Justice: Legality and Equality?Permanent conflicts around a necessary ideal

Gisèle Velarde La Rosa*

I. Introduction to Justice: between the end of essentialism and the need for a consensus.

What is justice? Is there anything that can be branded as ‘fair’ by itself? Does ‘what is fair’ exist in itself? What is this ‘fair’? First, we have to say that there is nothing that can be called ‘fair’ in itself: what is fair in itself does not exist or, in any case, it does not mean anything for the postmodern conscience. In other words, we do not have any reality or experience for which ‘what is fair in itself’ can correspond as a category. These types of possibilities are originally premodern, or Christian in any case, therefore both are discredited nowadays from the rational point of view. The one that alludes to the origin is nowadays excluded since, to think or to propose that something that is ‘fair in itself’ takes us to an essentialist conception that specifies the existence of immutable entities or objects that are the objects themselves and, more precisely, the moral objects themselves: for example, specifies the existence of what is ‘fair in itself’, of what is ‘beautiful in itself’, etc.

Plato, who, certainly, presents an essentialist proposal of merely rational character, proposes the first paradigm of knowledge and morals in the western world. In book VI of “The Republic”, Plato clearly shows his essentialist position when he differentiates between ‘fair things’ and ‘what is fair in itself’ and/or ‘beautiful things’ and ‘what is beautiful in itself’, establishing at the same time that ‘what is fair in itself’ belongs to a superior domain, the one of knowledge –episteme- and not to the one of mere opinion –doxa-; distinction that, certainly, has been and is always nowadays fundamental for the western thinking, beyond the preeminence’s end of essentialist attitudes in general.

“…from whom contemplate many beautiful things, but do not perceive what is beautiful in itself and are not capable to follow who would wish to raise them to that contemplation, and also perceive many fair things, but not what is fair in itself, and in the same manner everything else, we say that they opine about everything but do not know the things they are opining about”.1

* Philosopher. Ethics and Politics Specialist. Tenure Professor of Philosophy at the Antonio Ruiz de Montoya University (Lima, Perú). This article was originally published in the Review Thémis. 2nd period. No.43. Lima: Pontificia Universidad Católica del Perú. 2001.1 Plato. The Republic. Book VI. 479e. Bs. As.: Eudeba. 1963. pp. 332-333.Also, we find in the same Book VI different allusions to essentialism: “what is beautiful exists in itself” (476d), “beautiful things, but not beauty in itself” (476d), “shouldn’t we call philosophers –and not “philodoxers”- those who search and love all things in themselves?” (480ª), “each thing in itself, always immutable in its essence” (479e), “what is beautiful is one, the same as what is fair, and, other similar realities” (479ª).

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Let us specify a little bit more what ‘essentialism’ is. Essentialism is the doctrine that proposes that there are transcendental, immutable objects, or essences, that are ‘the reality itself’, and more specifically, the reality of the moral values that we have, which can be known through intelligence, through an ‘adequate glance orientation’.2 He who gets to know directly the objects themselves –in this case ‘what is fair in itself’- will practice fair actions and will teach others to practice them too.

These affirmations allow us to note another aspect of the Greek world that is interesting to point out, and it is that essentialism presupposes an absence of divorce between ‘will’ and ‘knowledge’, or rather presupposes that will is going to be always subjected to knowledge, which is another way to say that if we know what good is, we will do good anyway, if we know justice we will behave fairly. Nowadays, this possibility is not only considered as inexistent, since we not only consider that we can know what good is and not do it3, but, and above all, we ask ourselves what good in itself could be and even if it is worth talking about it nowadays4.

On the other hand, our Christian heritage will also follow an essentialist path, given that the commandments would be the norms given by God to live what good is and act with justice, and loving the fellow man; being God an immutable, transcendental substance, the Christian proposal is also essentialist. Both attitudes appeal to transcendence and, more precisely, to the fact that ‘truth’ is found in transcendence and, that through the knowledge of things in themselves (essences), based on the platonic idea of Good or the Christian God, we will get to know what fair is.

Modernity breaks both of these attitudes when it establishes ‘rational autonomy’ as its outstanding characteristic. This means that even though transcendence can exist, reason is not necessarily subjected to it. That is why, the split, or conflict, between ‘reason’ and ‘faith’ is a modern conflict or, in any case, it is initiated from Modernity. A proof of this is that modern philosophers and scientists are not, strictly speaking, atheists, but neither receive the ultimate basis of Christian tradition; they establish them in the act of reason itself, which leaves aside, at the same time, every basis coming from transcendence and, in this measurement the platonic essentialist position as well. This obtained ‘rational autonomy’ is clearly expressed in the concept of truth coined by Modernity, which is ‘certainty’, defined

2 This process is described in Book VI as well as Book VII of “The Republic”. Plato, 1963.3 This change in the relation between ‘knowledge’ and ‘will’ that questions and even leaves out mind’s subordination, or human will, to knowledge as a necessary fact, occurs since Christianity, with Augustine of Hippo, who makes it clear that one can know what is good but do evil.4 For an interesting reading about the postmodern moral situation, read Alasdair McIntyre book After Virtue. Barcelona: Critic. 1987.

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as ‘that of which it is absolutely impossible to doubt’5 and it is expressed later in ethics, politics and social fields as ‘illustration’.

“Illustration is the liberation of man from his culpable incapacity. Incapacity means the impossibility of using intelligence without another one’s guidance. This incapacity is culpable because its cause does not consist on the lack of intelligence, but on the decision and courage to use it by oneself without another one’s guidance. Sapere aude! Have the courage to use your own reason! Here is the illustration’s motto”.6

This way, modernity allows ethics to take up again its true nature, which is to be lay or secular, as reason is. Christian ethics is only a way to establish value codes, but not the only one. From modernity on, what is fair will have to be defined by reason and, in principle, this will occur through a ‘consensus’ among human beings. The question about ‘what is fair’ remains without a definitive answer, and nowadays, in the postmodern period that we are living in, this question becomes so diffuse as well as urgent, given that, since we do not have a definitive answer for it, the necessity for its precision becomes more urgent, precisely because we cannot socially give up justice and then have to “create” it; more precisely, create the criteria that will allow us to decide what is fair and unfair. Thus, the consensus becomes imminent.

II. Justice today: a multiple relationship system in search of adequate consensus.

We have said until now that what is fair in itself does not exist, but we have not given up justice; because, how to give it up? This is impossible from the rational point of view, given that human life is inadmissible without order –moral and legal- and justice, from its beginnings up to today, has had a central role in it since it has been seen as the ‘social virtue par excellence’; that is, as the virtue -and the value- that a society has to have to be able to ‘morally’ conceive itself as such. 7

5 "What can be considered truth, then? Maybe only that there is not anything true in the world?" (…) Is it not true that I have convinced myself about my inexistence? No, by the way, there is no doubt that I exist if I have convinced myself or if I have solely thought anything". (…) "Then, after having though rightly and after having examined all carefully, we must conclude and establish that this proposition: I am, I exist, is necessarily true each time I pronounce it or just conceive it in my spirit"; (…) "that knowledge is more certain and evident that anyone before I have had". (…) "I am, I exist: this is true; but for how long? For all the time I think , because I might happen that if I stop thinking, I might at the same time stop being or existing". These quotes are the central propositions of Rene Descartes' "Second Meditation", where with the establishment of the '( I ) think - am" or 'cogito ergo sum' , Descartes founds the modern projet began by the scientists, establishing thought as the first absolutely undoubtable truth and then the modern rational autonomy is clearly established. René Descartes. "Metaphysical Meditations". In: Selected Works. Buenos Aires: Ed. Sudamericana. 1967. pp. 223 - 226. 6 Immanuel Kant. “What Is Illustration?” In: Philosophy of History. 5th re-issue. México: F.C.E. 1994. (Italics are from the original text).7 Regarding justice, Aristotle says: “It’s virtue in the most upright sense, because it’s the practice of perfect virtue, and it’s perfect, because whoever possesses it can practice virtue with others and not only with himself/herself”. (1129b30, p. 239). Also: “This type of justice, then, isn’t a part of

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Having done these initial precisions, we open the question for justice from gained rational autonomy. Nevertheless, this paper will not consist on a exposition of diverse criteria that have been established for justice -for the distribution of goods- but on an analysis and reflection about conflicts themselves that occur in justice and that, precisely because of that, make the diverse criteria that are established in the theories so necessary, as well as arguable.

Let us start now to clarify what justice is in regards to its carrying out; which evidently goes beyond its social ideal character. We are going to introduce the problematic of justice using four quotes by John Rawls8, that definitely are fundamental to clarify the problems and complexities that shape what is debated in justice.

(1) “Justice is the first virtue in social institutions (…), it does not matter that laws and institutions are in order and are efficient: if they are unfair they have to be reformed or abolished”. 9

(2) “...the distinctive role of justice’s conceptions is to specify basic rights and duties, as well as to determine distributive appropriate portions...” 10

(3) “...institutions are fair when there are no arbitrary distinctions between persons when assigning basic rights and duties to them and when rules determine an adequate balance between competitive pretensions and the advantages of social life”. 11

(4) “The principles of social justice have to be applied in first instance to these, probably inevitable, basic structure’s inequalities in every society. (…) Justice of a social outline depends essentially on how fundamental rights and duties are assigned and on economic opportunities and social conditions in society’s diverse sectors”. 12

Now, before going into our main subject, let us analyze what is central in each of the quotes mentioned above:

(1) Maintains social virtue character par excellence, typical of justice, and shows that justice alludes to a system: the concept of ‘institutions’ is central here. Likewise, establishes that law and justice are related. However, it

virtue, but the whole virtue” (1130ª10, p. 239); and later, “Justice is a middle term, but not in the same way as other virtues, but because is inherent to it...” (1133b30, p. 251). Aristotle. Nicomachean Ethics. Book V. Madrid: Gredos. 1985.8 John Rawls has the merit of reopening the current debate about justice and is always fundamental, since even if not everybody agrees with his answer, later theories and the current debate are always done taking his work as a point of reference. Rawls’ central work – “A Theory of Justice” (1971) – captures a liberal descending proposal of Kant’s line of argument.9 John Rawls. A Theory of Justice. 1st re-issue. México: F.C.E. 1997. p. 17.10 Rawls, 1997: 20.11 Rawls, 1997: 19.12 Rawls, 1997: 21.

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differentiates justice from law and recognizes that laws can be unfair, but points out, at the same time, that if they are, they aim not to be.

(2) Shows that there can be different ways to understand justice, but that its objective is always to determine rights and duties, and distributions in society (the criterion to be used to make those determinations and distributions is indicated indirectly here).

(3) Adds that these determinations have to avoid arbitrariness between persons and entail social equilibrium, which aims to regulate freedom (competitive pretensions) looking towards common good (the advantages of social life). Here, the key point is searching for equality as justice’s own objective.

(4) Points out that inequalities are inevitable in principle, but that it is justice’s task to regulate them and that the objective of justice’s theories is the criterion that is going to be used for those regulations that aim for equality. 13

I consider that these four quotes clarify well what is at stake in justice, as well as the diverse areas in which debates move around it. We could synthesize these fields by saying that the subject links four central aspects: legality, equality, goods to be distributed and the distributive criteria to be used. Let us specify, for information purposes, what the goods that justice takes care of are. In general, adding constants from different theories, ‘goods’ -‘social goods’- are the following: property, resources, equal opportunities, talents, income, rights and also well-being.

Our subject, we had said, will concentrate on the conflicts that are inherent to justice, which are going to make us analyze and argue about two central concepts that have always been used as synonyms of justice: we are talking about ‘legality' and ‘equality’. As Bobbio affirms: “Of the two classic meanings of justice that can be tracked up to Aristotle, one identifies justice with legality (…); the other meaning identifies justice, precisely with equality ”.14 Let us clarify both relations.

III. The Justice – Legality Relation: between mutual dependency and autonomy.

Introductory situation to the problem: John touches all the pens on his father’s desk. His father tells him: “if you touch my pens, I will give you a slap”. John touches his father’s pens again and he gives him three slaps. John exclaims: “it is

13 Other quotes that complement the ones mentioned here and/or have the same sense are the following: “Men are in disagreement regarding which principles should define the basic terms of their association. Nevertheless, we can say that in spite of the disagreement, each has a conception of justice. That is, they understand the need for having a characteristic group of principles at one’s disposal that will assign basic rights and duties and determine what they consider the correct distribution of burdens and benefits of social cooperation, and are willing to state those principles” (Rawls, 1997: 19) and “justice’s primary object is society ‘s basic structure or , more exactly, the way in which social institutions distribute fundamental rights and duties and determine the division of advantages that come from social cooperation (Rawls, 1997: 20). 14 Norberto Bobbio. Equality and Freedom. Barcelona: Paidós. 1993. pp. 56 – 57.

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unfair; you told me that you would give me one slap and you have given me three”. Justice here is associated to legality: what is fair is to follow the law, the norm. If we follow the law, we make justice, even though, in opposite case, we cannot say that we are necessarily in an unfair situation. Injustice rather occurs when authority abuses its power while exercising the stipulated rule or law; in this case, when the child does not get the punishment that he should have got.

Several questions come up here: is justice the same as law? What relation does one have with the other? Furthermore, John could question the fact that his father gives him slaps, if it is one or three. Why doesn't Juan argue his father’s authority? Why does his father have “the right to” give Juan a slap when he touches his pens?

The child, then, accepts his father’s law and considers that “to follow the law is what is fair”, “is to make justice”, while to distort the law or abuse it is unfair. Let us note from the beginning that it is not the same to say that “to follow the law is what is fair” than to say “to follow the law is to make justice”. First, ‘justice’ and ‘law’ are used as synonyms, while in second, law is an instrument of justice, which is the ideal. Then, to clarify the relation between ‘justice’ and ‘law’, let us start with their origin. Which is the origin of law and justice? The first thing to say is that law was born to regulate, determine or put an end to a social issue that is disturbing; for example, the invasion of land, sale of spoiled products, child abuse, possession of goods that belong to others, etc. If these –and other- disturbing situations did not occur, there will be no necessity for law. Then, law originates due to a social fact that is disturbing and its strength lies in that –in what is disturbing about the fact-; that is why coercion is essential to law. Law, in its own nature, determines, obliges; is authority.

Justice, on the other hand, does not originate from a social fact, but it is considered as the ideal situation that society wishes for in order to have harmonious human coexistence (Rawls’ quotes point to that). That is why we can say that its origin is in the request for a social order that is necessary on behalf of reason. I do not see any other origin for justice than the one that responds to the ‘request of a principle’: we always need to ask for the necessity for justice to have a minimum of human coexistence that makes sense. That is why justice has always been considered as the social virtue par excellence, as mentioned before.

Therefore, justice is more a goal, an ideal, which we tend to go to15, than a stable reality that can happen in life; but precisely, this shows the intrinsic relation that it has with the law, since it is the second one that allows us to get closer, in one way or another, to carrying out this social ideal, insofar law can happen and can be stable. Different social pacts search precisely for law’s establishment and stability.

Therefore, it is clarified that even though law and justice have different origin, they keep an intrinsic relation with one another, and this is because the law is justice’s

15 “…where as “fair” it is understood that, such relation has to do, in a way, with the order that has to be instituted or restored (…), with a harmonious ideal of all parts…” (Bobbio, 1993: 58). Also: “...justice is an ideal...” (Bobbio, 1993: 59).

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instrument. That is why even though justice does not sum up in law, it needs it as its instrument in order to be carried out, since if there was not law, would it be possible to think of justice? “To think” maybe, but “to make justice” I do not think so. The phrase “to follow the law is to make justice” alludes to this.

However, it is worth noting that law can exist without justice; since, what justice we are talking about when it is the despot’s law, for example, or the minority’s law, or the fruit of dogmatism or fundamentalism, to mention some cases16. That is why we do not maintain that the relation between law and justice is fundamentally a distributive one –we think that to maintain this is erroneous-, since nothing can guarantee that to distribute the law entails justice (as also noted by Rawls’ initial quote). In fact, it is fundamental to point out here that this is always a thorny point, since everything depends on what is understood as justice and how law is established, and this puts us definitely in permanent conflict, given that every decision will always remain as conjunctural or cultural, even if it can also be historic.

But, what happens to the phrase that equals law and justice? Is this equality valid or represents an error from the beginning? Here, I consider that we have to distinguish two levels. To say that “the law is what is fair” is not only as old 17 as current, but in certain societies it is what is real, in the sense of what really occurs, the facts, since in practice some societies reduce justice to law.

I will like to introduce now a distinction between two types of societies or social realities: one where ‘what is legal’ and ‘what is moral’ are the same –where “law is what is fair”- and another where ‘what is legal’ and ‘what is moral’ are different –where “law does, or entails, justice”. I am going to also consider that the first case represents a more incipient and less autonomous society, meanwhile the second one is a more evolved and rational society.

Thus, we say that “law is what is fair” when ‘legality’ and 'morality' (‘morals’) are not distinguished from one another. Here, I think that Hobbes has the most significant case, when by talking about the transition from ‘natural state’ to ‘State' or ‘civil society’, he affirms that every rational order is the product of the pact between all men and that only from this pact we can establish what is legal and what is fair18; without distinguishing, nevertheless, between both notions. For Hobbes ‘what is legal’ and ‘what is moral’ are the same, he compares ‘right’ or ‘legality’ with ‘justice’:

16 Obviously, our statements move around (as we have pointed out before) rational consensus as necessary for justice and, in this measurement, we think in the modern and postmodern way, and not the premodern one.17 “...the fair one will be the one that follows the law (...).That is why what is fair is what is legal” (1129b). Aristotle, 1985: 237-238. 18 “Wishes, and other man’s passions, are not sins in themselves. Neither the acts that come from passions, until there is a law that forbids them: that men cannot know the laws before they are made, nor a law can be made until (men) agree…” Thomas Hobbes. Leviathan. Cambridge: Cambridge University Press. 1997. P. 89.

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“In this war of each man against each man19, there is a consequence: nothing can be unfair. Notions of good and evil, justice and injustice do not have a place here. Where there is no common power, there is no law: where there is no law, there is no injustice (...) Justice and injustice are not body or spirit’s faculties. (...) They are qualities that refer to man in society, not in solitude”.20

In this type of more incipient society, justice is summed up in law and therefore, justice does not acquire its true dimension, which is the ‘moral’ dimension (being the social virtue par excellence). Besides, this society individuals' act fundamentally motivated by coercion: they respect the laws because they fear punishment, even if they have made the pact themselves.

It is when ‘law’ and ‘justice’ are clearly differentiated in their origin, foundations and objectives that the true nature of both is clarified and this already implies the transition from ‘what is legal’ to ‘what is moral’, which does not mean that what is moral excludes what is legal, but that the moral act is not any more motivated by coercion, but by the self-determination of reason itself and beyond the existence of coercion.21 It is only then where what is legal and what is moral is differentiated that justice appears in its whole moral dimension.

Before we continue, let us try to give examples of this difference and the superiority of what is moral in relation to what is legal. For example: to regulate a working day in eight hours belongs to the legal field in the relationship employer-employee, but the qualitative and/or quantitative differences that enrich that eight hour law belong to –and when more negotiated and qualitative- the morals’ field. For instance: that working conditions be adequate, regarding machinery, human protection, etc; that if everything goes well for the employer he/she will make economic improvements for the employee and with certain protections (such as family insurance, for example); that the employee feels obliged to the company and contributes to its development, etc. These are not legal relations themselves but moral ones, since the human being here is being taken each time more as an ‘end in itself’ and not any more as a simple ‘means’ or ‘instrument’ for a determined task.

Now, we have said that justice’s foundation lies in a petition of principle, but we have not yet clarified law’s foundation. Which is law’s foundation, if it does not depend on justice? I do not see any law’s foundation but the mere believe in it; the credibility we give the law.22 What gives law its basis is the mere believe that we 19 It is worth pointing out that as ‘war of each man against each man’ Hobbes understands coexistence in the ‘natural state’, that is a state where there is no ‘law’, but ‘the law of the fittest’.20 Hobbes, 1997: 90.21 The perfect example of this difference between what is legal and what is moral, where what is legal is a previous instance to what is moral, is constituted by Immanuel Kant, when he separates between the warrants that order an action “for obtaining another thing”, which belong to legality –hypothetical imperatives- and those that order an action “by itself”, which belongs to morality –the categorical imperative. See: Immanuel Kant. “The Foundations of the Metaphysics of Habits”. In: The Foundations of the Metaphysics of Habits. Critic of the Practical Reason. Perpetual Peace. México: Porrúa. 1975.22 It is important to note that it is not the same ‘to believe in’ than ‘necessity of’, although the difference between both could be subtle. Believing is a ‘passive act’ –Derrida will say ‘act of

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have in its necessity; because we believe that it is necessary for human coexistence is that the law is maintained. This has been well explained by Jacques Derrida, when pointing out that authority’s foundation is mystic. I think that the following text is twice as interesting, since it also differentiates legality, or the right, of justice:

“Law’s justice, justice as a right, is not justice. Laws are not fair because they are laws. We do not obey them because they are fair but because they have authority. The word “credibility” supports all the weight of the proposition and justifies the allusion to the authority’s “mystic” character. Laws’ authority only lies over the credibility attributed to them. We believe in them, that is their only foundation. This act of faith is not an ontological or rational foundation”.23

IV. The comprehension of Justice as Equality: is it desirable? Is it possible?

1. Is equality desirable?

Having clarified the relation between justice and law, let us now go to the second relation that we are interested in analyzing. From the different existent theories and taking into consideration our previous quotes, it is clear that equality is conceived as a synonym of justice. We now have to analyze the pretended association between ‘justice’ and ‘equality’.

Two questions are fundamental here: (1) is equality desirable? and (2) is equality possible?24 Nevertheless, to answer these questions we have to first clarify what we understand as ‘equality’. The first thing to point out is that ‘equality’ alludes to a ‘relation’ and nothing more: it is a concept that 'puts in relation’ two or more things, persons, etc.; but in itself, the concept of ‘equality’ does not have value. Value is acquired by its association to freedom. Let us explain the process.

1.1 Equality gained from Freedom.

Modernity brings freedom as a fundamental value. ‘Freedom’ is the expression of ‘rational autonomy’ in practical life; it is ‘illustration’. But, what does this mean? And in what extent is this linked to equality? The fact that modern liberal thinking puts the priority over the individual’s freedom, means that the individual has freedom in reference to other individuals –civil society- as well as in reference to the State. This means, more explicitly, that if "we are all free" –"equally free"-

faith’-, while need is a ‘requirement’ –an act of reason. Also, that is why, what is moral, when distinguished from what is legal, it’s a superior step to what is legal, insofar specifies a higher level of rational development.23 Jacques Derrida. Force of Law. The Mystic Foundation of Authority. Madrid: Tecnos. 1997. pp. 29-30.24 We could also ask: equality of what? And of whom? The answer here grosso modo is equality of goods and among people, but this is not so simple and takes us to different possible classifications too.

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then, we all have “the right to” –“equal right”- to choose the way of life that we wish for ourselves, as long as we do not attempt against the way of life others also choose as an expression of their own gained freedom.

Then, freedom entails equality at its heart, since to propose that “all of us are free” makes us immediately “equally free” for any project and of any hindrance. From Modernity, all of us become free in equal proportion or measurement and two key modern expressions allude to this: “equality before the law” and “equal opportunities”. The universalization of the concept of ‘equality’ as a moral concept is basically modern and comes up because equality appears intimately linked to the central concept of freedom. Also, that is why justice has acquired a status essentially linked to equality. Nevertheless, this has to be very specified since, as said when quoting Bobbio, justice has always been linked to equality: the key point is that there has not always been equality among ‘all’ persons.

Premodern periods were essentially unequal; hierarchical. In those days, the association of ‘justice’ with ‘equality’ alluded in general to the same treatment between classes or similar facts according to categories. That is, the concept of equality did not have an ‘universal’ moral dimension. What modern democracies do precisely is to universalize the Greek ideal: for the Greek democracy was the people’s government, of the citizens. Nevertheless, only a few were citizens: the ones that were free and equal. Modern democracies universalize the ideal of ‘freedom – equality’ for all persons: from Modernity, we all are citizens and, in this measurement, we enjoy equal rights and duties. 25

1.2. Freedom as Rights and Rights’ Equality.

This way, ‘rights’ are the expression of ‘freedom’ and ‘duties' are the expression of ‘equality’. That is why justice –as Rawls previously said- takes care of the distribution of basic rights and duties and also understands those rights as basic fundamental freedoms, insofar these types of freedoms have to be coextensive for everybody, or be the ones from which we all have equality: equal right. Also, that is why justice is associated to equality but, let us remember that it is “the equality of freedoms” and not any other equality in particular. Agnes Heller specifies this when saying that “…in a modern democracy, the equality of freedoms is due to each citizen. This, and nothing less than this, is what is fair”. 26

But, which are these basic or fundamental freedoms? Rawls responds in a very complete manner:

“Basic freedoms are political freedom (the right to vote and to be elected to occupy public positions) and freedom of speech and assembly; freedom of conscience and thinking; a person’s freedom includes freedom regarding psychological oppression, physical aggression and dismemberment (a person’s integrity); the right to

25 For those interested in democracy, I have published an article about the problems democracy faces today. See: Gisèle Velarde. “Can democracy solve your problems? In: Agenda Internacional. Year Vii. No. 15. Lima: IDEI – PUCP. April. 2001. 26 Agnes Heller. “Thesis about Social Justice”. In: Occasional Studies. Social-Legal Investigations Center CIJUS. Bogotá: Universidad de los Andes. November. 1997. p. 33.

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personal property and freedom regarding arbitrary arrest and detention, as is defined by the concept of rule of law”.27

We could culminate this part answering our first question and we could say that equality is indeed desirable; at least if it is understood, as it generally occurs from Modernity, as ‘equality of freedoms’ and if those freedoms allude to our ‘basic freedoms’. The question we have to tackle now is if this, if equality, is possible.

2. Is Equality possible?

We have already said that equality is desirable; we have to then specify now if it is possible. Nevertheless, before tackling this second point, let us argue a little about the “desirable” aspect of equality and let us ask ourselves again: is equality “really” desirable? Is it true that whoever has freedom and, specifically speaking, freedom of conscience and thinking necessarily wants equality? Does the talented wish to be treated the same way as the average person or the stupid one? Does the poor wish to be treated the same way as the rich and vice versa? I see a problem in the pretended ‘equality of freedoms’ and it is that freedom, or the developments of freedoms, do not entail ‘necessarily’ equality, not only because it is difficult to reach this situation, but because it is not desirable by the individuals themselves, and in some occasions it seems that it is not necessary either for society’s well-being. This affirmation opens many problems that we cannot tackle now as a whole, but the one we are going to tackle is the perspective of freedom itself –of the individual freedom-, since the perspective of freedom, or the development of rights, entails in itself a paradox that impedes its delimitation.

Most rights have been created by individuals and have been established through pacts, social consensus, in Constitutions, etc. Nevertheless, from the moment in which rights are established through something as contingent, empirical and even arbitrary as pacts, rights show their mutability: it is the right of the one who exercises freedom, of the one who has conscience of his freedom (as well as to the nature of pacts themselves) to ask for new rights and refuse existent rights; in one way or another to “go against the norm”.

The validity of certain duties and rights is not only established in the pact28, but to last it is not only necessary to have law and power, but individuals’ will; since, where do rights come from? From nothing different than from our conscience of them, that is the same as the freedom’s conscience that we have and, therefore, of the eternal possibility to reformulate existent rights and create new ones. That is why we do not conceive that equality can be considered as desirable “just like that”, but that is desirable while it regulates relationships that are to the advantage of most of the society in general, and that individuals understand it as such. While

27 Rawls, 1997: 68.28 Regarding an ethics lecture about the absence of pact in Perú, see an article I published in the ‘Copé’ magazine. Gisèle Velarde. “Current Perú: between the culture of ‘Pepe, el vivo’ and the possibility of being a nation”. In: Copé. Vol. XI - No. 27. June - 2001. Lima: Petróleos del Perú Editions - Petroperú.

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saying this, we are also showing that equality is not possible, at least not totally and/or in a definitive manner.29

2.1. Rights’ Paradox

What occurs from Modernity and since the moment rights belong to each individual, and are not any more the prince’s attribute, is that certain paradoxes begin to be produced in the conception and validity of the rights themselves. There are two points that I wish to mention here:

(1) The first one is to say that even though rights are created by individuals, there are going to be multiple rights, as many as there are individuals with conscience of whatever rights there are. For example, regarding the subject of taxes: ‘A’ can consider that he must not pay taxes ever; ‘B’ can consider that he must pay, but under certain conditions; ‘C’ that they must be paid only when there is certain confirmed well-being, etc. The paradox here is that even though rights come up as an expression of an individual’s freedom against the State’s power, since the moment they belong to the individual –and not to the State (or prince)- society becomes ‘not limited’ and it is lost as a ‘whole’30: therefore, the permanent difficulty in which justice is, as well as the absolute necessity for a pact or constant agreement.

(2) The second point is that rights acquire their identity –are raised to the status of 'right'- as long as somebody enunciates, establishes and/or divulges them: when this is done we are giving the right an “identity”, we are creating it as such. Nevertheless, to create rights entails that others will interpret them in the same way or another than the creator does. Then, another paradox comes up: the identity I give the right that I enunciate can be understood or “read” in a different way by another one. I can enunciate or create ‘the right to live’. However, this right can be interpreted by others in a different way: that life is respected just like that, that it is respected until it makes sense (for example: apply or not abortion or euthanasia), that it is respected until I am not in danger (theft, assault, murder, etc.), that it is not respected when somebody has assaulted me and I am hurt for life or emotionally and/or physically annulled, or until it is not respected if I decide that my life is not worth it; and so on.31

29 Even in totalitarian regimes, where people pretended to be totally equal, those who had the power were (self) excluded of this equalization. Regarding totalitarianism, see: Hannah Arendt. The Origins of Totalitarianism. Madrid: Alianza. 1982 – 1987 and Raymond Aron. Democracy and Totalitarianism. Paris: Gallimard. 1996.30 This did not occur when rights were considered the prince’s attribute and all individuals were his subjects; then, individuals lacked of rights and basically had only duties.31 Claude Lefort makes a very interesting account about these paradoxes that comes up in Modernity. He talks about three paradoxes, of which the one I omit is the most important paradox for the purpose of this article. Nevertheless, I omit it because the analysis we are making does not seek to confront the State, but to analyze the situation itself from the individual’s environment and/or mere freedom. However, it is worth noting that the missing paradox alludes to the fact that for a right to be ‘real’, for it to really occur in society, it is not enough that individuals enunciate it, but that the State has to recognize it: the paradox here would be that even if rights come up as an expression of the individual’s autonomy in reference to the State, they do not acquire “reality” –validity- without the State’s recognition. See: Claude Lefort. “Man’s Rights and Politics”. In:

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Thus, we see that no matter how desirable equality is, in practice it is confronted by multiple and difficult situations. Then, equality always understood as equality of rights, is formally viable and theoretically necessary; nevertheless, in practice, the possibility to understand and respect rights is plural, diverse and often contradictory. Evidently, whenever more cultivated, illustrated, rational and moral a society is, equality will be more viable, the pact will be more permanent, and the comprehension of right more united.

2.2 Merit in Justice: a permanent conflict.

We have noted that “desirable equality” is not really as desired and/or that is presented with diverse internal conflicts. This is even more aggravated when we make allusion to ‘merit’: when somebody considers that he/she has “more right than other persons regarding goods in question, taking account of the merit he has”. But, how is merit measured? Walzer maintains that:

“The principle that maintains the idea of meritocracy in the opinion of the majority of its advocates is simply this: positions have to be occupied by better qualified individuals, because qualification is a special case of merit. Individuals can or cannot deserve their qualities, but they deserve those positions where their qualities have place”. 32

Thus, merit links talent or quality to the position, that is why qualifications and exams are, in general, meritocracy’s own criterion. Nevertheless, this answer is unsatisfactory since it does not reach the heart of the matter, and besides it does not resolve other problems, such as some new ones that could be proposed from the following case:

Mario has worked a lot all his life and has bought a house, invested in his children’s education and in different family insurances. The government decides to expropriate his house to build a highway and raises taxes so much that his education projects and life insurances are threatened. Mario considers that the situation is unfair, since he has honestly worked for years to reach this status and considers that nobody –not even looking towards common good- can ask him to give up the rights he has acquired, or has gained with his effort; here specifically the ‘right to property’ (his house) and the ‘right to elect a certain way of life’ (education, medical insurances, quality of life, etc.)

Therefore, these questions come up: what do we have the right for? Which are our rights and who determines them? Do we have the right to have rights? Is merit a criterion to acquire rights? If this is so, how do we determine if an action has merit or not? We have answered already some of these questions throughout what has been pointed out until now; the problem here is the conflict with merit that is now growing since there is necessarily no qualification in between. It is worth mentioning, and before continuing, that there is not an ‘absolute’ answer to the question of if we have the right to have rights; we simply –reason- have

The Democratic Invention. Bs.As.: Nueva Visión Editions. 1990. pp. 23-24.32 Michael Walzer. Spheres of Justice. México: F.C.E. 1997. p. 146.

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decided that we have the right from Modernity; but there is not any universal reason, necessary, or transcendental, to maintain that to have rights is a human being’s inherent right.

Going back to Mario’s case, where the ‘right to keep the property’ and ‘the right to have a certain quality of life’ have been “gained” by him and there was not necessarily any qualification for that. The question is: how to refute him? Is it possible that his work and effort –even if they do not figure on a paper and/or cannot be measured by qualifications- are not (socially) relevant? I do not think it would be fair to answer that they are not, but sincerely I do not know well what could “fair” mean here.

This is a complicated problem inside justice, since the effort and, above all, talent always pretend a especial status; precisely the controversy about the pretended desired equality was introduced from the case of the “talented”, who did not want equality of opportunities with the “stupid” –and even with the “average”. Diverse justice theories have treated this problem and have debated about what to prioritize: if ‘talents’ or ‘equality of opportunities’. Rawls concludes that to give equality of opportunities to all is fairer than prioritizing talents33; Walzer separates goods in different justice spheres and attributes each sphere its own distributive criterion, independent, with the purpose of avoiding the tyranny of one or some goods over the others, and with the idea that everybody can have merits according to the goods they possess or develop better, and therefore achieve social equality.34 However, I think that in practice, none of these answers leave us satisfied.

Furthermore, and being even more controversial, merit becomes precisely central from Modernity, since it is the fruit of freedom’s development, as well as the ideal of equality that freedom entails. In premodern societies there was not much place for merit due to their hierarchization. Nevertheless, equality in modern societies through democracies, or the end of governments and hierarchical forms of life, has brought the famous “fight for recognition”, as long as once individuals are equaled -at least in theory- they have begun to fight to differentiate themselves from others, to gain their own place in society. Therefore, the place one once had by class, by birth, has now to be gained, each one has to gain its place –its value- and, then, competition to be different from one another lies in wait for and with this, of course, merit becomes a central subject. Everybody’s equality brings the differentiation of some through merit. One more paradox!35

33 Rawls’ model of fair society is “Democratic Equality”, which maintains the maximum basic coextensive freedoms for everybody (first principle) merged to the prioritization of the principle of difference (inequalities are only allowed as long as they benefit the group in worst conditions) with equal opportunities for everybody (both represent the most adequate interpretation of the second principle). See: Rawls, 1997: 67 and ss.34 Walzer, 1997. (Chapter: “Complex Equality”).35 “…democratic revolutions in the modern period (…) culminate with the replacement of a single title for the hierarchy of titles. The title that wins after all (…) comes from the lowest aristocrat category or of the gentlemanly order. In the English language, the common title is master, condensed in Mr…”. “In a society of masters, the race is opened to talent; recognitions are for anybody who can gain them. (…) equality of tiles generates an equality of hopes and then a general competition”. “Given that it does not have any set category, given that nobody knows where he/she belongs, he/she has to establish its own value, and he/she can only achieve it by

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Likewise, Walzer considers that "merit implies some sort of very rigorous titles, so that the title precedes and determines the selection”.36 Then, would we have to say that now we are all ‘equal’, that we are all ‘citizens’, that there are no more hierarchies, nor societies with titles (nobility), merit turns out to be a “distinguishing title” that we have created to make us different from others –no longer by birth, but now by daily fight and effort- and for which we constantly compete?

I think that merit is also linked to the creation of rights mentioned before, but the point that makes it more difficult to specify and regulate it, is that, in reality, it is referred to a ‘self-creation’. ‘Merit’ represents a ‘self-creation of rights’, that is, it gives origin to rights themselves, but in contrast to basic rights, it is created “for oneself” and not necessarily for others. This situation that makes merit a self-imposed right in principle –moreover in cases where qualification is not applied-, puts rights not only in a paradoxical, but deeply conflictive situation, as long as rights (and duties) came up as an expression of the ideal of ‘freedom-equality’, and in this measurement they have to be shared by everybody equally, but in merit, freedom “claims itself” and we would not know how to deny it this possibility. Are not the talented, the creative, the great innovators of society? Would it make sense to deprive them or reduce their capacity? Have not the ideas in which society is arranged come from them, including, of course, the conceptions of justice in particular? 37

We could go even further: what would happen in the following case? Philip lives in a slum area and works every day in a residential house. He and his employer are honest and have a good relationship. Nevertheless, Philip thinks his situation is unfair: “it is not fair that my employer has so many things –money, opportunities, property and tranquility- and I do not”. Here, justice is linked to necessity (distribution of goods) as well as merit; what is unfair consists on that

gaining the recognition of its peers”. These quotes have been extracted from Chapter XI – “The Recognition”, where Walzer explains the transition of premodern hierarchized societies to modern democratic societies. See: Walzer, 1997.36 Walzer, 1997: 147.37 We exclude from this comment those considered as “destructive” in society. Nevertheless, this is also a problem that merges with the one about talents; it is its ‘negative side’. It is important to point out here that the heirs of a strong leftist position favor total equality and do not accept Rawls’ ‘difference’s principle’. Even though this is difficult to understand today in a context where freedom is not in question, but is rather a usual start in every human project, the social weave’s incidents of certain human groups have motivated this critical controversy. When Ronald Dworkin was interviewed by Bryan Magee, the first one referred to the leftist position: “They believe that the damage to their own estimation, that makes others be seen in better conditions in the social structure, it is such a malignant influence over personality, that people deep down cannot really find themselves in a better total situation, even if they are materially in better conditions. Of all of Rawls’ critics, I would say that the fiercest controversy is this thesis: “Annoy yourself, to annoy others”.” Personally, I agree with Dworkin in that this critic is extremely controversial, and even though each social context must be evaluated in particular, positions of this nature promote mediocrity in society and turn humans into beings without initiative or dynamism. See: Bryan Magee. Men Behind Ideas. México: F.C.E. 1982. (Philosophy and Politics – Dialogue with Ronald Dworkin).

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some have more goods than others, but in this case, above all, in that it comes determined beforehand.

For merit’s purposes, the following questions come up: does "natural lottery" have to be regulated? Is this a problem of justice? Is merit –in its diverse forms- a subject inherent to justice? Is there anything such as an universal merit? Is this a problem of rights? What is Philip complaining about? It is evident that he is complaining about his ‘natural condition’, which he considers as "not deserved".

Here we have to face what we can call universal merit or historic determinism, and we do not find any rational basis regarding this. That is, we do not see how we could base the inequality between human beings from a non-social and a non-historical point of view. Neither I think that, posed like this, the problem is, strictly speaking, a ‘rights’ problem; but it is indeed a justice’s problem that Philip improves his condition or, in any case, has the right to a better life. It will depend on the concept of justice inherent to each society to find the distributive criteria that entail common well-being and social harmony –and it is worth pointing out that inequalities, even though they remain, cannot be extreme; poverty is a moral problem in any society.

In our paper we have not talked about goods such as income, resources, properties, etc., and we have done this on purpose, given that the economic direction and diverse distribution criteria linked to them did not belong to this paper’s objectives, as we mentioned initially. However, what is a fact from what has been mentioned in this last section is that freedom has entailed rather ‘inequality' than ‘equality’, and even more every time.38 Very few societies have been able to express, in a united manner, respect for freedom linked to equality, a concept that can accept certain inequalities but not extreme ones.

However, the economic point is central, since freedom was not developed while basic necessities were not satisfied in general and, once freedom was developed, it searched for life’s equal conditions for people, going many times through revolutions to be able to reach its full realization.39 The greatest paradox is that we have returned to inequality and this time from the ideal of freedom that was precisely searching for equality. Nevertheless, I think that in the essence of freedom there is the possibility of equality as well as inequality. Precisely, what justice theories have to find is the balance between both, and that is the great and incomplete challenge that all societies have.

38 Amartya Sen studies just tackle this problem: his economic proposal is profoundly ethical.39 See: Hannah Arendt. On Revolution. Madrid: De Occidente Magazine. 1967.

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