the actors are unaware of it and/or their motivations are different in kind (such as sympathy or despair). If the observance of moral (interclusteral) norms is inherent in the ideas and the motives of the challenging party, such moral norms are normally included in the ‘package’ of a world view. This is exemplified by heretical movements, which normally rejected the norms and rules of the Church by claiming that it had abandoned the original teachings of Jesus Christ, teachings of eternal validity. But, even if moral ideas and motives are present, they merge with different ones (passion triggered by miserable living-conditions, selfish interests, and the like). There is always a difference between moral and social-political conflicts. even if they arise around the same matter.[27]

Moral conflicts, as mentioned, can trigger social ones, or can make the individual in the conflict susceptible to joining actors in social-political conflicts (if such conflicts exist), but neither the former nor the latter process is perforce the case.

The idea that the claim to justice draws its authority from moral right, even if the claimants are not empowered to raise this claim by the current norms and rules, has been tacitly presupposed throughout this analysis. If, in the assertion ‘these norms and rules are wrong’, ‘wrong’ means unjust, and not merely ‘Incorrect’, there must be something in these norms and rules that we judge as morally bad (evil): this is how I have argued. This morally bad (evil) element is precisely that which contradicts moral (interclusteral) norms, and this is so by definition. This is exactly why the delegitimizing claim can be based on authority, alias moral right.

But what happens when such moral right does not exist? And there must be instances of this, because it was presumed that the challenging party in a social or political conflict may or may not have the moral right to challenge. The answer is simple. If there is no moral right to challenge, then either the devalidating claim or the validating claim of the challengers is false, or both are false. The devalidating claim is false if the statement ‘These norms and rules are unjust’ is false. The statement is false if those norms and rules do not contradict valid interclusteral (moral) norms and rules in the very interpretation claimed by the challengers. This happens if the challenged party can revalidate through full arguments (of a rationality of intellect) the existing norm under challenge, or at least a third party (an observer) can do so, and the devalidating claim cannot be supported by such arguments (even by a third party). The validating claim is false if the claim ‘... and the recommended alternative norms and rules will be just or even more just’ is false. The validating claim is false if the recommended (alternative) norms and rules contradict interclusteral moral norms, irrespective of whether the actors are aware of this. This happens if the challenging party cannot justify the acceptance of alternative norms and rules with a full argument, and no third party (observer) can do so.