Very often, we think of justice or injustice as either a matter of law or a violation of our rights. The rights that come to mind most easily are probably those of Life, Liberty and the Pursuit of Happiness or those guaranteed by the Constitution and subsequent amendments. So to take a person’s life against their will is viewed as a grave injustice. To abduct and confine a person is an injustice. However, people seem to claim far more rights than we really have.
Does this statement sound familiar to you? “This is a free country; I have the right to do pretty much whatever I want. Have you ever caught yourself saying these things? “She doesn’t have the right to do that to me!” or “What gives him the right to do that?” So who or what gives anyone a right? What is the source of justice?
Historically, neither the ancient Greeks nor the ancient Romans paid much attention to individual rights. Justice was considered in rather general terms such as reasonableness and moderation, equity and fair distribution of goods. For Socrates, the concept of justice was more a means by which to judge a person’s character. In Plato’s Republic he applies justice to both the state and individuals. In the state, justice is what leads to harmony and peace. In the individual, justice takes the form of a selfless and rational commitment to do the morally right thing.
For the most part, the ancients viewed the world as having a rational, reasonable order and they believed that human societies naturally ought to run in that same rational, reasonable and orderly manner. Both natural and general man-made laws were widely accepted and these ruled the populace. Therefore, they had little to say about social justice or individual rights. We can find, however, among the writings of Diogenes (412-323 B.C.) opposition to both class hierarchies and slavery. So these particular human rights issues have a very long history.
Natural laws are those we find in nature, including our own nature. The first of the man-made laws on record are the laws of Moses. In his treatise on Politics, Aristotle defined law as “reason without passion.” Aquinas defined it as “an ordinance of reason, promulgated by one who is responsible for the good of the community.” Generally it was the king or emperor or other singular ruler who devised the man-made laws. At its root, law is a command declared by a sovereign. But what enters into the concept of sovereign? What distinguishing between law as something to be faithfully obeyed and law as but a command seeking to conceal arbitrary, immoral and tyrannical modes of control? What constitutes a just lawgiver? In Medieval England, in King John, we have an example of one who was responsible for the good of the community, but the community did not feel at all good about his rule. He was not unique in this.
The authority and validity of law result from its embodiment of moral aims widely shared in the community and of a nature to justify the values and practices of the community. The very concept of law requires some assurance of the law’s fairness, consistency and clarity. But this alone is not enough. Much of the South accepted slavery as a property right. However, a widely shared value does not make something correct or a right.
The first we see of individual rights similar to those we claim today would be in the Magna Carta. The Magna Carta was signed in June 1215 between the barons of Medieval England and King John. Under the threat of war, King John was forced into signing the charter that greatly reduced the power he held as the King of England and allowed for the formation of a powerful parliament. The Magna Carta thus became the basis for English citizen's rights and ultimately for those we now cherish.
Among the rights granted under the Magna Carta was the right to due process that led to trial by jury. The Church was to be free from royal interference, especially in the election of bishops and individuals were granted free exercise of their religious convictions. Additionally, no taxes, except the regular feudal dues, were to be levied, except by the consent of the Parliament and all weights and measures were to be kept uniform throughout the realm.
Being the highest authority of the land, the king hadn’t needed to justify any decision or imposition of law. His word was law, his wish a command. With this shift from singular rule to that of a governing body, it became clear that people were to be ruled by law rather than by force, and actions by and toward the people would carry the burden of justification.
Out of the religious wars between Christians and Muslims came more teachings on the rights of mankind. Basic to the beliefs of all the major religions is that we are all children of God. Francisco De Vittoria (1480-1546) wrote that God’s laws apply to children of God and these laws would preserve them from torture and torment and that religious ignorance or the waywardness of a people could not justify inhumane acts toward them, even during war. Perhaps this was the beginning of the Geneva Conventions to be observed by all civilized societies today. The Geneva Conventions comprise four treaties and three additional protocols that establish the standards of international humanitarian law, which regulates the conduct of armed conflict.
In war, the rule had always been “might makes right”. Following the religious wars between Christians and Muslims, Vittoria proposed the idea of a “just war” including the stipulation that “mercy is the perfection of justice”. So now justice is measured against motives and the motives had to be faithful to religious values.
On the personal level, only self-defense could justify the use of lethal force. At the level of nation-states, however, there was a larger purpose to be served. That purpose was the preservation of peace. Thomas Aquinas established specific criteria for a “just war”. He determined that for a war to be just, three things were necessary.
1.) The authority of a sovereign by whose command the war was to be waged.
2.) That those who are attacked should be attacked only because they deserve it on account of some fault and
3.) The attackers should intend only the advancement of good or the avoidance of evil.
If a war were declared just, three additional principles determined what could justly be done within the waging of the war.
1.) Non-combatants had immunity
2.) The warring party, seeking no more than the advancement of good or the avoidance of evil, must itself avoid evil (No raping or pillaging…)
3.) The war must be waged with restraint, applying no greater force than necessary to achieve the intended good.
So the motivation for war must not be corrupted by considerations of wealth or power or territorial gain.
If these are principles that might plausibly justify warfare, are they also applicable to relationships between individuals or between individuals and the nation or state? If a nation might justly make war with another in order to secure peace or avoid evil, might it not also impose on its own citizens certain forms of conduct and life that it considers consistent with peace and decency? If that is the case, who determines what is good or evil, decent or indecent?
The use of force in this context has generally been limited to the prevention of harm. John Stuart Mill (1806-1873) made this principle the primary justification for the constraint of liberty. So this free country does not afford us unlimited rights or liberties. Things that might cause harm and things defined as evil or indecent limit our rights. So the definition of “harm,” “evil,” or “decency” ought to be clearly spelled out. But what standards or whose standards ought to be applied to these concepts? To what “sovereign” have you given that authority?
Immanuel Kant asserts there is only one natural and inborn right; all others are derived from law and tradition. That right is freedom. Freedom is independence of the compulsory will of another. So far as it can coexist with the freedom of all according to a universal law, it is the one sole original inborn right belonging to all people.
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