Writing the précis for tomorrow about Kelsen’s essay “What is Justice”, I had to think about several assumptions, he makes, as well as consequences, his theory would necessarily have.
I find it very interesting to think about justice in the way he did it, i.e. justice as the satisfaction of basic needs. That reminded me a lot of Marx’ “each according to his needs”, although it is derived from a different approach. So far, I totally agree with Kelsen. It is indeed very just if everybody has a kind of guarantee for his survival. This is exactly what welfare systems try to provide. Also, I really do like his statement that judgments about justice, just as every other decision, cannot be made purely rational for every reason we might have for making a decision, it is also emotional. In order to make this clearer, I’d like to use one of Kant’s famous examples of irrational decisions. Kant says that if somebody wants to commit suicide, it is immoral, because it is irrational to want to better your life by ending it. If you have ended your life, your situation won’t be better. Personally, I can feel a sense of anxiety behind this argument, because it is relatively easy to foil. Indeed, it is not irrational if somebody wants to better his situation by committing suicide, because it is a ration decision, similar to the Utilitarian Calculus. So, why does Kant see a contradiction here? Or even in a wider sense, why do people always look for rational arguments that support their attitude, although their decision is most-likely already made. Of course, if we sit down and have philosophical discussion, we can expect people to be as neutral as possible and only build their opinion after the conversation. But in the daily life, we always have opinions and can reasons for them. We call this arguing, but what is there first: Rational argument or emotion? In any way, emotions are included. How do you “feel” about that?
So, what would is the consequence of what Kelsen describes? He says that the term “justice” is never absolute but always relative. What are we going to do with our justice system? How can we create punishment and reward in our society, if just actions are relative and subjective? Somebody who is accused of for example raping a woman can always refer to his own system of justice in which it is not unjust what he did. Does the term “justice” not automatically come with the assumption that everybody has to share these values and therefore obey them?
I think we discussed in class how relativism still works within the idea of a system of justice.
ReplyDeleteYes, people all have different reasons why they come to the conclusions they do. This being the case, it does not mean that a group of people can understand that different actions (like murder or rape) are wrong, even if they think they are wrong for different reasons. Whether someone thinks something is wrong because it is in The Bible or because it would be against their self-interest, they do realize the actions would be bad for a society thus these actions are rightly outlawed.
Andrea, I think what Flo's asking is how people reconcile differences in what they believe is just, not how they believe it's just. So, per his example, while most people seem to think that rape is wrong, some people assuredly do not. How can we create blanket laws when this is so?
ReplyDeleteI think that's a really interesting thing to think about. Especially in a country with upward of 300 million people, total agreement on anything is just going to be inherently difficult to achieve. This is one reason that our prison population is so huge. I really think that the only way you could form a system that everyone can agree upon would be if you hand-picked like-minded people and kept the population low. Otherwise, there will always be dissent, and a likely unsatisfactory compromise will be forced.