20th WCP: Government, Justice, and Human Rights

"We hold these truths to be self-evident: that all men and women are created equal: that they are endowed by their Creator with certain inalienable rights;...that to secure these rights governments are instituted...." - Elizabeth Cady Stanton, "Declaration of Sentiments"

Does government have an obligation to act justly? John Rawls cites justice in A Theory of Justice as the "first virtue of social institutions" (1971, p. 3), of which a government is one example. He writes expansively in the beginning of his book on the importance of justice and of its centrality in a "well-ordered" society. Eloquently, Rawls extols the primacy of justice, and asserts that no matter how efficient and productive the government and the laws issuing from it may be, if the government or its laws are unjust they must be changed (although he does say later that statements like this one may have been put too strongly) (1971, p. 4). The "well-ordered" society, as described by Rawls, has two characteristics: (1) it furthers the interests of its members and (2) it is organized according to a "public conception of justice" (1971, p. 5). When citizens have a public conception of justice "they understand the need for, and they are prepared to affirm, a characteristic set of principles for assigning basic rights and duties and for determining what they take to be the proper distribution of the benefits and burdens of social cooperation" (1971, p. 5). In this optimal society the principles would generally be the same throughout the society and would be enforced by the State. Clearly, this would represent government at its best: everybody agreeing on the governing principles and the State instituting just those principles.

In the opening to his book Rawls sketches, then, an outline of a well-ordered society with three components: (1) it advances the interests of its members, (2) it is governed by a public conception of justice which is (3) itself compliant with a concept of justice which incorporates measures of equality and impartiality.

Two of the three components of Rawls' societal exemplar involve justice. Justice, according to him, should be a primary concern of a governing body. He goes on to develop and defend the concept of justice as fairness and to present its concomitant principles. Rawls writes convincingly of the centrality of justice; although other philosophers agree that justice is important, they differ on the degree of importance. Is justice one of the goals toward which a government should strive? Is its achievement a moral imperative for the State? Is justice intrinsic to the concept of government?

Different authors have offered different answers to these questions. Immanuel Kant views justice as intrinsic to the concept of government. He defines a State as an institution operating under "laws of justice" (1965, p. 77). Kant holds that the "laws of justice" are necessary a priori, and the Idea of the State as well as these laws of justice serve as the exemplar for real States out in the world.

Locke weighs governments against the backdrop of the alternative, the state of nature, and his intertwined criteria: the law of nature, which is reason, and the will of God (1947, p. 123). The law of nature ascribes to every man the qualities of being "equal and independent" (1947, p. 123) and the freedom to do with his person and property as he sees fit, to the extent that he does not encroach on the next man's identical rights (or try arbitrarily to destroy himself). When a man leaves the state of nature, he should only do so in order to enter into an association, which is to say, under a government, which will protect the same rights which he had in the state of nature (but perhaps was not able to enforce). The government must be just, therefore, in order to protect these rights which each citizen brought with him into the political institution; if the government is not just, then members have not gained from their citizenship in the government: They would have done better to have taken their chances in the state of nature. Locke declares that God, nature, and the faith of the people have set boundaries demarcating the areas within which all governments should stay, and among these is just rule characterized by equity and impartiality: "First, They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plough..." (1947, p. 194).

Rousseau writes that a "legitimate" government should obey the general will. The formation of laws, administration of laws, and dispensation of justice in the courts should all conform to this general will. The wills of subsections of the populace are only particular; one does not reach the general will until one takes into account the will of the largest possible group (the more inclusive the group the more just the will): in the case of citizens of a country the general will is made up of the combined will of all the citizenry. (1) Rousseau answers the question, "How does one know that one is following the general will?" by writing that the most general will is always aligned with the public interest, which is characterized by fairness. If the rulers want to follow the general will, they have only to act justly in order to accomplish it (1987, p. 371). Again justice is introduced. Rousseau maintains that a legitimate government follows the general will, whose earmark is justice. The social compact, which establishes this just government, ensures that all citizens are equitably and impartially treated - no actions guided by the general will are individual or unfair. At such time that the general will, the collective will of the citizenry, should be overruled by the "executor of the laws," the government ceases to exist (1955, p. 64). Rousseau, then, feels that legitimate government is tied very closely to justice: the legitimate government is guided by the general will, which is just; when the government is no longer guided by the just general will, it is no longer legitimate. Justice is introduced into government as a quality of the general will and of the actions resulting therefrom. "What is most necessary, and perhaps most difficult, in government, is rigid integrity in doing strict justice to all..." (1987, p. 375).

Let us separate two considerations: one, must a government be just in order to be a government at all? If justice was by definition part of government or intrinsic to government being what it is, then a government characterized by injustice would cease to be a government. There would be no unjust governments, simply governments (that were just) and "non-governments." Among the ways that a government could bring about its extinction, according to Locke, is the cessation of justice: "When there is no longer the administration of justice for the securing of men's rights...there certainly is no government left" (1947, p. 232). In a situation like this, the people simply no longer owe allegiance to the (former) government. In Locke's view, then, the government no longer dispensing justice would dissolve into non-government.

This does not seem to be a universal understanding. "Government" used in its familiar "social-scientific" sense is a sturdy institution which is not nullified when its policies are deemed partial, unfair, unjust. We do classify governments as just and unjust, and unjust governments, although provoking criticism and complaint, and possibly even revolt, are not automatically stripped of their governmental charters. Is there agreement on what a government must do in order to remain a government?

No, there is not. For while Locke and Rousseau, among others, may feel that governments are essentially linked to justice and fair play, Robert Nozick, among others, links them to power. (2) According to Nozick and Weber, what is critical to a government being a government is its monopoly on the use of force. The state has the muscle, and the legal sanction, to make those within its boundaries do as it wishes, and it is the only entity in that territory with that power.

If the state is not by definition "just," if justice is not government's essential criterion, then does government have a moral obligation to be just? If one were a contract theorist, one might argue that government does have an obligation to be just, but this obligation could be traced to the stipulations of the contract, rather than to the nature of government itself.

I do believe, however, that there is a moral imperative enjoining government to be just. The moral imperative follows not from the nature of government per se, but from the citizens themselves. The moral imperative is locked in because of the right of each human being, as rational agent, to certain treatment and certain forbearance on the parts of others. The rights to which I am referring are minimal - stark when compared to the plethora of rights abounding in some societies - but they are rights which attach to human beings as entities capable of rational deliberation and moral choice. They are rights which must be honored individually by other human beings and severally by collections of human beings, including governments. Each human being has a right to the minimal respect due a person, to forbearance from harm by others to self and property. Loren Lomasky writes that basic rights represent moral limits on the actions of others, restricting each from interfering with others' project pursuits in order that he or she may enjoy the same freedom to pursue personal projects. One gives respect in order to receive the same respect in return (1987, p. 83). Lomasky's view of persons as "project pursuers" may have a rather Western slant, where the ideal is of the autonomous individual yearning for self-fulfillment rather than filling an inherited role in a tightly interwoven community; still, he reiterates the theme that each is due equal respect, however that translates culturally. Ronald Dworkin comments on Rawls' central precept, "justice as fairness," by stating that it is founded on our beliefs that all men and women have a "natural right" entitling them to equal concern and respect. They are due this right because they are human beings who have the abilities to "make plans and give justice" (1977, p. 182). H.L.A. Hart, Joel Feinberg, John Locke, Robert Nozick, among others, unite in advancing the thesis that there are at least some rights which precede those granted by citizenship and which remain when a government falls. If we can accept this premise, that human beings as rational agents capable of moral deliberation do have some moral rights, then those against whom this right would be held would be all other human beings, both as individuals and collectives. This becomes the basis of my contention that governments have a moral obligation to act justly.

H.L.A. Hart, in his careful consideration of natural rights, "Are There Any Natural Rights?," repeatedly uses the phrase, "equal right" (1955, pp. 14, 15, 23, 24). His description of moral rights is pared down to a "right to be free," similar to Lomasky's "right to noninterference," in which all humanity shares equally. (I would like to sidestep here the issue of whether non-rational, pre-rational, or post-rational members of humanity also merit this right. I would argue that they also have moral rights, but that discussion would take us far afield.) All human beings (conveniently excluding here problem cases) have the right to minimal respect and noninterference from others; most importantly, they have a right to equal minimal respect and noninterference from others. Each human being as a rational agent and maker of choices has the right to the same level of respect as any other: the respect is grounded on a base level ability common to all (again excluding problem cases) human beings.

Why not have differing levels of respect and noninterference depending on differing abilities? Human beings demonstrating mind-numbing levels of rationality or scoring in the 99th percentile on rationality tests could be accorded higher levels of respect and noninterference than others. But the respect is not parceled out in chunks upon receipt of rationality vouchers, or distributed as a reward for dexterity in forming Venn diagrams or executing syllogistic reasoning. It results from humanity as a group crossing a threshhold; because human beings can make choices, importantly moral choices, and formulate plans, they are due the opportunity to make the choices and design the plans. No matter how well or poorly thought-out the plans or how selfish or altruistic the choices, the fundamental human ability to choose and plan grounds the moral rights equally for all human beings. The ability is a shared, species-wide ability (I do not mean to claim that this has some biological foundation) and the concomitant moral rights are also equally shared.

Being treated equally is one of the indicators of justice. Rawls muses about justice "always expressing a kind of equality" (1971, p. 58) and John Stuart Mill claims that equality is "included among the precepts of justice" (1987, p. 474). Being treated justly, in the sense of being treated fairly and equitably, would seem to flow naturally out of the minimal moral rights mentioned above. (I am referring here only to fairness and equity in respect of basic rights, not with respect to distribution of resources, as presented by Rawls.) Relating to others respectfully requires evenhandedness: It would be disrespectful to take advantage of someone, cheat her or coerce her into an action. A State, recast here as a collective of human beings, should operate with the injunction that it must respect all human beings based on recognition of their moral rights. In its pursuit of that goal, it would be forced to act justly, for to treat another with respect, in Kantian terms as an "end" rather than as a "means" only, is simply to act with the equality and impartiality that characterize justice.

It might be charged that if the government has to treat everyone justly and with this minimal level of respect, then it would have to treat citizen and non-citizen in the same way. Citizen and non-citizen would be afforded security and protection under the law. So diffuse would government regulation become that it would be difficult to tell where one country ended and another began since all persons would be showered with benign superintendence. This charge stretches "minimal respect and just dealings" to an unsupportable extent. The possession of minimal rights does not entail voting rights or other benefits accruing from citizenship. It simply ushers forth forbearance from harm, justice in transactions.

A question has been raised as to whether grounding the justification of the state in the upholding the rights of its citizens may not be too strong; that is, it would preclude states from taking actions that are necessary for the maintenance and progress of the state, such as sending citizens to war, or exercising "eminent domain" over property. To this objection I would argue that having a right does not guarantee that a person always gets her way. This would depend on whether there were another competing and equally valid right held by another or whether there were some compelling need by other right-holders which could temporarily override the claiming of the original right. Having rights would entail that a person's concerns, goals, interests would be taken into account and weighed carefully against the competing claims of other rights-holders. It would ensure that citizens not be sent to fight wars for frivolous or unjust causes, that they not be tricked or forced into testing mustard gas, Agent Orange, or suffering unnecessarily the long-term effects of syphilis, and that they not have their house demolished to build a freeway without good reason and compensation. If, as Locke and others argue, the state's only raison d'être is the betterment of its citizens' lives, then I see no reason why the argument that the state must recognize the rights of its citizens and base its actions on upholding those rights would be deemed dangerous.

A State is obligated, then, because of the moral rights attached to humanity, to relate to all human beings with which it comes into contact with at least minimal respect and forbearance, or more succinctly, with justice. (3)